Court of Justice of the European Communities (including Court of First Instance Decisions)

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JUDGMENT OF THE COURT (Ninth Chamber)

12 December 2024 (*)

( Reference for a preliminary ruling - Directive 2011/7/EU - Combating late payment in commercial transactions - Transactions between undertakings - Commercial lease agreement - Point 8 of Article 2 - Concept of ‘amount due’ - Re-invoicing of rental charges and costs associated with the rent )

In Case C‑725/23 [Tusnia], (i)

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy Katowice – Wschód w Katowicach (District Court, Katowice-East, Katowice, Poland), made by decision of 9 October 2023, received at the Court on 27 November 2023, in the proceedings

M. sp. z o.o. I. S.K.A.

v

R.W.,

THE COURT (Ninth Chamber),

composed of N. Jääskinen (Rapporteur), President of the Chamber, M. Condinanzi and R. Frendo, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        M. sp. z o.o. I. S.K.A., by A. Kuleszyńska, radca prawny,

–        the Polish Government, by B. Majczyna, acting as Agent,

–        the European Commission, by M. Ioan, D. Milanowska and M. Owsiany-Hornung, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of point 8 of Article 2 of Directive 2011/7/EU 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).

2        The request has been made in proceedings between M. sp. z o.o. I. S.K.A. (‘M.’) and R.W. concerning the recovery by M. of invoices relating to costs associated with the occupation of a commercial property which were borne by M. but which had been contractually charged to R.W.

 The legal framework

3        Recitals 3, 8, 9 and 19 of Directive 2011/7 state:

‘(3)      Many payments in commercial transactions between economic operators or between economic operators and public authorities are made later than agreed in the contract or laid down in the general commercial conditions. Although the goods are delivered or the services performed, many corresponding invoices are paid well after the deadline. Such late payment negatively affects liquidity and complicates the financial management of undertakings. It also affects their competitiveness and profitability when the creditor needs to obtain external financing because of late payment. The risk of such negative effects strongly increases in periods of economic downturn when access to financing is more difficult.

…

(8)      The scope of this Directive should be limited to payments made as remuneration for commercial transactions. …

(9)      This Directive should regulate all commercial transactions irrespective of whether they are carried out between private or public undertakings or between undertakings and public authorities …

…

(19)      Fair compensation of creditors for the recovery costs incurred due to late payment is necessary to discourage late payment. Recovery costs should also include the recovery of administrative costs and compensation for internal costs incurred due to late payment for which this Directive should determine a fixed minimum sum which may be cumulated with interest for late payment. Compensation in the form of a fixed sum should aim at limiting the administrative and internal costs linked to the recovery. Compensation for the recovery costs should be determined without prejudice to national provisions according to which a national court may award compensation to the creditor for any additional damage regarding the debtor’s late payment.’

4        Article 1(1) and (2) of that directive provides:

‘(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].

(2)      This Directive shall apply to all payments made as remuneration for commercial transactions.’

5        Article 2 of that directive is worded as follows:

‘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;

…

(8)      “amount due” means the principal sum which should have been paid within the contractual or statutory period of payment, including the applicable taxes, duties, levies or charges specified in the invoice or the equivalent request for payment;

…’

6        Under Article 3(1) of that directive:

‘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.’

7        Article 6(1) of Directive 2011/7 provides:

‘Member States shall ensure that, where interest for late payment becomes payable in commercial transactions in accordance with Article 3 or 4, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40.’

 The dispute in the main proceedings and the question referred for a preliminary ruling

8        On 3 July 2019, the parties to the main proceedings entered into a lease agreement for business premises in Poland for an indefinite period. Under the terms of that agreement, R.W. was obliged to pay M.:

–        rent plus value added tax;

–        charges for utilities (heating, gas, electricity, and so forth) and other charges incurred by the landlord in connection with the provision of those services; and

–        a flat-rate monthly amount corresponding to a contribution towards the charges, expenses and costs associated with the property, in particular the building’s common charges and municipal taxes.

