Provisional text

OPINION OF ADVOCATE GENERAL

ATHANASIOS RANTOS

delivered on 30 May 2024 (1)

Case C‑677/22

Przedsiębiorstwo Produkcyjno – Handlowo – Usługowe A.

v

P. S.A.

(Request for a preliminary ruling from the Sąd Rejonowy Katowice – Wschód w Katowicach (District Court, Katowice-East, Katowice, Poland))

(Reference for a preliminary ruling – Directive 2011/7/EU – Combating late payment in commercial transactions – Article 3 – Transactions between undertakings – Article 3(5) – Obligation of Member States to ensure that the period for payment fixed in the contract does not exceed 60 calendar days, ‘unless otherwise expressly agreed in the contract’ – Contracts concluded following a sale by auction or a tender procedure – Contractual term stipulating a period for payment of 120 calendar days determined unilaterally by one of the contracting parties)

I.      Introduction

1.        Article 3(5) of Directive 2011/7/EU, (2) the objective of which is to combat late payment in commercial transactions, provides that Member States are to ensure that the period for payment fixed in the contract does not exceed 60 calendar days, unless otherwise ‘expressly agreed’ in the contract and provided it is not grossly unfair to the creditor within the meaning of Article 7 of that directive.

2.        In the context of contracts concluded between undertakings, may a period for payment of more than 60 calendar days from the date of submission of the invoice to the debtor, determined unilaterally by one of the contracting parties, be regarded as having been ‘expressly agreed’ within the meaning of Article 3(5) of Directive 2011/7? That, in essence, is the question asked by the Sąd Rejonowy Katowice – Wschód w Katowicach (District Court, Katowice-East, Katowice, Poland).

3.        The request for a preliminary ruling was submitted in the context of proceedings between Przedsiębiorstwo Produkcyjno – Handlowo – Usługowe A., a limited liability company in the field of manufacturing mining equipment (‘A.’ or ‘the applicant’) and P. S.A., a joint stock company in the field of mining and selling coal (‘P.’ or ‘the defendant’), concerning a claim for payment of interest for late payment in respect of invoices not paid on the due date by P., relating to contracts entered into between those companies and, more specifically, the validity of a 120-day period for payment set out in a contractual term drafted in advance by P.

4.        The present case grants the Court of Justice the opportunity to rule, for the first time, on the interpretation of the exception laid down in Article 3(5) of Directive 2011/7. In order to answer the question posed, it will be necessary to determine whether, in the context of combating late payment in commercial transactions, the concept of ‘express agreement’ within the meaning of that provision covers the acceptance of a period for payment arising from the use of documents drawn up unilaterally by one of the contracting parties, such as standardised model contracts or ‘pre-formulated standard contracts’ laying down general terms and conditions that provide for payment periods longer than 60 calendar days.

II.    Legal framework

A.      European Union law

5.        Recitals 12, 13 and 28 of Directive 2011/7 read as follows:

‘(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.

(13)      Accordingly, provision should be made for business-to-business contractual payment periods to be limited, as a general rule, to 60 calendar days. However, there may be circumstances in which undertakings require more extensive payment periods, for example when undertakings wish to grant trade credit to their customers. It should therefore remain possible for the parties to expressly agree on payment periods longer than 60 calendar days, provided, however, that such extension is not grossly unfair to the creditor.

…

(28)      This Directive should prohibit abuse of freedom of contract to the disadvantage of the creditor. As a result, where a term in a contract 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 not justified on the grounds of the terms granted to the debtor, or it mainly serves the purpose of procuring the debtor additional liquidity at the expense of the creditor, it may be regarded as constituting such an abuse. …’

6.        Article 1 of the directive, entitled ‘Subject matter and scope’, states:

‘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.

…’

7.        Article 2 of the directive, entitled ‘Definitions’, provides:

‘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 ^[(3)^] and in Article 1(9) of Directive 2004/18/EC, ^[(4)^] 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;

(5)      “interest for late payment” means statutory interest for late payment or interest at a rate agreed upon between undertakings, subject to Article 7;

(6)      “statutory interest for late payment” means simple interest for late payment at a rate which is equal to the sum of the reference rate and at least eight percentage points;

…’

8.        Article 3(1), (3) and (5) of the directive, entitled ‘Transactions between undertakings’, provide:

‘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.

…

3.      Where the conditions set out in paragraph 1 are satisfied, Member States shall ensure the following:

(a)      that the creditor is entitled to interest for late payment from the day following the date or the end of the period for payment fixed in the contract;

…

5.      Member States shall ensure that the period for payment fixed in the contract does not exceed 60 calendar days, unless otherwise expressly agreed in the contract and provided it is not grossly unfair to the creditor within the meaning of Article 7.’

