Landmark CJEU ruling – is this the end of imposing long payment terms?

The CJEU sets boundaries in B2B relationships: payment terms exceeding 60 days must be genuinely agreed upon by both parties. This new ruling serves as a significant guideline for companies entering into tender agreements, adhesion contracts, or dealings with major contractors.

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In its latest judgment, the Court of Justice of the European Union (CJEU) emphasized that payment term regulations must protect creditors, especially in relationships where one party holds a stronger position. According to the interpretation of EU regulations, a payment term exceeding 60 days cannot be unilaterally imposed by the debtor, even if formally included in the contract.

Although the ruling was issued some time ago, its practical significance for entrepreneurs is becoming increasingly evident today, particularly when evaluating existing commercial contracts. The judgment strengthens the position of creditors and imposes significant limitations on market-dominant contractors who have abused their advantage in setting payment terms.

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Case background

The dispute involved two Polish companies: a mining company (P.), which entered into contracts through tender and auction procedures, and a supplier of mining equipment (A.). All contracts stipulated a 120-day payment term, unilaterally set by the ordering party.

The supplier (company A.) filed a lawsuit seeking interest for late payment and compensation for debt recovery costs, arguing that the imposed term did not meet the criteria of “express agreement” as mentioned in Article 3(5) of Directive 2011/7/EU.

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Preliminary question: Is a Unilateral clause in the contract sufficient?

The Polish national court asked the CJEU:

“Should Article 3(5) of Directive [2011/7] be interpreted to mean that an express agreement between businesses on a payment term exceeding 60 days can only pertain to contracts where the contractual terms are not solely determined by one party?”

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CJEU’s response: Agreement must be real and conscious

The Court unequivocally stated that:

A contractual clause providing for a payment term longer than 60 days cannot be unilaterally set by the debtor.

Exceptions are situations where:

• documents indicate a genuine, conscious agreement by both parties to be bound by such a provision,
• the clause is explicitly highlighted in the contract — it cannot be hidden or inferred from the context,
• it does not lead to gross unfairness towards the creditor.

The Court emphasized that mutual agreement does not have to result from individual negotiations but also cannot be merely the result of silent acceptance or a template imposed by the stronger party. In particular, an extended payment term must be highlighted and clearly indicated as an exception to the 60-day rule.

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Adhesion contracts in focus

The ruling is particularly significant for so-called adhesion contracts, where terms are imposed by one party, and the other can only accept or reject them. This is typical for tenders, contracts with large corporations, or public sector entities.

The CJEU clearly indicated that the mere form of an adhesion contract does not preclude the possibility of expressly agreeing to a term exceeding 60 days, but only when:

• the clause is clearly formulated,
• it constitutes a deviation from the standard, and
• it has been consciously accepted, not “incidentally”.

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Implications of the CJEU ruling for entrepreneurs

1. Unilateral contracts are insufficient

In practice, many companies – especially large market entities – impose contract templates with extended payment terms on contractors. The CJEU ruling clearly shows that such provisions will not be effective if they have not been genuinely and consciously agreed upon by both parties.

2. Possibility of pursuing claims

If the term exceeds 60 days and has not been expressly agreed upon, the creditor may:

• charge statutory interest for delay from the 61st day,
• seek compensation for debt recovery costs – in accordance with the Act on counteracting payment delays: 40, 70, or 100 EUR depending on the invoice value,
• challenge the extended payment term as non-compliant with EU regulations.

3. Review of existing contracts

Companies that have entered into unilateral contracts (without a real possibility of negotiation) should consider reanalysing them. If there is a risk that a 90 or 120-day term was imposed without the creditor’s consent, this may serve as a basis for renegotiation or legal dispute. In such cases, it is advisable to seek legal advice from getsix® to ensure that contract terms comply with current regulations and CJEU jurisprudence.

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How to safeguard your company’s interests?

To avoid legal and financial risks, it is advisable to:

• ensure transparency of contract terms, especially regarding payments,
• confirm acceptance of non-standard terms – preferably with a separate signature or in a distinct contract section,
• avoid templates that clearly violate the balance of parties – for example, by automatically imposing terms without justification.

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The CJEU ruling sets specific boundaries: 60 days is the standard, and any attempt to extend it must be:

• expressly agreed upon,
• consciously accepted,
• fair to the creditor.

This is crucial information for companies operating in the B2B sector, especially when collaborating with large entities or in tender procedures. Equality of parties in a contract is not just a principle – it is now a specific requirement arising from EU law.

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Legal basis:

• Act of 8 March 2013 on Counteracting Excessive Delays in Commercial Transactions
• Case C-677/22: Request for a preliminary ruling from the Sąd Rejonowy Katowice — Wschód w Katowicach (Poland) lodged on 2 November 2022 — Przedsiębiorstwo Produkcyjno-Handlowo-Usługowe A. v P. S.A.

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If you have any further questions or require additional information, please contact your business relationship person or use the enquiry form on the HLB Poland website.

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