Table of contents
The opening of the borders and liberalization of economic activities have led to rapid economic growth for thousands of companies in Poland. One of the dynamically developing business sectors is transportation, logistics, and freight forwarding. It operates not only on a national scale but also internationally. Many Polish drivers are involved in transporting goods to countries such as Germany, France, and Italy. As long as the parties to a contract settle their accounts fairly, there is no cause for concern. However, what should you do when a business partner refuses to pay an invoice?
You can ensure the security of your company from the very beginning. To minimize the risk of dealing with an unscrupulous counterparty, start with a preliminary verification of the company you plan to collaborate with. Also, ensure careful preparation of all documents.
Verification of the counterparty
For Polish entrepreneurs, verification is straightforward – you can find information in the National Court Register (KRS) and the Central Register and Information on Economic Activity (CEIDG), including the start date, suspension, and possible termination of business activity, among other details.
Pay particular attention to entries regarding the initiation of bankruptcy or restructuring proceedings. For companies, especially joint-stock companies, also focus on:
- Persons authorized to represent the company.
- Information about the submission of financial statements.
- The amount of share capital.
- Information on transformations, divisions, and mergers
In the case of foreign counterparts, you can rely on data available on relevant business activity portals specific to each country. These may include:
- Business Register (Unternehmensregister) in Germany.
- Danish Business Authority (Erhvervsstyrelsen) in Denmark.
- Republic of Latvia Enterprise Register (Latvijas Republikas Uznemumu registrs) in Latvia.
European resources include the European e-Justice Portal and the European Business Registry Association. Furthermore, VAT-registered counterparts can be traced through the VIES system, a European portal used to search for companies by their VAT number and related information.
An alternative to using publicly available registers is conducting commercial intelligence (‘OSINT’), which involves entirely legal activities to gather information about a company. This can include data from websites, information collected from social media platforms (increasingly used in business), and interviews with employees.
Remember that commercial intelligence is not the same as industrial espionage. Its use does not violate the principles of fair competition.
Properly constructed documents can serve as a means to secure one’s due amount, without the need to involve in the debt collection process. What should you remember?
When drafting a contract, ensure the precise specification of the parties’ rights and obligations, the contract’s subject matter, and the deadlines that the contracting parties should adhere to. Also, apply protective mechanisms tailored to the specific situation, such as contractual penalties, deposits, or bank guarantees.
Waybill (consignment note)
A waybill (consignment note) plays a particularly crucial role in transport law. It is a commercial document issued when handing over the cargo to the carrier. It confirms the conclusion of a carriage contract while authorizing the cargo recipient to manage it and claim any due amounts.
The waybill also helps determine the contract’s subject matter (quantity and weight of transported goods). This document can also contain other information, such as the delivery time or the conditions under which it should be carried out, especially concerning sensitive goods like food, medicines, or chemical materials.
A properly completed waybill is essential because the absence or incorrect completion of it can be interpreted under the CMR Convention as:
- The goods or their packaging being in good condition at the time of handover to the carrier.
- The quantity, characteristics, and parameters matching the data disclosed in the waybill.
While the absence or incorrect completion of the waybill does not nullify the possibility of pursuing claims, it does make it more challenging to prove errors on the part of the sender, carrier, or recipient.
Finally, the seller should ensure that the invoice contains correct information and details to identify the parties and other elements like those obliging the application of the split-payment mechanism if applicable. It is worth noting that invoices may look slightly different in each country.
If you need assistance managing the documents necessary for transportation, seek help from lawyers experienced in analyzing, reviewing, and drafting business documents.
If difficulties in recovering due amounts persist despite taking due diligence before entering into a contract, you should start with out-of-court actions.
The advantages of “soft” debt collection methods primarily include time and cost savings, avoiding the need to await a court judgment and the involvement of a bailiff. Experience has shown that many misunderstandings can be resolved without engaging in disputes. Good negotiation practices involve initially determining why the counterparty has not paid the invoice.
