The purpose of the so-called Anti-Payment Backlog Act, i.e. the Act of 8 March 2013 on Counteracting Excessive Delays in Commercial Transactions, was, among other things, to make it easier for businesses to recover amounts due from counterparties that are late with payment. However, the Supreme Court’s latest resolution means that exercising the rights under that Act will entail higher costs in court proceedings.
What is the Anti-Payment Backlog Act?
Besides transposing Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions into national law, the purpose of the Anti-Payment Backlog Act was to tackle the growing problem of payment backlogs and introduce systemic solutions that would help businesses reduce delays in receiving amounts due and discipline parties to contracts to use short payment periods.
The explanatory memorandum to the bill for the Anti-Payment Backlog Act stated that its predecessor then in force (the Act of 12 June 2003 on Payment Terms in Commercial Transactions) had proved insufficient to protect the parties’ interests. This was particularly due to the lack of effective tools compelling counterparties – both businesses and public authorities – to make payments by the deadlines specified in their contracts.
Agreements defined by the Anti-Payment Backlog Act as commercial transactions are agreements governed by the Act whose subject matter is the supply of goods or the provision of services for consideration, provided that the parties, described in detail in Article 2 of the Anti-Payment Backlog Act, conclude them in connection with their business activities (Article 4 § 1 of the Anti-Payment Backlog Act).
The best-known and most frequently used mechanisms introduced by the Anti-Payment Backlog Act are compensation for debt recovery costs (Article 10 of the Anti-Payment Backlog Act) and interest accruing by operation of law, which may be charged without first calling upon the counterparty to pay and irrespective of whether a payment date has been stipulated in the agreement (Articles 5-8 of the Anti-Payment Backlog Act).
Quite apart from the effectiveness of the mechanisms introduced, the very small number of cases brought before the Supreme Court concerning the interpretation of the Act’s provisions undoubtedly supports a positive assessment of its quality. Of the mere 25 decisions listed in the Supreme Court’s case-law database that refer in any way to the Anti-Payment Backlog Act, a substantial proportion are orders refusing to admit a cassation appeal for examination or decisions that mention the Act only incidentally.
This small body of Supreme Court case law concerning the Anti-Payment Backlog Act relates in particular to compensation for debt recovery costs. To date, the following issues have required the Supreme Court to interpret the relevant provisions:
- calculation of the limitation period for a claim for compensation under Article 10 of the Anti-Payment Backlog Act, to which the periods specified in Article 118 of the Civil Code apply (resolution of 30 September 2021, case no. II CZP 37/20);
- the inapplicability of the Anti-Payment Backlog Act to delays involving reciprocal monetary obligations, including the payment of a contractual penalty (judgment of 15 November 2017, case no. II CSK 122/17);
- the absence of any requirement to prove that debt recovery costs have been incurred to assert a claim for compensation under Article 10 of the Anti-Payment Backlog Act (resolution of 11 December 2015, case no. III CZP 94/15).
The most significant uncertainty, however, concerned the legal nature of the compensation and its procedural classification.
Legal nature of compensation for debt recovery costs
From the outset, the compensation mechanism was designed to grant creditors the right to claim it without satisfying any additional requirements (including making a prior demand for payment) and without incurring any loss as a result of the debtor’s delay in performing its obligation (Supreme Court judgment of 7 July 2017, case no. V CSK 660/16).
Creditors therefore have a strong entitlement because, in addition to there being no prerequisites for asserting such a claim, compensation is due in respect of every payment that was not made on time and constitutes remuneration under a commercial transaction. It does not matter whether the claim concerns several payments for successive deliveries under the same agreement with a given counterparty or payments under several separate agreements. It is therefore possible to claim multiple compensation amounts and charge them to the party in arrears.
It remained unclear, however, whether a claim for payment of compensation was independent or ancillary. This issue went beyond a purely theoretical discussion, as it had a material impact on the practice of drafting statements of claim for payment against counterparties in default on amounts due.
Under Article 20 of the Code of Civil Procedure, interest, fruits and costs claimed in addition to the principal claim are not included in the value of the subject matter of the dispute.
Since, under the wording of the Anti-Payment Backlog Act, a creditor becomes entitled to claim compensation for debt recovery costs from the debtor “from the date on which the right to interest is acquired” (Article 10 § 1 of the Anti-Payment Backlog Act), it became common practice to treat this claim as ancillary. This was supported by the structure under which the entitlement to claim that amount arises, as it is closely linked to the right to charge statutory interest for late payment in commercial transactions and to the requirement that the creditor have a due and payable monetary claim against the counterparty. Thus, although the claim was included as a separate category in the petitum of the statement of claim, it was not included in the value of the subject matter of the dispute.
