Order;Summary — ECLI:EU:C:2023:980
Date: 2023-12-11
Language of the case: Polish
Court formation: Eighth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 May 2023 
Referring court: 
Sąd Rejonowy dla Wrocławia-Fabrycznej we Wrocławiu (Poland) 
Date of the decision to refer: 
28 April 2023 
Applicant: 
Powszechny Zakład Ubezpieczeń SA 
Defendant: 
Volvia sp. z o.o. 
  
Subject matter of the main proceedings 
Request for a preliminary ruling – Directive 2011/7/EU – Combating late payment 
in commercial transactions – Scope of application – Article 2(1) – Concept of 
‘commercial transactions’ – Insurance contract – Article 3(1)(a) – Transactions 
between undertakings – Creditor fulfilling its contractual and legal obligations – 
Insurance protection coverage 
Subject matter and legal basis of the request 
The request for a preliminary ruling submitted by the Sąd Rejonowy dla 
Wrocławia-Fabrycznej we Wrocławiu (District Court for Wrocław-Fabryczna in 
Wrocław) (Poland) pursuant to Article 267 TFEU seeks an interpretation of 
Article 3(1)(a) and of Article 2(1) of Directive 2011/7/EU of the European 
Parliament and of the Council of 16 February 2011 on combating late payment in 
commercial transactions (‘Directive 2011/7’). 
EN 
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Questions referred for a preliminary ruling 
1. Should Article 2(1) of Directive 2011/7/EU of the European Parliament and 
of the Council of 16 February 2011 on combating late payment in commercial 
transactions be interpreted as meaning that an insurance contract under which the 
insurer promises to provide a specific service to an undertaking in the event of the 
occurrence of an event provided for in the contract constitutes a commercial 
transaction within the meaning of that provision and therefore comes within the 
scope ratione materiae of that directive?; and, if so, 
2. Should Article 3(1)(a) of Directive 2011/7 be interpreted as meaning that the 
insurer, simply by providing insurance cover under an insurance contract, fulfils 
its contractual and legal obligations within the meaning of that provision? 
Provisions of EU cited 
Article 57 TFEU 
Recitals 2, 3 and 17, Article 1(1) and (2), and Articles 2(1) and 3(1) of Directive 
2011/7/EU 
Provisions of national law cited 
1. Article 487(2) of the Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Law 
of 23 April 1964 on the Civil Code) (Dz. U. (Polish Journal of Laws) of 1964, 
No 16, item 93) (‘the Civil Code’) provides: 
‘A contract is reciprocal when each party assumes an obligation in such a way that 
the performance of one party corresponds to the performance of the other party.’ 
Article 805(1) and (2) of the Civil Code provides: 
(1) By an insurance contract, the insurer commits, within the scope of operations 
of its undertaking, to make a specific payment if an event provided for in the 
contract occurs, and the policyholder agrees to pay a premium. 
(2) The insurer’s performance consists, in particular, of the payment of: 
1. in the case of property insurance – the specified compensation for damage 
caused by an event provided for in the contract; 
…’. 
Article 813(1) of the Civil Code provides: 
‘The premium is calculated on the basis of the duration of the insurer’s liability. If 
the insurance relationship expires before the end of the period for which the 
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contract was concluded, the policyholder is entitled to reimbursement of the 
premium for the period during which insurance coverage was not used.’ 
Article 822(1) of the Civil Code provides: 
‘By a civil liability insurance contract, the insurer undertakes to pay 
compensation, as specified in the policy, for damage caused to third parties in 
respect of whom the policyholder or insured person bears liability.’ 
2. Article 4(1) of the Ustawa z dnia 11 września 2015 r. o działalności 
ubezpieczeniowej i reasekuracyjnej (Law of 11 September 2015 on the activity of 
insurance and reinsurance) (Dz. U. (Polish Journal of Laws) 2015, item 1844, as 
amended): 
‘Insurance activity is understood as the performance of insurance transactions 
related to the offering and providing of protection in the event of the risk of the 
effects of random events’. 
3. Article 4(1) and (1a) 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) (Dz. U. (Polish 
Journal of Laws) 2013, item 403, as amended) (‘the Law on counteracting 
excessive delays in commercial transactions): 
‘For the purposes of this Law: 
1. the term “commercial transaction” means a contract for the supply of goods or 
the provision of services for consideration, if made between parties referred to in 
Article 2 in the course of their activity; 
1a. the term “cash performance” means remuneration for the supply of goods or 
performance of a service in a commercial transaction’. 