Often, late payments may not result from a deliberate act aimed at exploiting the other party’s honesty. They may arise from temporary financial difficulties, customer loss, or human error.
Amicable debt collection methods
A formal demand for payment is the fundamental action that should prompt the debtor to make payment. A well-constructed demand for payment should include:
- The date and place of drafting the letter.
- Identification of the parties to the contract.
- The basis of the demand (e.g., an invoice).
- The amount of the debt along with interest.
- A deadline for payment (e.g., 14 or 21 days).
- Indication of actions that will be taken if the debtor does not comply with the demand.
The demand for payment should be signed and sent to the debtor in a way that allows you to monitor the correspondence’s progress, especially the date of receipt (e.g., by registered mail or with a return receipt). Attaching a copy of the document from which the creditor derives their claim to the demand is also good practice. This eliminates doubts about the identification of the legal relationship.
Another method of “soft” debt collection is to include the debtor’s company in the debtor registry managed by the Economic Information Bureau. Such an entry effectively hinders the debtor from seeking most forms of external business financing (e.g., leasing or credit). Most institutions verify this registry before providing support.
In Poland, several different debtor registries are in operation:
- National Economic Information Bureau (Krajowe Biuro Informacji Gospodarczej).
- ERIF Economic Information Bureau (ERIF Biuro Informacji Gospodarczej).
- National Debt Register BIG (Krajowy Rejestr Długów BIG).
- BIG InfoMonitor.
Using the services of a debtor registry requires signing an agreement and reporting the entity behind on payments. A business’s debt must be no less than PLN 500, and the entry must be preceded by a warning about the intention to report the debtor to the registry.
When out-of-court actions fail to yield results, the only way to effectively collect the debt is to take legal action.
Filing a lawsuit
The court’s jurisdiction in the case of transportation disputes will vary depending on whether it is a domestic, EU, or international transport.
In the case of domestic transport, a lawsuit can be filed using general jurisdiction (the court of the debtor’s registered office will be competent). In many cases, referring to alternative jurisdiction for contractual relationships is more convenient, according to Article 34 of the Code of Civil Procedure. In this situation, the creditor can choose between a general court and a court competent for the place of contract performance. Therefore, it is essential to specify the location connected with the contract’s implementation in the contract.
The parties can also include a jurisdiction clause in the contract and specify the local jurisdiction of the court.
The substantive jurisdiction is determined by Article 16 and Article 17(4) of the Code of Civil Procedure, which links the court of first instance to the value of the dispute:
- For claims up to PLN 100,000, district courts are competent.
- For claims exceeding this amount, regional courts have jurisdiction.
This has significant implications during the appellate stage because, depending on the procedural configuration, the appeal can be filed with a regional or appellate court.
An exception to the priority of the jurisdiction clause is filing a lawsuit in electronic writ-of-payment proceedings. Only the XVI Civil Division of the Lublin-West District Court in Lublin is competent in this situation.
Suppose the dispute concerns a claim from third-party liability insurance (e.g., due to an accident involving a transport vehicle). In that case, the court’s jurisdiction will be determined using Article 20(1) of the Mandatory Insurance Act. According to this provision, an action can be brought:
- According to general jurisdiction rules.
- Before a court competent for the place of residence or registered office of the injured party or the beneficiary under the insurance contract.
Determining the court’s jurisdiction in international transport primarily requires referring to the CMR Convention. Article 31 of the Convention states that disputes arising from transports subject to the CMR Convention can be settled by the courts of contracting countries designated by the parties through a mutual agreement. Additionally, they can be settled by the courts of the country where:
- The defendant has a permanent residence, principal place of business, branch, or agency through which the carriage contract was concluded.
- The place of taking over the goods for carriage or the place of delivery is located, and the claimant cannot file the case in other courts.