Courts also adopted this view. For example, the District Court in Bartoszyce, in its order of 16 July 2020, case no. I Nc 46/20 (LEX), stated that
“compensation for debt recovery costs due to a creditor under Article 10 of the Act on Counteracting Excessive Delays in Commercial Transactions constitutes a <<cost>> within the meaning of Article 20 of the Code of Civil Procedure, as follows from the nature and function of that amount. It is undoubtedly ancillary and compensates the creditor, on a lump-sum basis, for the costs of pursuing the claim. For Article 20 of the Code of Civil Procedure to apply to that amount, it must be claimed <<in addition to>> the principal claim.”
Further in the reasons for that order, however, the court stated that the claim could acquire an independent procedural character, just like ancillary claims for interest, for example where it was capitalised and interest was charged on it before proceedings were commenced. Such claims then cease to be ancillary amounts and become principal amounts (capital), on which any further ancillary amount (interest) is claimed.
That position changed when the Supreme Court delivered its judgment of 12 May 2023 in case no. II CSKP 895/22. Although addressing the issue of limitation periods, the Supreme Court expressly held in its reasons that:
“[c]laims for compensation for debt recovery costs in the amount of EUR 40 are not ancillary, i.e. strictly linked to the sale agreements underlying the invoices. This compensation constitutes an independent claim derived directly from the Act of 8 March 2013, and not from the provisions governing the agreement between the counterparties.”
The Supreme Court’s adoption of that position, however, gave rise to a new issue that had not previously been analysed: how the claim for compensation should be reflected in the statement of claim.
Compensation and the value of the subject matter of the dispute
Accepting that a claim for payment of compensation is not ancillary made it necessary to consider whether, and if so how, this affects the correct determination of the value of the subject matter of the dispute, which is the basis for calculating the court fee on the statement of claim.
Previously, this part of the claim could be treated not only as an ancillary amount but also, according to some views, as forming part of the costs of the proceedings.
The Supreme Court resolved this issue only this year, in its resolution of 10 June 2026 in case no. III CZP 6/26, holding that the amount of the lump-sum compensation for debt recovery costs referred to in Article 10 § 1 (1)-(3) of the Anti-Payment Backlog Act, when claimed in addition to the principal claim arising from a commercial transaction, must be included in the value of the subject matter of the dispute.
Although the removal of interpretative uncertainty should generally be welcomed, the interpretation adopted by the Supreme Court is unfavourable from the perspective of businesses.
The need to include the compensation in the value of the subject matter of the dispute increases the court fee on the statement of claim, which must be paid by the claimant and may be recovered from the defendant only after the claimant has succeeded in the proceedings.
Article 10 § 1 of the Anti-Payment Backlog Act provides for three compensation bands depending on the amount in arrears: EUR 40, EUR 70 and EUR 100. Assuming that the average euro exchange rate in recent years has been approximately EUR 1 = PLN 4.30 (PLN 4.31 as at the date of this article), businesses will be required to add the following approximate amounts to the value of the subject matter of the dispute:
- PLN 172 (as the equivalent of EUR 40 when pursuing claims not exceeding PLN 5,000 – pursuant to Article 10 § 1(1) of the Anti-Payment Backlog Act);
- PLN 301 (as the equivalent of EUR 70 when pursuing claims with a value between PLN 5,000 and PLN 50,000 – pursuant to Article 10 § 1(2) of the Anti-Payment Backlog Act); or
- PLN 430 (as the equivalent of EUR 100 when pursuing claims exceeding PLN 50,000 – pursuant to Article 10 § 1(3) of the Anti-Payment Backlog Act).
Moreover, these amounts will be multiplied depending on the number of overdue payments covered by the statement of claim. Consequently, the calculation of the court fee on the statement of claim – whether a fixed or proportional fee within the meaning of Article 13 of the Act on Court Costs in Civil Cases – will be affected by the additional compensation included in the value of the subject matter of the dispute.
This may be particularly disadvantageous where the value of the subject matter of the dispute is at a threshold for the bands determining the fixed fee on the statement of claim (Article 13 § 1 of the Act on Court Costs in Civil Cases). In such a case, adding even the lowest amount of compensation to the value of the subject matter of the dispute may result in a higher court fee becoming payable.
These amounts, like the court fee on the statement of claim as a whole, will, if the claimant ultimately succeeds, be payable by the defendant and awarded to the business as reimbursement of the costs of the proceedings. The losing party will then be required to cover them, provided, of course, that it has sufficient funds. Overdue payments often indicate that a business is in a very poor financial condition or has no assets whatsoever.
The change brought about by the resolution will certainly affect how commonly claims for payment of compensation are included in statements of claim. Businesses’ actions in this area will become more demanding in terms of the precise calculation of costs, the assessment of the likelihood of success in the proceedings and the subsequent prospects of enforcing the amount awarded.
Adwokat