9.        Article 7 of Directive 2011/7, entitled ‘Unfair contractual terms and practices’, provides, in paragraph 1 thereof:

‘1.      Member States shall provide that a contractual term or practice relating to … the rate of interest for late payment … 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:

…

(c)      whether the debtor has any objective reason to deviate from the statutory rate of interest for late payment, from the payment periods as referred to in Article 3(5) …’

B.      Polish law

10.      The ustawa o przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (Law on counteracting excessive delays in commercial transactions) of 8 March 2013, (5) which transposed Directive 2011/7 into Polish law, in the version applicable to the dispute in the main proceedings (‘the Law of 8 March 2013’), states in Article 5:

‘Where the parties to a commercial transaction, with the exception of public entities in the medical sector …, have provided in the contract for a period of payment longer than 30 days, the creditor may claim statutory interest at the end of a period of 30 days, calculated from the date of performance of its services and of the submission to the debtor of an invoice or memorandum confirming delivery of goods or provision of a service, up to the date of payment, provided that it does not go beyond the due date for payment.’

11.      Article 7 of the Law of 8 March 2013 reads as follows:

‘1.      In commercial transactions, with the exception of transactions in which the debtor is a public entity, the creditor shall, without demand, be entitled to statutory interest for late payment in commercial transactions, unless the parties have agreed on higher interest, for the period from the due date for payment to the actual date of payment, if all the following conditions are met:

(1)      the creditor has performed its obligations;

(2)      the creditor has not received payment within the period laid down in the contract.

2.      The period for payment fixed in the contract may not exceed 60 days from the date of submission to the debtor of the invoice or memorandum confirming delivery of the goods or provision of the service, unless otherwise expressly agreed by the parties in the contract and provided that such stipulation is not grossly unfair to the creditor.

3.      Where the period for payment fixed in the contract is longer than 60 days from the date of submission to the debtor of the invoice or memorandum confirming delivery of the goods or provision of the service and where the condition referred to in paragraph 2 is not met, a creditor that has performed its obligations shall be entitled, on expiry of the period of 60 days, to the interest referred to in paragraph 1.’

12.      Article 11b of the law states:

‘To determine the amount of statutory interest for late payment in commercial transactions, the reference rate of the National Bank of Poland in force at the dates below shall apply:

(1)      on 1 January: for interest due for the period from 1 January to 30 June;

(2)      on 1 July: for interest due for the period from 1 July to 31 December.’

III. The main proceedings, the question referred for a preliminary ruling and the procedure before the Court of Justice

13.      The main proceedings concern a dispute between A., a limited liability company under Polish law, which carries on an economic activity involving, in particular, the manufacture of electronic mining equipment and P., a joint stock company under Polish law – one of the largest mining companies in Europe, whose economic activity consists, inter alia, in mining and selling coal.

14.      In 2018 and 2019, P. concluded several contracts with A. for the supply of mining equipment (‘the contracts at issue’). Some of those contracts were concluded at the end of auctions (in the form of spot auctions) organised on a website managed by P., on which information about the specific contract and the terms and conditions for its performance were published. Participation in the auctions, which took place in electronic form, therefore implied acceptance of those terms and conditions. Other contracts were concluded following a public or non-public call for tenders in accordance with the terms and conditions unilaterally determined in the specifications prepared by P. That document was drawn up independently by P., and A. had no say in its content. A. had the possibility of lodging an appeal to contest those conditions, (6) but did not do so in the present case.

15.      In the case of both the auction and the call for tenders, the deadline for payment was set by P. at 120 days from the date on which it received the invoice, with no possibility for the other party to change that deadline. The contracts at issue could only be concluded after A. had accepted the terms and conditions laid down by P., including the period for payment of 120 days from the date on which P. received the invoice. (7)

16.      Thus, the two parties entered into a number of contracts which were performed by A. and for which the latter submitted partial invoices to P., which paid 354 invoices issued by A. within 120 to 122 days from the date of receipt of those invoices. Subsequently, in view of the fact that payment had been made after the expiry of the 120-day period laid down in the contracts at issue, A. sent P. a summary accounting note containing, in addition to the principal amounts of the claims, the amounts due by way of late payment interest and compensation in the form of a fixed sum (in the present case, EUR 40 per invoice).

17.      On 31 December 2021, A. brought an action before the Sąd Rejonowy Katowice – Wschód w Katowicach (District Court, Katowice-East, Katowice), the referring court, seeking payment by P. of 13 702.99 zlotys (PLN) (approximately EUR 2 985), together with statutory interest for late payment between the lodging of the application and the date of payment, and PLN 4 473.04 (approximately EUR 975) by way of debt recovery costs. For the period from the 31st to the 60th day following the date on which the invoice was issued, the applicant calculated late payment interest at a reduced rate pursuant to Article 5 of the Law of 8 March 2013. However, for the period from the 61st day until the date of payment, it calculated that interest at a higher rate pursuant to Article 7 of that law.

18.      In support of its claim for interest based on Article 7 of the abovementioned law, A. argued that it was entitled to calculate interest in that manner because the 120-day payment term had not been negotiated by the parties, but unilaterally imposed by P. in the model contract annexed to the published specifications. (8)

19.      On 26 January 2022, the referendarz sądowy (Registrar, Poland) of the referring court issued an order for payment granting A.’s claim in its entirety.

