Judgment;Summary — ECLI:EU:C:2022:23
Date: 2022-01-13
Language of the case: Polish
Court formation: Ninth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-327/20 – 1 
Case C-327/20 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
22 July 2020 
Referring court: 
Sąd Okręgowy w Opolu (Poland) 
Date of the decision to refer: 
10 March 2020 
Applicant: 
Skarb Państwa – Starosta Nyski 
Defendant: 
New Media Development & Hotel Services Sp. z o.o. 
  
Subject matter of the main proceedings 
Claim for statutory interest for late payment in commercial transactions due to 
failure to pay the fee for perpetual usufruct. 
Subject matter and legal basis of the reference 
Interpretation of Directive 2011/7/EU in the context of perpetual usufruct; the 
question whether the concept of goods includes immovable property and whether 
the concept of delivery of goods includes the leasing of immovable property in 
perpetual usufruct; the scope of the concepts of commercial transaction and public 
authority; the question of intertemporal provisions.  
Questions referred 
1 Must the provisions of Article 2(1) of Directive 2011/7/EU of 16 February 2011 
(OJ 1993 L 95, p. 29, as amended) on combating late payment in commercial 
transactions (recast) (OJ 2011 L 48, p. 1) be interpreted as precluding an 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-327/20 
 
2  
interpretation of Article 2 and Article 4(1) of the Ustawa z dnia 8 marca 2013 r. o 
przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (Law of 
8 March 2013 on counteracting excessive delays in commercial transactions) 
which does not include immovable property in the concept of goods and does not 
include the leasing of immovable property in perpetual usufruct within the 
meaning of Article 232 et seq. of the Kodeks Cywilny (Polish Civil Code) in the 
concept of delivery of goods, or must they be interpreted as meaning that such 
action cannot be regarded as the provision of services? 
2 If the answer to question 1 is in the affirmative, must the provisions of Article 2(1) 
of Directive 2011/7/EU of 16 February 2011 (OJ 1993 L 95, p. 29, as amended) 
on combating late payment in commercial [Or. 2] transactions (recast) (OJ 2011 
L 48, p. 1) be interpreted as precluding an interpretation of Article 71 et seq. of 
the Ustawa z dnia 21 sierpnia 1997 r. o gospodarce nieruchomościami (Law of 
21 August 1997 on the management of immovable property) and Article 238 of 
the Civil Code according to which the collection of annual fees for perpetual 
usufruct by the Skarb Państwa (State Treasury, Poland) from entities which 
engage in economic activity but were not the original entities for the benefit of 
which the State Treasury established the right of perpetual usufruct, but rather 
acquired that right from other perpetual usufructuaries, does not fall within the 
scope of the concept of a commercial transaction and of a public authority within 
the meaning of Article 2(1) and (2) of the abovementioned directive and of 
Article 2 and Article 4(1) of the Law of 8 March 2013 on counteracting excessive 
delays in commercial transactions, or must they be interpreted as meaning that 
that activity does not fall within the scope of the provisions of that directive and of 
that law? 
3 If the answers to questions 1 and 2 are in the affirmative, must the provisions of 
Article 12(4) of Directive 2011/7/EU of 16 February 2011 on combating late 
payment in commercial transactions (recast) (OJ 2011 L 48, p. 1) and of 
Article 6(3)(b) of Directive 2000/35/EC of the European Parliament and of the 
Council of 29 June 2000 on combating late payment in commercial transactions 
be interpreted as precluding an interpretation of Article 15 of the Law of 8 March 
2013 on counteracting excessive delays in commercial transactions and Article 12 
of the Ustawa z dnia 12 czerwca 2003 r. o terminie zapłaty w transakcjach 
handlowych (Law of 12 June 2003 on payment terms in commercial transactions) 
whereby they exclude the possibility of applying the provisions of the 
abovementioned directive and of the law implementing it to contracts for the sale 
of the right of perpetual usufruct to the current perpetual usufructuary, who is 
required to pay an annual fee, which were concluded after 28 April 2013 and 
1 January 2004, if the original leasing of the land in perpetual usufruct by the 
State Treasury to another entity took place before 28 April 2013 and 1 January 
2004? 