9        On 13 September 2019, the agreement was the subject of an amendment extending its scope to another business premises.

10      By letter dated 28 May 2020, M. notified R.W. of the termination of the lease agreement with immediate effect.

11      Before the Sąd Rejonowy Katowice-Wschód w Katowicach (District Court, Katowice-East, Katowice), which is the referring court, M. claimed from R.W. the payment of 26 unpaid invoices, including 8 relating to rent, 11 relating to utilities and 7 relating to the lump sum due for the tenant’s contribution to all charges, expenses and costs connected with the property, as well as a lump sum of EUR 40 for each invoice not paid by the due date.

12      The referring court points out that it is apparent from Article 1(2) of Directive 2011/7, read in the light of recital 8 thereof, that the scope of that directive is limited to payments made ‘as remuneration for commercial transactions’, but that the very concept of ‘remuneration’ is not defined in that directive.

13      Nevertheless, according to that court, if it were to be held that the scope of Directive 2011/7 extends only to payments made ‘as remuneration for commercial transactions’, it must be inferred that the concept of ‘amount due’, within the meaning of point 8 of Article 2 thereof, refers only to the amount intended to remunerate the creditor’s own performance, namely the supply of goods or the provision of a service, and would not include payments made for other purposes, such as reimbursements of expenses or other costs incurred by the creditor in the performance of the contract, where those are separate under the contract.

14      The referring court points out, however, that it follows from such an interpretation that, where the contract requires the debtor to reimburse, for the benefit of the creditor, such expenses or costs, late payment, which results in the creditor having to bear, at least temporarily, those costs in place of the debtor, may have a negative effect on that creditor’s financial situation, That would be contrary to the objective of Directive 2011/7, namely to combat that type of situation, which is detrimental to the competitiveness and profitability of undertakings in the internal market.

15      In those circumstances, the Sąd Rejonowy Katowice – Wschód w Katowicach (District Court, Katowice-East, Katowice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must [point 8 of Article 2] of [Directive 2011/7] be interpreted as including within its scope, in addition to the principal sum for the performance characteristic of the contractual relationship in question leading to the supply of goods or the provision of a service, also the reimbursement of costs incurred in connection with the performance of the contract, which the debtor has contractually agreed to pay?’

 The question referred for a preliminary ruling

16      As a preliminary point, it should be recalled that, under Article 1(2) of Directive 2011/7, that directive applies to all payments made as remuneration for ‘commercial transactions’ and that that concept is defined 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’. The latter provision must be read in the light of recitals 8 and 9 of that directive, from which it follows that it covers all payments made as remuneration for commercial transactions, including those between private undertakings, to the exclusion of transactions with consumers and other types of payment (judgment of 13 January 2022, New Media Development & Hotel Services, C‑327/20, EU:C:2022:23, paragraph 31 and the case-law cited).

17      The Court has already held that Article 2(1) of Directive 2011/7 must be interpreted as meaning that a contract the main obligation of which consists in the handing over, for consideration, of immovable property for temporary use, such as a contract for the letting of business premises, constitutes a commercial transaction leading to the provision of services within the meaning of that provision, provided that that transaction is carried out between undertakings or between undertakings and public authorities (judgment of 9 July 2020, RL (Directive combating late payment), C‑199/19, EU:C:2020:548, paragraph 41).

18      In the present case, it is apparent from the request for a preliminary ruling that M. and R.W. are undertakings and that they acted in the course of their business. Therefore, subject to verification by the referring court, the lease agreement at issue in the main proceedings constitutes a commercial transaction within the meaning of Directive 2011/7 and, accordingly, the payments made as remuneration for that transaction fall within the scope of that directive.