20.      P. lodged a partial appeal against that order, challenging in particular that part of the interest that had been calculated pursuant to Article 7 of the Law of 8 March 2013. In support of its action, it argued that the period for payment of the invoices should have been 60 days and submitted that the invoices were paid on their due date, without delay, so that the applicant was not entitled to any compensation for recovery costs. According to P., A. accepted the 120-day period for payment, and the invoices it issued also mentioned that period for payment. In view of the fact that A. had acquainted itself with the specifications and had then itself submitted to P., in the context of the tendering procedures, tenders in which a 120-day payment term was provided for, and after winning the tenders concluded a number of contracts in which it confirmed the payment term and did not dispute the arrangements made in that regard, it should be considered that the parties had agreed on an extended period for payment. P. also stated that between 2018 and 2020 it had entered into, as a seller, a number of supply contracts with identical payment terms, so, in its view, it cannot be considered that the indicated term is detrimental to the creditor, as the applicant had certainty that it would sell its services, earn income and maintain liquidity. (9)

21.      In those circumstances, the referring court considers it necessary to determine whether the period for payment laid down in the contracts at issue, which exceeded 60 days from the date on which the invoice was submitted to the debtor, was fixed in compliance with the conditions laid down in Article 7(2) of the Law of 8 March 2013, which transposes Article 3(5) of Directive 2011/7 into the Polish legal system.

22.      In that regard, the referring court is minded, in particular, to hold that contracts whose terms are determined unilaterally by one of the parties do not satisfy either the first condition laid down in Article 3(5), namely the ‘express agreement’ in the contract to a period for payment exceeding 60 days, (10) or the second condition, pursuant to which a period for payment fixed in the contract exceeding 60 days must not be grossly unfair to the creditor. (11)

23.      In those circumstances, the Sąd Rejonowy Katowice – Wschód w Katowicach (District Court, Katowice-East, Katowice) stayed proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘Must Article 3(5) of Directive [2011/7] be interpreted as meaning that a period for payment longer than 60 days may be expressly stipulated by undertakings only in contracts in which the contractual terms are not determined unilaterally by one of the contracting parties?’

24.      Written observations were submitted to the Court of Justice by P., the Polish and German Governments and the European Commission.

IV.    Analysis

A.      Admissibility of the question referred for a preliminary ruling

25.      Before analysing the single question referred for a preliminary ruling by the referring court, it is necessary to rule on its admissibility.

26.      In its written observations, the German Government submits that the question referred for a preliminary ruling is inadmissible on the ground that the interpretation of EU law sought is not relevant to the outcome of the case in the main proceedings because the decision which the referring court also depends on another question, which is not the subject of the present request for a preliminary ruling and on which the referring court has not yet ruled, namely whether the period for payment fixed in the contracts at issue, which exceeds the general period of 60 days, is ‘grossly unfair to the creditor’.

27.      In that regard, it should be noted that, according to the settled case-law of the Court, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court of Justice. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. Thus, the Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (12)

28.      In the present case, however, the question referred by the referring court clearly meets an objective need for the effective resolution of the dispute in the main proceedings. The question of whether EU law precludes the application of national legislation which allows contracting parties to expressly agree payment periods longer than 60 days only in the case of contracts whose terms are not defined by one of the contracting parties is one which the referring court must determine in order to decide the dispute in the main proceedings. The fact that, for the purposes of the decision which it will give, that court will be called upon, where appropriate, to determine other questions that it did not address in the order for reference does not mean that the question referred for a preliminary ruling is irrelevant to the outcome of the case in the main proceedings.

29.      I therefore consider that the present request for a preliminary ruling is admissible.

B.      Substance

30.      By its question for a preliminary ruling, the referring court asks, in essence, whether Article 3(5) of Directive 2011/7 must be interpreted as meaning that, when a contract is concluded between undertakings, the acceptance of a period for payment arising from the use of documents drawn up unilaterally by the debtor may be regarded as an ‘express agreement’, or whether that wording should be understood as meaning that that concept relates only to contracts individually negotiated by the parties, so that a period of payment of more than 60 days may be agreed only in contracts of the latter type.

1.      Provisions applicable in the present case

31.       The legal analysis of the question referred for a preliminary ruling by the referring court requires, in my view, some preliminary observations on the determination of the provisions of Directive 2011/7 applicable in the present case.

32.      In that regard, it must be noted, first, that, according to Article 1(2) thereof, Directive 2011/7 is to apply to all payments made as remuneration for ‘commercial transactions’ and, second, that that concept is defined, broadly, in Article 2(1) of that directive, as ‘transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration’. Thus, the latter provision establishes two cumulative conditions that must be satisfied in order for a transaction to be classified as a ‘commercial transaction’. First, it must be carried out either between undertakings or between undertakings and public authorities and, second, it must lead to the delivery of goods or the provision of services for remuneration. (13)

33.      In the present case, it is common ground that the second condition is satisfied. There is no doubt that A. delivered goods to P. (namely, ‘automation and control equipment for the machines used by P. to ensure the continued operation of the mining installation and the continued operation of the machines’) in return for specified remuneration.