Thus, the plaintiff can choose national jurisdiction, even utilizing several available options. Parties cannot include provisions in the contract that contradict the content of the CMR Convention. The choice of national jurisdiction will be determined based on the procedural rules of the respective country.
Transport disputes within the European Union
Suppose a dispute arises between contracting parties with their registered offices in the European Union. In that case, Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) is relevant in determining the competent court.
According to Rome I, if the parties do not establish the applicable law for the carriage of goods, the dispute will be decided according to the law of the country “where the carrier has his habitual residence, provided that that place is also the place of the principal establishment of the carrier or, if there is no such place, the carrier’s place of habitual residence.” Otherwise, the law of the country where the parties have agreed on the place of delivery will apply.
It’s important to emphasize that Regulation Rome I specifies the applicable law for resolving disputes but does not affect courts’ substantive and territorial jurisdiction. Judgments rendered by courts in EU member states have equal validity and are enforceable in other member states. This means that a judgment issued by a Spanish court can also be enforced in Poland. However, involvement in international litigation necessitates knowledge of foreign law.
Electronic writ-of-payment proceedings
Electronic Writ-Of-Payment Proceedings (EPU) offer a cheaper and simpler alternative to traditional court proceedings. The prepared lawsuit, along with scanned attachments, is filed in an e-court. If the case does not enter regular proceedings, you can avoid:
- The need to prepare documentation in multiple copies.
- The standard court fee for filing a lawsuit (in EPU, it is 1.25% of the value of the dispute, but not less than PLN 30).
- The obligation to appear at the hearing.
All notifications regarding changes in the case’s status are received electronically by the plaintiff.
Filing an objection by the defendant results in the dismissal of the payment order and the referral of the case to regular court proceedings. At this stage, the defendant receives the lawsuit and its attachments for the first time and can present a substantive defense against the plaintiff’s claims.
However, it’s essential to note that according to the provisions of transport law, referring the case to judicial proceedings is only possible after exhausting the complaint process or sending a demand for payment. The debtor has three months to pay, calculated from receiving the complaint or demand for payment.
European payment order
The European Payment Order can be used in civil or commercial cases of a cross-border nature, where at least one of the parties has their residence or registered office in a different EU member state than the court handling the case.
European Payment Orders are issued by courts in all EU countries (except Denmark), but the conditions for obtaining them may vary in individual member states (e.g., in terms of fees or required documents). It’s important to remember that the contract’s content influences the determination of court jurisdiction, not just EU regulations.
If the court of a specific member state does not find formal deficiencies in the lawsuit, it issues a payment order and serves it on the debtor. The debtor can file an objection within 30 days of receiving the judgment. In such a case, the matter will proceed to be heard by the court that issued the payment order.
Statutes of limitations
Creditors should pay particular attention to the statutes of limitations, which are exceptionally short in the case of transport services:
- According to Article 32 of the CMR Convention, the limitation period is 12 months (or 3 years if the court determines gross negligence or bad faith by the counterparty).
- Under transport law, claims become time-barred after 1 year, or in the case of loss or damage to the shipment, within 2 months. The limitation period for claims between carriers is 6 months.
Regardless of the chosen regime – domestic or international – the statutes of limitations do not extend! Only in exceptional situations do regulations allow for the suspension of the statute of limitations (e.g., armed conflict). Overlooking the expiration of the limitation period will hinder successful debt recovery.
Enforcement of awarded claims
Obtaining a final judgment does not automatically mean the recovery of debts. Comprehensive legal assistance should also extend to actions before the enforcement authority. In Poland, these bailiffs operate at district courts, but debt recovery processes will vary in each EU member state.
Differences may include:
- The amount of fees to be paid.
- Types and structure of enforcement applications.
- The requirement for legal representation by an attorney.
If the debtor does not voluntarily fulfill the court’s judgment, engaging in debt collection proceedings will be necessary before the bailiff. If your counterparty delays payment or does not respond to payment demands, do not hesitate! Delaying actions aimed at debt recovery reduces your chances of success.