1 This request for a preliminary ruling concerns the interpretation of Article 6(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 (OJ 2011 L 48, p. 1).
2 The request has been made in proceedings between the Skarb Państwa (Public Treasury, Poland), represented by the Dyrektor Okręgowego Urzędu Miar w K. (Director of the Regional Office of Measures in K.) (‘the Office of Measures’), on the one hand, and Z. sp.j., a company governed by Polish law, on the other, concerning a claim for lump-sum compensation for the recovery costs incurred by the Office of Measures as a result of successive delays by Z. in making payments connected with services, relating to the calibration of measuring instruments, provided by the Office of Measures. Legal context European Union law
3 Recitals 12, 17 and 19 of Directive 2011/7 state: ‘(12) Late payment constitutes a breach of contract which has been made financially attractive to debtors in most Member States by low or no interest rates charged on late payments and/or slow procedures for redress. A decisive shift to a culture of prompt payment, including one in which the exclusion of the right to charge interest should always be considered to be a grossly unfair contractual term or practice, is necessary to reverse this trend and to discourage late payment. Such a shift should also include the introduction of specific provisions on payment periods and on the compensation of creditors for the costs incurred, and, inter alia, that the exclusion of the right to compensation for recovery costs should be presumed to be grossly unfair. … (17) A debtor’s payment should be regarded as late, for the purposes of entitlement to interest for late payment, where the creditor does not have the sum owed at his disposal on the due date provided that he has fulfilled his legal and contractual obligations. … (19) Fair compensation of creditors for the recovery costs incurred due to late payment is necessary to discourage late payment. Recovery costs should also include the recovery of administrative costs and compensation for internal costs incurred due to late payment for which this Directive should determine a fixed minimum sum which may be cumulated with interest for late payment. Compensation in the form of a fixed sum should aim at limiting the administrative and internal costs linked to the recovery. Compensation for the recovery costs should be determined without prejudice to national provisions according to which a national court may award compensation to the creditor for any additional damage regarding the debtor’s late payment.’
4 Article 1 of that directive, entitled ‘Subject matter and scope’, provides: ‘1. The aim of this Directive is to combat late payment in commercial transactions, in order to ensure the proper functioning of the internal market, thereby fostering the competitiveness of undertakings and in particular of [small and medium-sized enterprises (SMEs)]. 2. This Directive shall apply to all payments made as remuneration for commercial transactions. …’
5 Under Article 2(1) to (4) of that directive: ‘For the purposes of this Directive, the following definitions shall apply: (1) “commercial transactions” means transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration; (2) “public authority” means any contracting authority, as defined in point (a) of Article 2(1) of Directive 2004/17/EC [of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1)] and in Article 1(9) of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)], regardless of the subject or value of the contract; (3) “undertaking” means any organisation, other than a public authority, acting in the course of its independent economic or professional activity, even where that activity is carried out by a single person; (4) “late payment” means payment not made within the contractual or statutory period of payment and where the conditions laid down in Article 3(1) or Article 4(1) are satisfied’.
6 Article 3 of Directive 2011/7, entitled ‘Transactions between undertakings’, is worded as follows: ‘1. Member States shall ensure that, in commercial transactions between undertakings, the creditor is entitled to interest for late payment without the necessity of a reminder, where the following conditions are satisfied: (a) the creditor has fulfilled its contractual and legal obligations; and (b) the creditor has not received the amount due on time, unless the debtor is not responsible for the delay. …’
7 Article 4 of that directive, entitled ‘Transactions between undertakings and public authorities’, provides, in paragraph 1 thereof: ‘Member States shall ensure that, in commercial transactions where the debtor is a public authority, the creditor is entitled upon expiry of the period defined in paragraphs 3, 4 or 6 to statutory interest for late payment, without the necessity of a reminder, where the following conditions are satisfied: (a) the creditor has fulfilled its contractual and legal obligations; and (b) the creditor has not received the amount due on time, unless the debtor is not responsible for the delay.’