34.      On the other hand, as regards the first condition, it cannot be ruled out, on the face of it, that some of the contracts at issue, in particular those concluded following a public call for tenders, may be classified as transactions between an ‘undertaking’ (namely A.) and a ‘public authority’ (namely P.). Indeed, as the Commission points out in its written observations, first, the Polish State Treasury is P.’s sole shareholder and, second, P.’s economic activity is mining, an activity which could be assimilated to the activity of ‘exploring for, or extracting, coal or other solid fuels’ within the meaning of Article 14(b) of Directive 2014/25/EU. (14)

35.      The legal classification of those transactions is decisive as regards the applicable provisions of the directive, since transactions between undertakings and public authorities are subject not to the conditions of Article 3 of the directive (entitled ‘Transactions between undertakings’) but to those of Article 4 (entitled ‘Transactions between undertakings and public authorities’). The latter article lays down stricter conditions as regards both compliance with payment periods (15) and the possibility of expressly stipulating longer payment periods in the contract, (16) a central issue in the present case.

36.      In those circumstances, pursuant to Article 101(1) of its Rules of Procedure, the Court of Justice sent the referring court a request for information asking it to clarify P.’s legal status.

37.      In its reply received by the Court of Justice on 4 October 2023, the referring court confirmed, on the basis of the evidence before it, that P. was to be regarded as an ‘undertaking’ within the meaning of Article 2(3) of Directive 2011/7 and not as acting as a ‘public authority’ within the meaning of Article 2(2) thereof. In its view, although the Polish State Treasury is the sole shareholder of P., that undertaking was established principally in order to make a profit from its mineral deposits and not to meet needs in the general interest not having an industrial or commercial character.

38.      Having regard to the clarifications provided by the referring court, whose factual assessments in relation to the legal classification cannot, in any event, be called into question by the Court, (17) I propose to rule out any reformulation of the question referred for a preliminary ruling to include Article 4 of Directive 2011/7, and thus to proceed with the analysis of the question referred for a preliminary ruling as formulated by the referring court.

2.      Consideration of the question referred

39.      As a preliminary point, it should be noted that Article 3(5) of Directive 2011/7 contains no definition or clarifications regarding the concept of ‘otherwise expressly agreed in the contract’, nor is any reference made to the law of the Member States for the purposes of determining the concept’s meaning or scope. In those circumstances, such a concept 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. Such an interpretation must take account of the terms of that provision, its context and the objectives it pursues and, where appropriate, its origins. (18)

(a)    Textual interpretation

40.      As regards, first, the terms of Article 3(5) of Directive 2011/7, as the referring court pointed out, (19) that provision makes the validity of an agreed period for payment exceeding 60 calendar days subject to two cumulative conditions, namely a formal condition (the time limit must be ‘expressly agreed in the contract’) and a substantive condition (it must not be ‘grossly unfair to the creditor within the meaning of Article 7’).

41.      It is clear from the wording of the provision that it does not directly settle the question of whether an ‘express agreement’ may appear in contracts the content of which has been unilaterally drawn up by one of the parties. The formal condition that there be an ‘express agreement’ (within the meaning of Article 3(5) of Directive 2011/7 and of recital 13 of the directive) (20) refers, not to the manner in which the contract was agreed, (21) but rather to the requirement that the contract must ‘expressly’ set out the stipulation relating to the period for payment, that is to say, it must word it in a sufficiently clear and unequivocal manner to ensure that the contracting parties are fully aware of it without having to deduce any extension of the period for payment from other contractual terms or from the actual conduct of the contracting parties. (22)

42.      A fortiori, and contrary to the analysis of the referring court, it cannot be inferred from the wording of Article 3(5) of Directive 2011/7 that there is an ‘express agreement’ only where that agreement has been the subject of individual negotiation. Indeed, the wording of that article precludes such an interpretation, in so far as, by using the wording ‘expressly agreed’ the EU legislature does not specify which contracting party has included the clause relating to the period for payment in the contract, and makes no distinction according to whether or not the term was the subject of individual negotiation. Similarly, it draws no distinction between an ‘individual agreement’ and a ‘pre-formulated standard contract’. As the German Government rightly points out, if the EU legislature had wished to draw such a distinction in order to take account of the fact that a term has been individually negotiated, it would have opted for a different wording which would require such negotiation to be compulsory. (23)

43.      It therefore follows from the wording of Article 3(5) of Directive 2011/7 that the contracting parties may, in their contractual relations, extend the statutory 60-day period, provided that the content of the term providing for such an extension is sufficiently clear and unambiguous for the contracting party that is considered to be the weaker party.