NEW MEDIA DEVELOPMENT & HOTEL SERVICES 
 
3 
Provisions of Community law cited 
Directive 2000/35/EC of the European Parliament and of the Council of 29 June 
2000 on combating late payment in commercial transactions; 
Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions. 
Provisions of national law cited 
– Ustawa z dnia 12 czerwca 2003 r. o terminie zapłaty w transakcjach 
handlowych (Law of 12 June 2003 on payment terms in commercial 
transactions); 
– Ustawa z dnia 8 marca 2013 r. o przeciwdziałaniu nadmiernym 
opóźnieniom w transakcjach handlowych (Law of 8 March 2013 on 
counteracting excessive delays in commercial transactions); 
– Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 
1964 – the Civil Code); 
– Ustawa z dnia 21 sierpnia 1997 r. o gospodarce nieruchomościami 
(Law of 21 August 1997 on the management of immovable property). 
Brief summary of the facts and procedure 
1 As a result of the taking of evidence, the court of first instance found that the 
defendant had been obliged to pay until 31 March 2018 an annual fee of 
PLN 3 365.55 for perpetual usufruct of a plot of land in Głuchołazy, owned by the 
State Treasury, which it failed to do. Therefore, the Sąd Rejonowy (District Court) 
ordered the defendant to pay the amount of PLN 3 365.55 together with statutory 
interest for late payment calculated from 1 April 2018 until the date of payment. 
The ruling on interest is justified by Article 481 of the Civil Code. 
2 However, the District Court dismissed the claim for statutory interest for late 
payment in commercial transactions. The court of first instance took the view that 
the obligation to pay annual fees for perpetual usufruct of land arises from the 
provisions of the Law on the management of immovable property and from the 
Civil Code, and not, as the applicant claimed, from a commercial transaction. 
Furthermore, the District Court indicated that the applicant was not party to the 
contract of sale of 15 May 2014, by which the defendant acquired the ownership 
of the immovable property and the right of perpetual usufruct of land. 
3 The applicant brought an appeal with regard to the dismissed claim for statutory 
interest for late payment in commercial transactions under the Law on payment 
terms in commercial transactions. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-327/20 
 
4  
Essential arguments of the parties in the main proceedings 
4 In the grounds for the appeal, the applicant indicated that although the right of 
perpetual usufruct arises from statute, a contract must be concluded in order for 
this right to arise with respect to a specific person, and the contract must be in the 
form of a notarial deed or else it is invalid. The Law on the management of 
immovable property sets out the time limit for and method of payment of the 
amount due, but the obligation itself arises from the contract. The applicant also 
indicated the basic methods of acquiring the right of perpetual usufruct: pursuant 
to a contract, pursuant to an administrative decision, and by operation of law. 
According to the applicant, it is clear from the circumstances of the case and the 
documents in the case file that the defendant’s obligation to pay the fee for 
perpetual usufruct arises from the contract concluded in the form of a notarial 
deed which concerned the acquisition of that right. 
Brief statement of and reasons for the reference 
5 In the present case, the State Treasury represented by the Governor of the Nysa 
District brought an action against New Media Development & Hotel Services Sp. 
z o.o., established in Warsaw, seeking payment of the annual fee for perpetual 
usufruct. While the claim concerning the principal amount was not challenged by 
either party and the judgment of the court of first instance awarding this fee is 
final, the subject of the appeal was the applicant’s claim, dismissed by the court of 
first instance, for statutory interest for late payment in commercial transactions 
within the meaning of Article 4(3) of the Law of 8 March 2013 on counteracting 
excessive delays in commercial transactions pursuant to Article 7(1) of that law. 
The District Court dismissed that claim, finding that the fees for perpetual 
usufruct arise from the law itself rather than from the contract between the parties. 