8 Article 6 of Directive 2011/7, entitled ‘Compensation for recovery costs’, provides: ‘1. Member States shall ensure that, where interest for late payment becomes payable in commercial transactions in accordance with Article 3 or [Article ]4, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40. 2. Member States shall ensure that the fixed sum referred to in paragraph 1 is payable without the necessity of a reminder and as compensation for the creditor’s own recovery costs. …’
9 Article 7 of that directive, entitled ‘Unfair contractual terms and practices’, states, in paragraphs 1 to 3 thereof: ‘1. Member States shall provide that a contractual term or a practice relating to the date or period for payment, the rate of interest for late payment or the compensation for recovery costs is either unenforceable or gives rise to a claim for damages if it is grossly unfair to the creditor. In determining whether a contractual term or a practice is grossly unfair to the creditor, within the meaning of the first subparagraph, all circumstances of the case shall be considered, including: (a) any gross deviation from good commercial practice, contrary to good faith and fair dealing; (b) the nature of the product or the service; and (c) whether the debtor has any objective reason to deviate from the statutory rate of interest for late payment, from the payment period as referred to in Article 3(5), point (a) of Article 4(3), Article 4(4) and Article 4(6) or from the fixed sum as referred to in Article 6(1). 2. For the purpose of paragraph 1, a contractual term or a practice which excludes interest for late payment shall be considered as grossly unfair. 3. For the purpose of paragraph 1, a contractual term or a practice which excludes compensation for recovery costs as referred to in Article 6 shall be presumed to be grossly unfair.’ Polish law Law on counteracting excessive delays in commercial transactions
10 Under Article 10 of the ustawa o przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (Law on counteracting excessive delays in commercial transactions) of 8 March 2013 (Dziennik Ustaw of 2022, item 893), which transposed Directive 2011/7 into the Polish legal order and entered into force on 28 April 2013: ‘1. From the date on which it acquires the right to interest as referred to in Article 7(1) or Article 8(1), the creditor shall, without demand, be entitled to obtain from the debtor compensation for recovery costs, which shall be equivalent to: (1) EUR 40 - if the payment amount does not exceed 5 000 zlotys (PLN) [(approximately EUR 1 155)]; … 2. In addition to the amount referred to in paragraph 1, the creditor shall also be entitled to a refund, in a reasonable amount, of the recovery costs incurred in excess of that amount.’ The Civil Code
11 Article 5 of the ustawa - Kodeks cywilny (Law establishing the Civil Code) of 23 April 1964 (Dziennik Ustaw of 2022, item 1360) (‘the Polish Civil Code’) provides: ‘A right may not be exercised in a manner which would be contrary to its socio-economic purpose or to the principles of communal coexistence. Any such act or omission on the part of the person entitled shall not be treated as an exercise of the right and shall not be protected.’ The dispute in the main proceedings and the question referred for a preliminary ruling
12 The Office of Measures provides services, relating to the calibration of measuring instruments, which are regularly used by the company Z. That company has made late payment for such services on two occasions. The first late payment - delayed by 20 days - concerned a sum of PLN 246 (approximately EUR 55) and the second - delayed by 5 days - concerned a sum of PLN 369 (approximately EUR 80).
13 The Office of Measures thus brought before the referring court, the Sąd Rejonowy Katowice - Zachód w Katowicach (District Court, Katowice-West, Katowice, Poland), a claim for payment of a sum of EUR 80, together with the interest provided for by Polish law, that is to say, a sum corresponding to twice the compensation for recovery costs referred to in Article 10(1)(1) of the Law on counteracting excessive delays in commercial transactions.
14 The referring court notes that, according to the settled case-law of the Polish courts, actions for payment of a fixed sum for recovery costs are to be dismissed where the delay by the debtor in making payment is negligible or where the amount of the claim owed is small. It emphasises that the case before it is illustrative of such a practice, as Z. has never been ordered to pay such a sum even though it has been late in making payment on at least 39 occasions.
15 According to the referring court, the dismissal of those actions is based on Article 5 of the Polish Civil Code, interpreted as meaning that, where the amount of a claim the payment of which is delayed does not exceed the equivalent, in zlotys, of EUR 100 to EUR 300, or where the delay in paying a claim is not more than two to six weeks, compensation of the creditor is considered to be ‘contrary to … the principles of communal coexistence’, an expression which that court treats as equivalent to the expression ‘contrary to accepted principles of morality’.
16 The referring court questions whether such an interpretation is compatible with Article 6(1) of Directive 2011/7, read in the light of recital 12 thereof. According to that court, the acceptance, by the Polish courts, of a custom consisting in debtors making late payments of small sums, the result of which is that a creditor which disregards that custom and demands compensation is deemed to be acting in breach of those ‘principles of communal coexistence’, cannot justify the introduction, through national law, of an exception to the clear, precise and unconditional rule laid down in Article 6(1) of that directive.