44.      That conclusion cannot, in my view, be called into question by the argument put forward in particular by the Commission that, in essence, the terms ‘expressly agreed’ (used in Article 3(5) of that directive) or ‘expressly agree’ (mentioned in recital 13 of that directive) necessarily refer to active participation by the creditor in the conclusion of the contract, so as to genuinely influence its substance. The fact that it should remain possible for the contracting parties to ‘expressly agree’ payment periods in excess of 60 days cannot be read as a requirement for all the contracting parties to actively participate in drawing up the term. The fact that the terms of a contract are drawn up solely by one of the contracting parties cannot, except in cases of unfairness, (24) be equated with an absence of agreement, or an invalid agreement, between the contracting parties. To hold otherwise would lead to the paradoxical conclusion that there is a presumption that standardised contracts, such as pre-formulated standard contracts, cannot reflect the common will of the contracting parties unless each term included in them is the subject of individual negotiation. (25)

(b)    Contextual interpretation

45.      Second, with regard to the context of the provision at issue, it seems to me that the contextual interpretation corroborates the textual interpretation given above.

46.      As indicated in point 40 of the present Opinion, in addition to the formal condition relating to ‘express agreement’, the substantive condition requires that the term in question must not ‘be grossly unfair to the creditor within the meaning of Article 7 [of Directive 2011/7]’. The latter provision, which contains the factors that must be taken into account in order to determine, inter alia, whether a contractual term is grossly unfair to the creditor, cannot be interpreted as being limited to terms that have been ‘individually negotiated’. The second subparagraph of Article 7(1) of Directive 2011/7 states that, in order to determine whether a term is unfair, ‘all circumstances of the case shall be considered’, including ‘whether the debtor has any objective reason to deviate from the statutory rate of interest for late payment [and, inter alia,] from the payment period as referred to in Article 3(5) … [of that directive]’. It follows that the fact that a term concerning the period for payment was fixed by one of the contracting parties may constitute one of the factors to be taken into consideration in the present case. The prohibition on terms that are grossly unfair to the creditor thus guarantees the overall protection of the creditor, whether the payment terms were negotiated individually or defined by one of the parties. Therefore, it seems consistent that both types of terms may be regarded as ‘expressly agreed’.

(c)    Teleological interpretation

47.      Third, the aim pursued by Directive 2011/7 also seems to support that interpretation.

48.      As is apparent from recital 12 in the preamble to the directive, Article 3(5) of Directive 2011/7 forms part of the broader objective of establishing ‘a decisive shift to a culture of prompt payment … Such a shift should also include the introduction of specific provisions on payment periods …’. (26) Accordingly, pursuant to recital 13 in the preamble to that directive, the aforementioned provision is intended to implement the legislature’s intention that ‘business-to-business contractual payment periods … be limited, as a general rule, to 60 calendar days’. However, the EU legislature accepts that ‘there may be circumstances in which undertakings require more extensive payment periods, for example when undertakings wish to grant trade credit to their customers. It should therefore remain possible for the parties to expressly agree on payment periods longer than 60 calendar days, provided, however that such extension is not grossly unfair to the creditor’. Article 3(5) of Directive 2011/7 therefore codifies the framework sought by the EU legislature as regards the possibility of allowing such a contractual extension of the statutory 60-day period. (27)

49.      I consider that that objective cannot be compromised by the fact that one of the contracting parties unilaterally determines a term providing for a period for payment of more than 60 days, such as when using pre-established general terms and conditions. The choice of a term of that type does not exempt the contracting parties from complying with all the conditions laid down in Article 3(5) of Directive 2011/7. A period for payment that is determined unilaterally by one of the contracting parties and that exceeds the 60-day limit must also be set out ‘expressly’, in other words, sufficiently clearly, in the contractual documents and must not be grossly unfair to the creditor. On that point, I would point out that the penalty mechanisms provided for in Article 7 of that directive, under which Member States are to determine that unfair contractual terms are either unenforceable or give rise to a claim for damages, also apply in the abovementioned situations.

50.      Thus, the requirement of an ‘express agreement’ is designed to enable the contracting party regarded as the weaker one (in general, the creditor) to determine sufficiently clearly, namely before the contract is concluded, whether it accepts a term that may be detrimental to its interests pursuant to Article 3(5) of Directive 2011/7. The party regarded as ‘weaker’ needs such protection, irrespective of whether the term that may be detrimental to it appears in a contract that has been the subject of individual negotiation or is included in contractual terms and conditions drawn up in advance.

51.      Lastly, such a finding cannot be rebutted by the argument put forward, inter alia, by the referring court, to the effect that the purpose of the provision is to protect the creditor against excessive time limits. Protecting creditors does not justify automatically declaring unlawful agreed payment periods that have been unilaterally determined by the debtor. Such an interpretation would go beyond the objective pursued by Directive 2011/7. Thus, Article 7(1) of the directive does not provide that payment periods of more than 60 days that have been unilaterally determined by one of the contracting parties are, in themselves, ‘grossly unfair’, but rather sets out the circumstances that are to be considered, by listing the main assessment criteria. (28) Accordingly, it is not ruled out from the outset that a period for payment of more than 60 days, fixed by one of the contracting parties, may also meet the criteria for a permitted exception.