However, in the light of the provisions of Article 73(5) of the Law of 21 August 
1997 on the management of immovable property, the Sąd Okręgowy (Regional 
Court) in its present composition has found that this obligation results from the 
contract leasing the immovable property in perpetual usufruct or, if such right is 
established by statute, it results in a contractual relationship between the owner of 
the immovable property and the perpetual usufructuary by operation of law, and 
therefore the position of the court of first instance in this respect is incorrect. 
6 In this situation, therefore, the question has arisen as to whether, when collecting 
such fees, the State Treasury may claim statutory interest for late payment in 
commercial transactions or just ordinary statutory interest for late payment, that is, 
whether the leasing of immovable property in perpetual usufruct falls within the 
scope of delivery of goods or provision of services within the meaning of 
Articles 2 and 4(1) of the Law of 8 March 2013 on counteracting excessive delays 
in commercial transactions, transposing Directive 2011/7/EU of 16 February 2011 
on combating late payment in commercial transactions. 
NEW MEDIA DEVELOPMENT & HOTEL SERVICES 
 
5 
7 The possibility of applying the provisions of the Law of 8 March 2013 on 
counteracting excessive delays in commercial transactions to annual fees for 
perpetual usufruct should be examined. Therefore, it should be determined 
whether such contracts fall within the scope of Articles 2 and 4(1) of the Law of 
8 March 2013 on counteracting excessive delays in commercial transactions. 
8 As regards the provisions of the abovementioned Polish Law, a dispute has arisen 
in the legal literature as to whether the term ‘goods’ includes immovable property. 
It is pointed out that the Law on payment terms in commercial transactions and 
Directive 2011/7/EU do not define the concept of ‘delivery of goods’ or ‘goods’ 
themselves. 
9 Traditionally, in the literature on sales contracts, the term ‘goods’ is defined as 
generic items in the form of raw materials, semi-finished products or finished 
products. From a slightly different perspective, the term ‘goods’ is considered to 
be a synonym for ‘movable items’. It has even been pointed out that in many 
provisions, especially those concerning economic transactions, the legislature uses 
the concept of goods to mean something that is sold. 
10 In the case-law of the Court of Justice, goods are defined as ‘products which can 
be valued in money and which are capable, as such, of forming the subject of 
commercial transactions’ (judgment of 10 December 1968, 7/68, Commission v 
Italy, [1968] ECR 617). Additionally, the literature and the case-law of the Court 
of Justice indicate that goods are essentially material objects (judgment of the 
Court of Justice of 30 April 1974, 155/73, Sacchi, [1974] ECR 409). As the case-
law developed, it was clarified that the concept of the material character of the 
product cannot be understood literally. Consequently, electricity was also 
considered to be a form of goods (judgment of the Court of Justice of 15 July 
1964), 6/64, Costa v ENEL, [1964] ECR 1141). It was further clarified that goods 
may have a negative value. Thus, waste was classified as goods (judgment of the 
Court of Justice of 9 July 1992, C-2/90, Commission v Belgium, [1992] ECR I-
4431). 
11 The legal literature indicates that the term ‘delivery’ should be understood to 
mean the transfer of rights to the goods or making the goods available for 
temporary use. Therefore, a ‘delivery of goods’ should be understood as a transfer 
of rights to movable items, electricity, water, gas or central heating or of a 
corresponding other right (sale). It also appears that the concept of ‘delivery of 
goods’ should include making an item or, respectively, a right, available for 
temporary use (e.g. hire, rental, lease). 
12 Therefore, a distinction is made between, on the one hand, contracts such as sale, 
exchange or donation, and, on the other hand, contracts where the subject matter is 
making an item or right available for temporary use. It should be noted, however, 
that in the literature the view has been expressed that making goods or rights 
available for temporary use under a hire, rental or lease agreement lies outside the 
category of delivery of goods. The rationale for this view is that making goods 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-327/20 
 
6  
available for temporary use does not correspond to the common understanding of 
the concept of delivery. There are divergent positions in the legal literature in this 
respect. 