Article 7(1) of the Law on counteracting excessive delays in commercial 
transactions: 
‘Save in the case where the debtor is a public authority, creditors in commercial 
transactions shall be entitled, without the need for a reminder, and unless the 
parties have agreed on a higher rate of interest, to statutory interest for late 
payment, for the period running from the date on which payment is due to the date 
on which it is made, if the following cumulative conditions are satisfied: 
(1) the creditor has fulfilled its obligations; 
(2) the creditor has not received payment within the period specified by the 
contract.’ 
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Succinct presentation of the facts and procedure in the main proceedings and 
the essential arguments of the parties 
1 The applicant has requested that the defendant pay to it PLN 7 619.89 plus 
statutory interest for a delay in commercial transactions, as well as the procedural 
costs, claiming that it had concluded two insurance contracts with the defendant 
(an undertaking). The first contract was a motor vehicle owner’s third-party civil 
liability insurance contract (compulsory insurance); it also included additional 
insurance for the organisation of roadside assistance and cover for the costs of 
such assistance. The second contract also related to a motor vehicle and covered 
third-party civil liability insurance for the owner of a motor vehicle (compulsory 
insurance), motor casco insurance (in the event of loss of, destruction of or 
damage to the vehicle) and insurance for roadside assistance and coverage of the 
costs of such assistance. 
2 In its action, the applicant requested payment of insurance premiums (in the case 
of the first contract, this amounted to PLN 1 450.00, and, in the case of the second 
contract, it amounted to PLN 5 998.08), statutory interest for delay in commercial 
transactions calculated from the day following the due date of each premium until 
the date of payment (the premiums were due on 7 July 2018 and 23 July 2019 
respectively), as well as PLN 171.81 as compensation for the costs of recovery of 
the amounts owed. 
3 An order for payment was issued in the case in writ-of-payment proceedings. The 
defendant filed an objection against this order, in which it alleged that some of the 
claims were time-barred and that the request for payment of the premium related 
to motor casco insurance was unjustified. In connection with the lodging of the 
objection, the abovementioned order for payment lost its legal force, and the case 
was referred for examination in the ordinary course. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 When assessing the legitimacy of the applicant’s claims, the referring court must 
examine whether the request set out in the action is justified in the light of 
applicable law. It must therefore examine whether the applicant may demand 
statutory interest from the defendant for delay in commercial transactions, and 
this, in turn, requires a determination of whether the insurance contract under 
which the insurer undertakes to fulfil a specific obligation to the entrepreneur in 
the event of an accident specified in the contract constitutes a commercial 
transaction within the meaning of Article 3(1) of Directive 2011/7. The existence 
of a claim for interest also determines the legitimacy of a demand for payment of 
compensation for the costs of recovering the dues. 
5 The referring court is inclined to find that, in the light of the Polish rules, there is 
justification for the so-called theory of cash performance, according to which the 
performance of the insurance company is the payment of a specified sum of 
money, and this is provided by the company only when an indemnifiable accident 
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occurs. In this concept, the lack of equivalence of performances is clear, because 
either the policyholder, fulfilling its payment, will receive nothing in return if the 
accident does not occur, or the insurance company’s outlay will significantly 
exceed the policyholder’s outlay if the accident does occur. Within the meaning of 
this theory, the insurer, when concluding the contract, does not perform anything 
for the insured party; in particular, it does not supply goods (which is obvious) or 
provide services. This means that, on the basis of the abovementioned theory, the 
insurance contract is not a reciprocal contract. This, in turn, leads to the 
conclusion that an insurance contract is not a ‘commercial transaction’ within the 
meaning of Article 2(1) of Directive 2011/7. 
6 The abovementioned theory of cash performance was supported by the Sąd 
Najwyższy (Polish Supreme Court) in its judgment of 20 October 2006, although 
it is not universally accepted, because, for example, the Naczelny Sąd 
Administracyjny (Polish Supreme Administrative Court) has leaned towards an 
opposite theory – the so-called risk theory. According to the latter, the insurance 
company, agreeing to bear the risk of paying a specific sum of money in the event 
of an indemnifiable accident, ‘provides’ insurance cover, which means that what 
the company performs is the provision of insurance cover, and possibly – if an 
accident does occur – also a cash payment. 