52.      Similarly, while the rationale behind Article 3(5) of Directive 2011/7 is to limit the use of payment periods exceeding 60 days to exceptional situations in which undertakings ‘require more extensive payment periods’, that does not mean that allowing an undertaking to unilaterally impose a term extending the period for payment is in itself indicative of the absence of a need for such ‘more extensive payment periods’. In any event, in a case where a creditor considers that such a need is not present or justified, it should be able to challenge the validity of the term in question by arguing that, for example, because of its excessive duration or lack of justification, the term is ‘grossly unfair’ to it and so does not meet the second condition laid down in Article 3(5) of the directive. In my view, it is that second substantive condition which is relevant and which ensures that extended payment periods are used only where such periods are justified, in particular in the case of ‘express agreement’ imposed on economically weaker undertakings, such as SMEs. (29) Moreover, Article 7(4) and (5) of that directive provides that Member States are to ensure that ‘adequate and effective means’ exist to prevent the continued use of grossly unfair terms. Consequently, and contrary to the Commission’s submission in its written observations, I do not consider that there is a real risk of a ‘sudden increase’ in the use of forms imposing payment periods longer than 60 days solely as a result of the acceptance that a contractual term unilaterally fixed by one of the contracting parties may fulfil the criterion of ‘express agreement’ within the meaning of Article 3(5) of that directive. (30)

(d)    Drafting history of Directive 2011/7

53.      Fourth, and lastly, with regard to the drafting history of Directive 2011/7, it should be noted that it leads to the same conclusion. The Commission’s initial proposal did not provide for any specific requirements in relation to contractual stipulations regarding a payment term exceeding certain thresholds, setting out only a general condition that the period for payment agreed should not be grossly unfair to the creditor. (31) Similarly, while the European Parliament asked for an amendment to the effect that laying down periods longer than 60 days should be subject to certain conditions, it does not appear that Parliament wished to prohibit the fixing of payment terms of more than 60 days in standardised terms drawn up in advance. (32)

54.      Having regard to all the foregoing considerations, I propose to answer the question referred for a preliminary ruling by the referring court as follows: Article 3(5) of Directive 2011/7 must be interpreted as meaning that the ‘express agreement’ to a period for payment longer than 60 calendar days is valid in contracts between undertakings the terms of which are determined unilaterally by one of the contracting parties, provided that that agreement is sufficiently clear and unequivocal from those contracts to ensure that the contracting parties are fully aware of it; an extension of the period for payment cannot be merely deduced from other contractual terms or from the actual conduct of the contracting parties.

V.      Conclusion

55.      In the light of the foregoing considerations, I propose that the Court should reply as follows to the question referred by the Sąd Rejonowy Katowice – Wschód w Katowicach (District Court, Katowice-East, Katowice, Poland) for a preliminary ruling:

Article 3(5) 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 meaning that the ‘express agreement’ to a period for payment longer than 60 calendar days is valid in contracts between undertakings the terms of which are determined unilaterally by one of the contracting parties, provided that that agreement is sufficiently clear and unequivocal from those contracts to ensure that the contracting parties are fully aware of it; an extension of the period for payment cannot be merely deduced from other contractual terms or from the actual conduct of the contracting parties.

1      Original language: French.

2      Directive 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).

3      Directive 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).

4      Directive 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).

5      Dz. U. of 2013, item 403.

6      It is apparent from the order for reference, in the context of the tender procedure, that the way that A. could take action regarding the essential terms and conditions of the contracts at issue was to lodge an appeal with the President of the Krajowa Izba Odwoławcza (National Appeals Chamber, Poland), whose decision could be challenged by way of an action before the Sąd Okręgowy (Regional Court, Poland).

7      According to the referring court, P. submits that it is apparent from other contracts concluded between the parties, which are not the subject of the present proceedings but a summary of which was produced in the national proceedings, that the period for payment for each of those contracts was also 120 days.

8      According to A., the deadline was not negotiated at any time but unilaterally set by P. because of its dominant position on the market. In order to participate in a procurement procedure organised by P., it was necessary to deliver in accordance with the terms and conditions specified by it, which were not subject to negotiation. According to the applicant, despite numerous attempts over the years to amend the contractual clauses concerning the period for payment, by means of questions about the specifications, they were not amended to reduce the period for payment to 60 days.

9      In addition, P. considered that it was entitled to determine the contract terms in accordance with its own financial capabilities, which are specific to the market, and fully reflect the situation of coal mining companies in Poland. It also argues that while the 120-day period for payment is a lengthy one, the counterparty learned about it at the tender announcement stage, sufficiently in advance, which allowed it to price its bid accordingly.