13 Court of Justice case-law indicates that the personal element is the determining 
factor characterising the concept of service (judgments of 5 June 1997, C-398/95, 
SETTG v Ministry of Labour, [1997] ECR I-3091; of 5 June 1997, C-360/89, 
Commission of the European Communities v Italy, [1992] ECR I-3401; of 
28 March 1996, C-272/94, Guiot, [1996] ECR I-1905). Additional characteristics 
of the provision of services include the fact that services are provided against 
payment, as well as their temporary and cross-border nature. 
14 In addition, it should be stated that the question whether the concept of goods 
within the meaning of the abovementioned law includes immovable property and 
whether the concept of delivery includes making goods available for temporary 
use have not been the subject of the case-law of the Sąd Najwyższy (Supreme 
Court, Poland) in connection with that law or of the case-law of the Court of 
Justice of the European Union. 
15 It should be considered whether the leasing of immovable property in perpetual 
usufruct constitutes delivery of goods, or, if minority views are accepted, 
provision of services within the meaning of the abovementioned law and directive. 
In accordance with the abovementioned rules of the Civil Code and of the Law on 
the management of immovable property, the leasing of immovable property in 
perpetual usufruct is a peculiar construct, since only the State Treasury and local 
government units may lease immovable property in perpetual usufruct. In the 
Civil Code, perpetual usufruct is classified as a right in rem. At the same time, this 
right includes a considerable administrative component. Perpetual usufruct is a 
form of absolute right to another person’s property, which entitles the holder to 
long-term use of public immovable property.  
16 Within the framework of the system of rights in rem, the right of perpetual 
usufruct is situated between ownership and limited rights in rem. For this reason, 
the view that this right is of an indirect nature prevails in the literature and in case-
law. Owing to this fact, perpetual usufruct exhibits characteristics typical of both 
ownership and limited rights in rem. It should be pointed out that this dualism is 
best seen in the two relationships involved in perpetual usufruct, since vis-à-vis 
third parties, the perpetual usufructuary has a position similar to that of the owner. 
17 On the other hand, in the relationship between the perpetual usufructuary and the 
owner of the land, perpetual usufruct has characteristics of the right to another 
person’s property. Consequently, the view is expressed that provisions on limited 
rights in rem should be applied to this relationship. It should be added, however, 
that in some areas the relationship between the owner and the perpetual 
usufructuary will exhibit characteristics typical of obligation relationships, which 
will complement the fundamental legal relationship based on rights in rem. 
NEW MEDIA DEVELOPMENT & HOTEL SERVICES 
 
7 
18 The classification of perpetual usufruct as a right in rem clearly indicates that this 
right has an absolute character and is a property right. Moreover, it is a right 
granted in return for payment, which is also transferable, hereditary and 
enforceable. Due to the objectives which it is intended to serve in the legal order, 
perpetual usufruct is a temporary right, since it may be established for a maximum 
period not exceeding 99 years and, exceptionally, for a shorter period, but not less 
than 40 years. Similarly, the functions of that right have determined that it is 
classified as a specific-purpose right in the sense that the contract establishing that 
right should specify the use of the land. 
19 As a rule, perpetual usufruct is currently established on the basis of a contract, but 
before 1990 it was established on the basis of an administrative decision, and in 
several statutes the legislature established the right of perpetual usufruct by 
operation of law. 
20 According to the notarial deed, the immovable property in question is leased in 
perpetual usufruct until 5 December 2089. This right can be subject to further 
transactions and the current usufructuary acquired the right of perpetual usufruct 
under a contract of 15 May 2014. 
21 In the opinion of the Regional Court, it appears that in the present case one can 
accept the view expressed in the legal literature that, in the light of the definition 
included in the abovementioned directive and in the implementing law, 
immovable property constitutes goods. There are also no obstacles to assuming 
that, as a rule, the leasing of immovable property in perpetual usufruct falls within 
the concept of the delivery of goods, or possibly within the scope of the concept of 
the provision of services within the meaning of the abovementioned law and 
directive, as making items available for temporary use. 