17 In those circumstances the Sąd Rejonowy Katowice - Zachód w Katowicach (District Court, Katowice-West, Katowice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Does Article 6(1) of [Directive 2011/7] preclude national legislation under which a national court may dismiss an action for compensation for the recovery costs referred to in that provision on the ground that the debtor’s delay in payment was not significant or on the ground that the amount which the debtor was late in paying was small?’ Consideration of the question referred
18 As a preliminary point, it should be borne in mind that where, as in the present case, a public authority, within the meaning of Article 2(2) of Directive 2011/7, is the creditor of an undertaking, being owed a sum of money, the relations between those two entities are not covered by the concept of a ‘commercial transaction’ employed in Article 2(1) thereof, and are accordingly outside the scope of that directive (judgment of 13 January 2022, New Media Development & Hotel Services , C‑327/20, EU:C:2022:23, paragraph 44).
19 However, the Court has jurisdiction to rule on requests for a preliminary ruling concerning provisions of EU law in situations where the facts of the main proceedings fall outside the scope of EU law but those provisions have been made applicable by national law because of a reference by that national law to the content of those provisions (see, to that effect, judgments of 15 November 2016, Ullens de Schooten , C‑268/15, EU:C:2016:874, paragraph 53, and of 30 January 2020, I.G.I. , C‑394/18, EU:C:2020:56, paragraph 45).
20 In the present case, the referring court notes that Polish law extends the right to compensation for recovery costs to situations which are not covered by Directive 2011/7, in which the creditor for a sum the payment of which is delayed is a public authority and the debtor is an undertaking, so that the compensation may be paid according to exactly the same rules, regardless of whether the creditor is an undertaking or a public authority. In those circumstances, the preliminary ruling on interpretation that is sought appears necessary in order for the applicable provisions of EU law to receive a uniform interpretation. It is therefore necessary to answer the question put by the referring court.
21 By its single question, that court asks, in essence, whether Article 6(1) of Directive 2011/7 is to be interpreted as precluding a practice by the national courts which consists in dismissing actions seeking to obtain the fixed minimum sum by way of compensation for recovery costs provided for in that provision, on the ground that the delay by the debtor in making payment is negligible or that the amount of the claim concerned by the delay by the debtor in making payment is small.
22 In the first place, Article 6(1) of Directive 2011/7 requires the Member States to ensure that, where interest for late payment becomes payable in commercial transactions, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40, by way of compensation for recovery costs. In addition, Article 6(2) of that directive requires the Member States to ensure that such a fixed minimum sum is automatically due, even where no reminder is issued to the debtor, and that that sum is due as compensation for the creditor’s recovery costs.
23 The concept of ‘late payment’, which gives rise to the creditor’s entitlement to obtain from the debtor not only interest but also a fixed minimum sum of EUR 40 under Article 6(1) of Directive 2011/7, is defined in Article 2(4) thereof as payment not made within the contractual or statutory period of payment. Since that directive covers, in accordance with Article 1(2) thereof, ‘all payments made as remuneration for commercial transactions’, that concept of ‘late payment’ is applicable to each commercial transaction considered individually (judgments of 20 October 2022, BFF Finance Iberia , C‑585/20, EU:C:2022:806, paragraph 28, and of 1 December 2022, X (Deliveries of medical products ) , C‑419/21, EU:C:2022:948, paragraph 30).
24 In the second place, in accordance with the combined provisions of Article 3(1) and Article 6(1) of Directive 2011/7, with regard to commercial transactions between undertakings, and the combined provisions of Article 4(1) and Article 6(1) of that directive, with regard to transactions between undertakings and public authorities, interest for late payment, just like the fixed sum of EUR 40, becomes payable automatically upon expiry of the period for payment provided for in, respectively, Article 3 and Article 4 thereof. Recital 17 of that directive states, in that regard, that ‘a debtor’s payment should be regarded as late, for the purposes of entitlement to interest for late payment, where the creditor does not have the sum owed at his disposal on the due date provided that he has fulfilled his legal and contractual obligations’.
25 There is nothing in the wording of Article 3(1), Article 4(1), or Article 6(1) of Directive 2011/7 to indicate that the fixed minimum sum provided for by Article 6(1) of that directive would not be due in the event of a negligible delay in making payment or as a result of the low amount of the claim concerned, where the debtor alone is responsible for the delay.