10      The referring court points out that, in the context of commercial transactions, contracts are often concluded by accepting the terms drawn up in advance by one of the parties. Under such contracts, a considerable number of provisions, namely those that have not been jointly drawn up or negotiated, cannot be changed. Such agreements thus take the form of accepting the contract as presented by the counterparty. In the view of the referring court, therefore, Article 3(5) of Directive 2011/7 must be interpreted as meaning that ‘express agreement’ by undertakings to a period for payment exceeding 60 days does not apply to that type of contract, the terms of which are determined unilaterally by one of the contracting parties. Such an interpretation is supported, in the referring court’s view, by the purpose of that directive, which is to combat late payments in the internal market and to improve the liquidity and competitiveness of undertakings. As a general rule, for private undertakings, the period for payment should not exceed 60 days. However, that is not a rigid deadline as, pursuant to recital 13 of Directive 2011/7, it may be extended when justified by circumstances and provided that the period is expressly agreed between the undertakings. Thus, both the EU legislature and the national legislature employ the concept of ‘express agreement’ in the sense of ‘qualified agreement’. In the view of the referring court, however, the period for payment must only be extended in exceptional circumstances and the creditor should at least know the reasons why the other party intends to take advantage of that exception. Moreover, cognisant of those reasons, it should be able to assess whether the period proposed by the other party, even if it is reasonably extended beyond 60 days, is not excessive, and, potentially, to put forward its own arguments that would justify a different period for payment. On the other hand, the referring court considers that that is not the case with contracts concluded by tender or auction, and also other pre-formulated standard contracts. In such cases, the parties may either accept the terms and conditions of the future contract fixed by one of the parties or not enter into the contract at all. Only in the case of a public tender is it possible to appeal against certain contractual terms. However, in such a case one is not dealing with an agreement by the parties, but rather with a decision of an authority that is outside the contract itself.

11      According to the referring court, that condition refers to the specific creditor and to the fact they should not be subject to gross unfairness. However, in addition to the objective factors listed in Article 7 of Directive 2011/7, the creditor’s situation should also be taken into account at the stage of concluding the contract and determining the length of the period for payment. That is the right time to assess the situation and the actual impact of the extension of the payment term on the creditor, namely whether it constitutes gross unfairness to the creditor. That is only possible, according to the referring court, when the creditor’s identity is known. In fact, according to the referring court, it cannot be ruled out that, with respect to a certain creditor, a significant extension of the period for payment could be considered ‘grossly unfair’ while for another creditor it would ‘simply be unfair’. In that court’s view, it should be noted that the EU legislature provides for different arrangements when a commercial transaction takes place between a public undertaking and public authorities, indicating that a period longer than 30 days should also be the result of an express agreement, but that in such a case it is sufficient that it is objectively justified in the light of the particular nature or features of the contract, and not by the creditor’s situation. At the same time, it was stipulated that, in any event, the period must not exceed 60 days. Finally, the referring court states that the interpretation provided by it also allows the objectives of Directive 2011/7 to be more fully achieved. Although the risk of companies unilaterally and unreasonably applying longer payment periods to counterparties in order to finance their current operations is low, it is not uncommon for such a move to adversely affect those counterparties’ liquidity and competitiveness.

12      See, to that effect, judgment of 21 December 2023, Infraestruturas de Portugal and Futrifer Indústrias Ferroviárias (C‑66/22, EU:C:2023:1016, paragraphs 33 and 34).

13      See judgment of 1 December 2022, X (Deliveries of medical products) (C‑419/21, EU:C:2022:948, paragraphs 20 and 23 and the case-law cited).

14      Directive of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243).

15      See judgment of 28 January 2020, Commission v Italy (Directive combating late payment) (C‑122/18, EU:C:2020:41, paragraph 43).

16      See Article 4(6) of Directive 2011/7, which, contrary to Article 3(5) of that directive, provides that the period for payment laid down in the contract ‘in any event [must] not exceed 60 calendar days’ (emphasis added). That provision therefore, in any event, precludes P., in so far as it can be classified as a ‘public authority’, from laying down a clause providing for a period for payment of 120 days. See, in that regard, my Opinion in BFF Finance Iberia (C‑585/20, EU:C:2022:329, points 36 to 54).

17      See, to that effect, judgment of 27 October 2022, Instituto do Cinema e do Audiovisual (C‑411/21, EU:C:2022:836, paragraphs 16 and 17).

18      See, to that effect, judgments of 9 July 2020, RL (Directive combating late payment) (C‑199/19, EU:C:2020:548, paragraph 27), and of 18 November 2020, Techbau (C‑299/19, EU:C:2020:937, paragraph 38).

19      See point 22 of the present Opinion.

20      I note that in the French-language version of Article 3(5) of Directive 2011/7, the verb used, namely ‘stipuler’ – which, by definition, merely signifies, neutrally, to state a clause or condition in a contract (see the definition in the Larousse dictionary, at: https://www.larousse.fr/dictionnaires/francais/stipuler/74741) – does not correspond to the verb ‘convenir’, which is used in recital 13 of the directive, in the sense of ‘agree on something’. However, in most of the other language versions, there is consistency between the verb used in recital 13 and in Article 3(5) of the directive (see, respectively, the English-language version ‘possible for the parties to expressly agree’/‘unless otherwise expressly agreed in the contract’; the German-language version ‘die Vertragsparteien sollten daher … ausdrücklich vereinbaren können’/‘es sei denn im Vertrag wurde ausdrücklich etwas anderes vereinbart’; the Italian language version ‘la possibilità per le parti di concordare espressamente’/‘se non diversamente concordato espressamente nel contratto’; the Spanish-language version ‘la posibilidad de acordar expresamente’/‘salvo acuerdo expreso en contrario recogido en el contrato’; and the Greek-language version ‘δυνατότητα των μερών να συμφωνούν ρητά’/‘εκτός εάν ρητά συμφωνήθηκε διαφορετικά στο κείμενο της σύμβασης’ (emphasis added). According to settled case-law of the Court, where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 88 and the case-law cited).