22 Assuming that the Court shares the above view, that is, that the leasing of 
immovable property in perpetual usufruct falls within the concept of the delivery 
of goods, or possibly within the scope of the concept of the provision of services, 
the question arises in the present case whether the collection of fees for perpetual 
usufruct by the State Treasury from entities which were not a party to the original 
transaction in the form of leasing immovable property in perpetual usufruct falls 
within the concept of a commercial transaction within the meaning of Article 2 
and paragraph 4(1) of the Law of 8 March 2013 on counteracting excessive delays 
in commercial transactions, transposing Directive 2011/7/EU of 16 February 2011 
on combating late payment in commercial transactions, as Article 2(2) of that 
directive indicates that ‘public authority’ means any contracting authority, as 
defined in point (a) of Article 2(1) of Directive 2004/17/EC and in Article 1(9) of 
Directive 2004/18/EC, regardless of the subject or value of the contract. This 
provision appears to indicate that where the State Treasury is concerned, the 
provisions of the directive, and thus also of the abovementioned law, apply only in 
the case of contracts concluded through public procurement, which is unlikely in 
the case of the leasing of immovable property in perpetual usufruct.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-327/20 
 
8  
23 Assuming that the scope of the directive, and thus of the law, covers any 
economic activity of the Sate in relation to other entities, and thus also covers the 
conclusion of contracts, including contracts for perpetual usufruct, then, as 
previously indicated above, the initial leasing of the immovable property in 
perpetual usufruct could also take place by way of an administrative decision or 
by operation of law. Moreover, there is a theoretical possibility of the immovable 
property being sold to a person who was originally not an entrepreneur, for the 
purposes of an activity other than economic activity, and subsequently, as a result 
of a change in the purpose of the plot of land or the commencement of economic 
activity by the person in question, of that immovable property being used for the 
purposes of economic activity, or being sold by a person who was not an 
entrepreneur to an entrepreneur who commences economic activity on the 
immovable property in question. 
24 Therefore, the question arises whether in cases concerning payment of an annual 
fee, which is always charged to the current perpetual usufructuary who, as in the 
present case, is already a successive holder of the right under a contract for the 
sale of the right of perpetual usufruct, the circumstances in which the right of 
perpetual usufruct itself arose should be examined, that is, whether it arose by way 
of a contract (and additionally by way of a tender) or by way of statute or an 
administrative decision, and whether the original acquirer of the right was an 
entrepreneur at the time of its acquisition and acquired the plot of land for the 
purposes of economic activity. 
25 The question also arises whether only the original contract establishing perpetual 
usufruct can be regarded as a commercial transaction and whether only in such a 
case the State Treasury is able to charge higher interest if the perpetual 
usufructuary is in arrears with the payment of the annual fee, and if this right is 
sold, the State Treasury loses that ability, or whether it should be considered that 
the acquirer of the right of perpetual usufruct replaces his predecessor as party to 
the original contract establishing perpetual usufruct and the State Treasury can 
extend the effects of the original commercial transaction to another entity. Both 
these questions indicate the need to examine the original circumstances in which 
the right of perpetual usufruct arose in order to assess whether the conditions of a 
commercial transaction within the meaning of the Law of 8 March 2013 on 
counteracting excessive delays in commercial transactions and of Directive 
2011/7/EU of 16 February 2011 on combating late payment in commercial 
transactions have been met. It is also possible that the contract transferring the 
right of perpetual usufruct to another usufructuary, concluded without the 
involvement of the State Treasury, constitutes a commercial transaction, and its 
effects under Article 71 of the Law on the management of immovable property 
extend to the State Treasury, which may claim higher interest for late interest 
pursuant to the Law of 8 March 2013 on counteracting excessive delays in 
commercial transactions precisely on the basis of this commercial transaction. 