26 Accordingly, it is apparent from a literal and contextual interpretation of Article 6(1) of Directive 2011/7 that the fixed minimum sum of EUR 40, provided for by way of compensation for recovery costs, is due to the creditor, which has fulfilled its obligations, for each payment not made on time as remuneration for a commercial transaction, whatever the amount of the claim concerned by the delay in making payment or the length of that delay.
27 In the third place, that interpretation of Article 6 of Directive 2011/7 is confirmed by the aim of that directive. It follows from Article 1(1) of that directive, read in the light of recitals 12 and 19 thereof, that the directive is intended not only to discourage late payment by preventing it from being financially attractive for the debtor because of a low rate or lack of interest being charged in such a situation, but also to protect the creditor effectively against such late payment. Recital 19 of Directive 2011/7 makes clear, first, that recovery costs should also include the recovery of administrative costs and compensation for internal costs incurred due to late payment and, second, that compensation in the form of a fixed sum should aim at limiting the administrative and internal costs linked to the recovery (see, to that effect, judgments of 20 October 2022, BFF Finance Iberia , C‑585/20, EU:C:2022:806, paragraphs 35 and 36, and of 1 December 2022, X (Deliveries of medical products ) , C‑419/21, EU:C:2022:948, paragraph 36).
28 From this perspective, neither the low amount of the claim owed nor the fact that the delay in making payment is negligible can justify exempting a debtor from paying the fixed minimum sum due by way of compensation for the recovery costs for each delay in making payment for which the debtor alone is responsible. Such exemption would effectively deprive Article 6 of Directive 2011/7 - the objective of which is, as has been stated in the preceding paragraph, not only to discourage late payment but also to provide compensation, through that sum, ‘for the creditor’s own recovery costs’, costs which tend to increase in proportion to the number of payments and amounts which the debtor has not made or paid on time - of any practical effect. In those circumstances, it cannot be held that that debtor has ‘any objective reason’, for the purposes of point (c) of the second subparagraph of Article 7(1) of that directive, to deviate from payment of the fixed sum as referred to in Article 6(1) thereof, as Article 7(3) of Directive 2011/7 states that, for the purposes of Article 7(1) thereof, ‘a contractual term or a practice which excludes compensation for recovery costs as referred to in Article 6 shall be presumed to be grossly unfair’ (see, to that effect, judgments of 20 October 2022, BFF Finance Iberia , C‑585/20, EU:C:2022:806, paragraph 37, and of 1 December 2022, X (Deliveries of medical products ) , C‑419/21, EU:C:2022:948, paragraph 37).
29 Lastly, as regards Article 5 of the Polish Civil Code, referred to by the referring court, under which a right exercised in a manner which would be contrary to its socio-economic purpose or to the principles of communal coexistence is not protected, it should be borne in mind that the principle that national law must be interpreted in conformity with EU law requires national courts, in observance of, inter alia, the prohibition on interpretation of national law contra legem , to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the aim pursued by that directive (judgments of 24 January 2012, Dominguez , C‑282/10, EU:C:2012:33, paragraph 27, and of 4 May 2023, ALD Automotive , C‑78/22, EU:C:2023:379, paragraph 40).
30 The requirement to interpret national law in conformity with EU law entails, in particular, the obligation for national courts to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive. Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law (judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften , C‑684/16, EU:C:2018:874, paragraph 60).
31 In so far as Article 5 of the Polish Civil Code cannot be interpreted in a manner that is consistent with Article 6 of Directive 2011/7, as interpreted in paragraphs 26 to 28 of the present judgment, and in the light of the requirements recalled in the preceding paragraph, the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply a provision of national legislation such as that at issue in the main proceedings, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (judgment of 24 June 2019, Popławski , C‑573/17, EU:C:2019:530, paragraph 58 and the case-law cited).
32 Having regard to the foregoing, the answer to the question referred is that Article 6(1) of Directive 2011/7 must be interpreted as precluding a practice by the national courts which consists in dismissing actions seeking to obtain the fixed minimum sum by way of compensation for recovery costs provided for in that provision, on the ground that the delay by the debtor in making payment is negligible or that the amount of the claim concerned by the delay by the debtor in making payment is small. Costs
33 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Eighth Chamber) hereby rules: Article 6(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 must be interpreted as precluding a practice by the national courts which consists in dismissing actions seeking to obtain the fixed minimum sum by way of compensation for recovery costs provided for in that provision, on the ground that the delay by the debtor in making payment is negligible or that the amount of the claim concerned by the delay by the debtor in making payment is small. [Signatures] * Language of the case: Polish.