Court lets judges throw out abusive EUR 40 late-payment claims

Creditors owed the EUR 40 fixed compensation for late payment in commercial transactions can be refused it where claiming it abuses EU law, the Court of Justice (Third Chamber) held on 1 October 2026 in Case C-209/25EuropaEuropa. The ruling answers the District Court for the City of Warsaw, which doubted whether a creditor pursuing hundreds of stale EUR 40 claims, years after the business relationship ended, could still invoke Article 6(1) of Directive 2011/7/EU.

The dispute concerned a Polish food invoice of PLN 4 874.60 due on 3 September 2020 and paid five days later, on 8 September 2020. Supplier Premium Food Kebab sp. z o.o. sued its customer Cydonia sp. z o.o. in May 2023 for the EUR 40 fixed sum alone, without claiming default interest. The two companies had traded several times a week for four years, with occasional late payments the supplier had never pursued; after all of Premium Food Kebab's shares passed to a new owner, it filed hundreds of identical EUR 40 claims against Cydonia. The referring court considered the claim unfair and contrary to the directive's objectives, and asked whether it could dismiss it.

The Court answered that Article 6(1) does not preclude a national court from dismissing a fixed-sum claim where the creditor, by its conduct, breaches the general EU law principle that EU law cannot be relied on for abusive or fraudulent endsEuropa, even absent a national provision authorising refusal. Abuse, however, has a strict test. Proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those laws has not been achievedEuropa and, secondly, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it.

On the facts, the Court gave the referring court firm guardrails. Recognising the EUR 40 sum in favour of the creditor serves the directive's aims, deterring late payment and compensating the creditor's own recovery costs, so the mere exercise of the Article 6(1) right cannot count as artificially creating the conditions for itEuropa. Nor can a creditor be required to claim default interest alongside the fixed sumEuropa: the directive expressly allows claiming the sum on its ownEuropa. And no provision of the directive subjects the right to a specific time limitEuropa; limitation is a matter for national procedural rules, subject to the principles of equivalence and effectivenessEuropa.

Crucially, none of the features troubling the Warsaw court, the negligible five-day delay, the hundreds of parallel claims, the long-ended business relationship, or the supplier's takeover by a financially unsound company, is in itself enough to establish abuseEuropa. The Court also reaffirmed that the EUR 40 is due for each late payment whatever the amount concerned or the length of the delayEuropa, so a trivial delay neither exempts the debtor nor reduces the sumEuropa.

Before reaching abuse at all, the national court must first verify that the entitlement existsEuropa: whether the 8 September 2020 payment was truly late payment within Article 2(4), given the supplier's tolerance of late payment, and whether the supplier waived the right, a waiver compatible with the directive if freely agreed (IOS Finance, C-555/14)Europa.

Legal basis: Article 6(1) of Directive 2011/7/EU of 16 February 2011 on combating late payment in commercial transactions.