26 Moreover, it should also be pointed out that although the amount of annual fee for 
perpetual usufruct is, as a rule, determined by way of a contract in accordance 
NEW MEDIA DEVELOPMENT & HOTEL SERVICES 
 
9 
with Article 73(5) of the Law on the management of immovable property, the 
manner of determining that amount as well as the procedure for changing it are 
also regulated by statute in such a way that first, by way of an administrative 
procedure, the authority leasing the immovable property in perpetual usufruct 
establishes a new amount of the fee or declines to change it, and after the 
administrative procedure has been exhausted, the user has the right to demand that 
the amount of that fee be determined by an ordinary court (and not an 
administrative court). 
27 According to well-established legal literature and case-law, the obligation to pay 
the annual fee is of a civil law nature. It resembles a typical obligation 
relationship. However, taking into account the formalised manner in which that 
fee is established and changed, as well as the fact that only the State Treasury and 
local government authorities are entitled to collect it, as the only entities which 
can establish the right of perpetual usufruct, fees for perpetual usufruct resemble a 
public levy. Nevertheless, in the Polish legal system, claims for payment of that 
fee are ultimately subject to the jurisdiction of the ordinary courts, as in the 
present case, and those fees are enforced under the provisions of the Kodeks 
Postępowania Cywilnego (Code of Civil Procedure). 
28 Another issue relating to whether the fees for perpetual usufruct fall into the 
category of a commercial transaction within the meaning of the abovementioned 
regulations arises in connection with the interpretation of Article 4(1) of the Law 
of 8 March 2013 on counteracting excessive delays in commercial transactions, 
which contains the phrase ‘in connection with the activity performed’. The 
question arises as to whether this concerns any activity undertaken by public 
authorities or only the economic activity of those authorities rather than the 
performance of their public tasks imposed by law. 
29 If the intention of the EU legislature was to include only those actions of public 
authorities which relate to economic activity, then there is also no clear position in 
Polish case-law as to whether collecting fees for perpetual usufruct is an economic 
activity. 
30 Another unresolved issue is whether Directive 2011/7/EU of 16 February 2011 on 
combating late payment in commercial transactions was intended to cover all 
commercial transactions conducted by public entities irrespective of whether they 
were carried out for the purposes of economic activity or whether they merely 
constituted performance of the entity’s own tasks, irrespective of the form of the 
transaction in question, namely, whether it was conducted through public 
procurement or not. 
31 If it is assumed that contracts leasing immovable property in perpetual usufruct 
fall within the scope of the concept of delivery of goods and provision of services 
and that the activity of the State Treasury consisting in the collection of annual 
fees from subsequent perpetual usufructuaries falls within the scope of application 
of the provisions of the Law of 8 March 2013 on counteracting excessive delays in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-327/20 
 
10  
commercial transactions, which was enacted to implement Directive 2011/7/EU of 
16 February 2011 on combating late payment in commercial transactions, the 
issue of intertemporal provisions remains. 
32 Both Article 6 of Directive 2000/35/EC of 29 June 2000 on combating late 
payment in commercial transactions and Article 12 of Directive 2011/7/EU of 
16 February 2011 on combating late payment in commercial transactions allowed 
Member States not to extend the application of the rules contained therein to 
contracts concluded before their entry into force. However, the case at issue 
concerns periodic payments, which are made annually. 
33 Although the original contracts or legal events establishing perpetual usufruct 
often date back to the period before the entry into force of those rules, the 
contracts transferring perpetual usufruct and thus the obligation to pay annual fees 
for perpetual usufruct were concluded after the entry into force those rules, as in 
this case (15 May 2014). 
34 Therefore, the question arises as to whether only the original contract leasing 
immovable property in perpetual usufruct should be regarded as a commercial 
transaction subject to the abovementioned laws and directives, or whether only the 
contract by which a particular perpetual usufructuary has acquired his right from 
the previous perpetual usufructuary is a commercial transaction, with effect in 
respect of the public authority which is not party to that contract.