7 Due to the fact that adoption of the abovementioned theory of cash performance 
would mean excluding insurance contracts concluded with an entrepreneur from 
the scope of application of Directive 2011/7, the referring court expresses 
uncertainty as to whether such an interpretation of the provisions of national law 
is contrary to that directive. It refers to the judgment of the Court of Justice of 
9 July 2020, RL (Directive on combating late payment) (C-199/19, 
EU:C:2020:548), according to which the concepts of ‘delivery of goods’ and 
‘provision of services’ must be given an autonomous and uniform interpretation 
throughout the European Union, in the light of the need for the uniform 
application of EU law in conjunction with the principle of equality. Those 
concepts thus constitute autonomous concepts of EU law and their scope cannot 
be determined by reference either to concepts known to the laws of the Member 
States or to classifications made at national level, but must be established by 
simultaneously taking into account the wording, context and objectives of the 
provision in which those concepts are used. 
8 The referring court first sets out the arguments in favour of including insurance 
contracts within the scope of Directive 2011/7. 
9 First, the Court of Justice, in its rulings regarding the relevant directive, advocates 
for a broad understanding of the concept of ‘commercial transaction’. In the 
Court’s opinion, such an understanding – as the referring court notes – is 
supported by the fact that Directive 2011/7 was adopted on the basis of 
Article 114 TFEU, which means that it forms part of the approximation of the 
laws of the Member States having as their object the establishment and 
functioning of the internal market in the field of combating late payment within 
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that market. In accordance with the wording of Article 57 TFEU, services are to 
be regarded as ‘services’ within the meaning of the Treaties where they are 
normally provided for remuneration, in so far as they are not governed by the 
provisions relating to freedom of movement for goods, capital and persons. The 
second paragraph of that article sets out, by way of example, various activities that 
are covered by the concept of ‘services’, including activities of a commercial 
character (judgment of 9 July 2020, RL (Directive on combating late payment in 
commercial transactions), C-199/19, EU:C:2020:548). If this is the case, insurance 
contracts should be classified as falling under one of the freedoms. The freedom to 
provide services appears, in the light of Article 57 TFEU, also to cover the 
activities of insurers. In the opinion of the referring court, this is a key argument 
in favour of taking the view that the provision of services for consideration should 
also be understood as including a ‘service’ consisting of the provision of insurance 
cover. 
10 Second, the referring court notes that, with regard to public works contracts, the 
Court of Justice, in its judgment of 18 November 2020, Techbau, C-299/19, 
EU:C:2020:937, found that the exclusion of a not insignificant proportion of 
commercial transactions from the scope of the directive at issue in that case would 
be impracticable. Likewise, it can be argued that it would be similarly contrary to 
the purpose of Directive 2011/7 to take the view that insurance contracts, which 
are common contracts existing on the market, do not come within its material 
scope. 
11 Third, the referring court notes that, from an economic point of view, the premium 
can be understood as remuneration for the insurance company. This is because the 
amount of the premium is calculated according to the economic valuation of the 
risk. Moreover, the insurer, when concluding insurance contracts, is required to be 
prepared to provide services. It must maintain appropriate organisational facilities 
and have financial resources to cover the benefits paid. In this context there is, 
therefore, justification for taking the view that the insurer’s activities are 
‘services’ provided for remuneration. 
12 Fourth, the referring court highlights the need for a uniform interpretation of the 
same term on the basis of all EU legal acts, and these use the term ‘financial 
services’. It refers to Directive 2009/103/EC, recital 2 of which employs this term, 
and notes that these services are also undoubtedly understood by the EU 
legislature as insurance services, including the conclusion of insurance contracts, 
which is indicated, for example, by the subject matter of that directive. From this 
it infers that an insurance contract should be regarded as a contract for the 
provision of financial services. 
13 On the other hand, the referring court sets out arguments in favour of excluding 
insurance contracts from the scope of Directive 2011/7. 