21      Or, again, as to the manner in which the agreed clause was concluded and without specifying, in particular, whether it may appear in contractual terms and conditions drawn up in advance. I note that, like Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35), Directive 2011/7 was not intended to ‘affect national provisions relating to the way contracts are concluded’ (see recital 19 of Directive 2000/35 and recital 28 of Directive 2011/7).

22      As the German Government points out, that interpretation is supported by the use of that concept in other EU legal acts. For example, Article 7(4)(a), Article 13(1), Article 14(4)(a)(ii) and Article 22 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64) make certain derogations from the general rules of that directive subject to the express agreement or the express consent of the consumer. Pursuant to Article 18(2) of Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (OJ 2019 L 136, p. 1), reimbursement is to be carried out using the same means of payment as that used to pay, unless the consumer expressly agrees otherwise. Pursuant to Article 6(5) of Directive 2011/83, certain information provided prior to the conclusion of the contract forms an integral part of a distance contract, unless the contracting parties ‘expressly’ agree otherwise (emphasis added). Article 13(1) of Directive 2019/770 is worded in similar terms as regards ‘an additional period of time, as expressly agreed to by the parties’. Moreover, where the EU legislature wishes to impose stricter requirements in relation to a term and to exclude a stipulation in general terms, it usually expresses that intention, as demonstrated, for example, by Article 8(5) of Directive 2019/770. That provision provides that the consumer must have not only expressly but also separately accepted deviation by a digital product from the objective requirements (‘expressly and separately accepted that deviation when concluding the contract’). The term ‘separately’ means that the consumer accepts the deviation ‘separately from other statements or agreements’, which rules out the possibility of providing for such a deviation in the many general terms and conditions drawn up in advance (see recital 49 of Directive 2019/770).

23      By way of illustration, Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) defines the situation in which a term in a contract ‘which has not been individually negotiated’ is regarded as unfair (emphasis added). Pursuant to Article 3(2) of that directive, a term is always to be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

24      See, point 52 of the present Opinion.

25      Furthermore, it should be observed that the only presumption in Directive 2011/7 is that set out in Article 7(3) thereof, pursuant to which ‘a contractual term … which excludes compensation for recovery costs as referred to in Article 6 shall be presumed to be grossly unfair’.

26      See, also, in that regard, my Opinion in BFF Finance Iberia (C‑585/20, EU:C:2022:329, point 48).

27      A contractual extension of the statutory period would also be justified where the procedure of verification of the goods or services is objectively more time-consuming.

28      Thus, the circumstances referred to in that article show that it is necessary to consider not only the extent of the harm suffered by the creditor, but also other circumstances, in particular whether the period deviates from ‘good commercial practice’ [Article 7(1)(a) of Directive 2011/7], the nature of the product or the service which is the subject matter of the contract [Article 7(1)(b) of that directive] and whether the debtor has an objective reason, namely a legitimate interest, in benefiting from a period longer than 60 days [Article 7(1)(c) of the directive; see, in that regard, the example referred to in recital 13 of the directive].

29      See, in that regard, Article 1(1) of Directive 2011/7.

30      In that connection, I note that, in the context of the current revision of Directive 2011/7 and, inter alia, of the Commission’s proposal for a regulation of 12 September 2023 [COM(2023) 533 final], the Commission finds that ‘the root cause of late payments is asymmetries in bargaining power between a large client (debtor) and a smaller supplier (creditor)’ and that ‘this often results in the supplier’s having to accept unfair payment terms’. It is therefore precisely in order to avoid that type of unfairness that ‘the long-term measures recommended include limiting contractual payment terms to a maximum of 30 days for payments from a large company to a SME’. The new Article 3 in the Commission’s proposal for a regulation is ‘stricter than the current Directive’s Articles 3 and 4, by limiting the payment period and the duration of the procedure of acceptance or verification to a maximum of 30 days, and by eliminating any reference to the concept of grossly unfair practices and clauses’.

31      See Article 6 of the Proposal for a Directive of the European Parliament and of the Council on combating late payment in commercial transactions implementing the Small Business Act [(COM(2009) 126 final] which replaced and amended Article 3(3), (4) and (5) of Directive 2000/35. In that respect, see also recital 18 of Directive 2000/35 which merely recognises ‘the existence of certain categories of contracts where a longer payment period in combination with a restriction of freedom of contract or a higher interest rate can be justified’.

32      See the European Parliament’s report of 4 May 2010 (A7-0136/2010) on the proposal, and in particular Amendment 3 and 24. The proposed modification provided that exceeding the maximum 60-day limit was permissible provided that the parties had ‘specifically agree[d]’ and that exceeding the limit ‘does not lead to unjustified damages’ for any of the contracting parties.