14 First, it notes that it is in the interest of the policyholder for the insurer to fulfil the 
obligation if an unforeseen event specified in the contract occurs. In this context, 
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it is doubtful that, by concluding a contract, the insurer bears the economic burden 
of performance for the other party. The liability incurred by the insurer may (but 
does not have to) be associated only in the future with the fulfilment of 
performance in the form of the payment of compensation. At the time of 
concluding the contract, the insurer does not incur any expenses for the benefit of 
the policyholder (or the insured party). It does not perform activities for the 
policyholder or provide or make assets available to the policyholder. The 
performance of these activities does not result in any benefit on the part of the 
policyholder. The purpose of collecting premiums is to gather funds that will 
allow, in the first place, the payment of compensation (and the making of profit), 
and not the provision of ‘services’. 
15 Second, recognising that the insurer provides a service in the form of insurance 
cover is tantamount to stating that the conclusion of an insurance contract (the 
incurring of a legal obligation) also constitutes performance under this contract, 
which leads to the incurring of an obligation being equated with its execution. 
This seems, however, to be contrary to the main purpose of the insurance contract, 
which is that, in the event of an accident, the insurer fulfils this obligation – 
usually by paying out a specific amount of money. The essence of the insurance 
contract is, therefore, the payment of compensation in the event of the occurrence 
of a chance event. From this point of view, the insurance contract is not a 
reciprocal contract, since the premium is not remuneration corresponding to the 
insurer’s main performance. Directive 2011/7 protects entities that have already 
fulfilled their obligations, not those that have merely committed themselves to 
fulfil the performance in the event of the occurrence of chance events. In the light 
of that directive, only the fulfilment of one’s obligations, the equivalent of which 
is remuneration, entitles a party to request payment of the interest provided for in 
that directive. 
16 As regards the second question, the referring court also expresses uncertainty – in 
the event that the Court of Justice should hold that insurance contracts such as 
those in question in the main proceedings come within the scope of Directive 
2011/7 – as to whether, on the basis of Article 3(1)(a) of that directive, the insurer, 
through the mere provision of insurance coverage, under the insurance contract, 
fulfils its contractual and legal obligations within the meaning of that provision. 
17 The referring court points out that Article 3(1) of Directive 2011/7 gives 
expression to the principle that the interest provided for in the directive is due to 
the creditor when it has fulfilled its contractual and legal obligations and has not 
received remuneration in a timely manner. Therefore, the question arises as to the 
moment at which the insurer fulfils its contractual and legal obligations. This 
moment affects the real-time consideration of the demand for interest provided for 
in the directive, as well as compensation for the costs of debt recovery. 
Recognising that an insurance contract is a commercial transaction within the 
meaning of the directive (when it is concluded with an entrepreneur) means 
assuming that the insurer provides services consisting of insurance protection. In 
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the opinion of the referring court, therefore, at least three ways of interpreting 
when the insurer’s obligations are fulfilled are possible. 
18 The first possibility involves assuming that the service of providing insurance 
cover is a continuous service provided throughout the duration of the insurance 
contract. With such an interpretation, the interest provided for in the directive 
would be due to the insurer not earlier than from the end of the insurance period. 
Only at the end of the period of coverage could the view be taken that the insurer 
has fulfilled its obligation. This interpretation is supported in particular by 
recital 2 of Directive 2011/7, which refers to the practice of deferring payments – 
this directive aims to protect creditors who have already provided their services, 
not those who are in the process of providing them. 
19 The second option is to recognise that the insurer has already fulfilled its 
obligations at the time of concluding the contract. This interpretation is supported 
by the fact that, after conclusion of the contract, the insurer does not have to take 
any further action to ensure that the insurance cover lasts. The mere fact of being 
covered by insurance would then result in the recognition that the insurer has 
fulfilled its obligations. 
20 The third option is based on the assumption that the ‘contractual and legal 
obligations’ also include the payment of compensation by the insurer (or the 
fulfilment of another performance provided for in the contract if a fortuitous event 
occurs). This interpretation is supported by the argument that the insurer cannot be 
considered to have fulfilled its contractual and legal obligations while it is still 
required to fulfil the contractual performance related to the chance event. In this 
situation, it would be possible to conclude that the insurer fulfilled its performance 
even before the end of the insurance period, but only if it paid the benefit after the 
chance event had occurred and if it has no further obligations (which may be the 
case, for example, if the sum insured for is exhausted).