19      By its question, the referring court seeks, in essence, to ascertain whether point 8 of Article 2 of Directive 2011/7 must be interpreted as meaning that the concept of ‘amount due’ referred to therein covers, in addition to the amount which the debtor is required to pay in return for the main service provided to him or her by the creditor in performance of the contract concluded between them, the sums which the debtor has undertaken, under that contract, to reimburse to the creditor in respect of the costs incurred by the latter and connected with the performance of that contract.

20      In order to determine the scope of a provision of EU law, its wording, context and objectives must all be taken into account (judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 25 and the case-law cited).

21      Point 8 of Article 2 of Directive 2011/7 defines the concept of ‘amount due’ as ‘the principal sum which should have been paid within the contractual or statutory period of payment, including the applicable taxes, duties, levies or charges specified in the invoice or the equivalent request for payment’.

22      As regards the literal interpretation of that provision, it should be noted that the terms used by the EU legislature give the concept of ‘amount due’ a broad scope.

23      First, the EU legislature’s use of the expression ‘including’ indicates that it thus intended to draw up a non-exhaustive list of several items which might fall within the concept of ‘amount due’. Secondly, the fact that that list includes, inter alia, the ‘applicable taxes, duties, levies or charges’ tends to show that the EU legislature also intended to cover amounts which are distinct from the principal amount paid in consideration for the service which is a feature of the contractual relationship, but which are nonetheless linked to that service and which the debtor has undertaken to repay.

24      It follows from a literal interpretation of the concept of ‘amount due’ in point 8 of Article 2 of Directive 2011/7 that it cannot be limited to the amount paid as consideration for the main service in the contractual relationship.

25      That interpretation is supported by the context of that provision and by the objective of Directive 2011/7.

26      As regards, first, that context, Article 1(2) of that directive provides that it applies to all payments made as remuneration for commercial transactions, without distinguishing between those intended to remunerate the main performance of the contract and those intended for other purposes, such as payments intended to reimburse the costs incurred by the creditor in performing the contract.

27      Secondly, as regards the purpose of Directive 2011/7, it should be remembered that, under Article 1(1) thereof, the aim of that 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 small and medium-sized undertakings.

28      It is apparent from recital 3 of that directive that the EU legislature took account of the fact that such late payments have adverse effects on the liquidity of those undertakings, complicate their financial management and also affect their competitiveness and their profitability, when they need to obtain external financing because of those late payment (see, to that effect, judgment of 20 October 2022, BFF Finance Iberia, C‑585/20, EU:C:2022:806, paragraph 35).

29      It thus follows from Article 1(1) of Directive 2011/7, read in the light of recital 3 thereof, that the directive aims not only to discourage late payment, by preventing it from being financially attractive to the debtor because of the low level or absence of interest charged in such a situation, but also to protect the creditor effectively against such late payment, by ensuring that he or she is compensated as fully as possible for the recovery costs he or she has incurred. In that respect, recital 19 of that directive states that recovery costs should also include the recovery of administrative costs and compensation for internal costs incurred due to late payment and that compensation in the form of a fixed sum should aim at limiting the administrative and internal costs linked to the recovery (judgments of 20 October 2022, BFF Finance Iberia, C‑585/20, EU:C:2022:806, paragraph 36 and the case-law cited; of 1 December 2022, DOMUS-Software, C‑370/21, EU:C:2022:947, paragraph 27; and of 1 December 2022, X (Deliveries of medical products), C‑419/21, EU:C:2022:948, paragraph 36).

30      From that point of view, to interpret the concept of ‘amount due’ in point 8 of Article 2 of Directive 2011/7 as referring only to the amount intended to remunerate the main performance of the contract would be tantamount to unduly limiting the scope of that directive and exposing the creditor to the harmful consequences of late payments in respect of the other amounts payable by the debtor under the same contract. Such an interpretation would run counter to the objective of discouraging debtors from making late payments, as set out in Article 1(1) of Directive 2011/7, read in the light of recital 19 thereof.

31      In the light of the foregoing, the answer to the question referred is that point 8 of Article 2 of Directive 2011/7 must be interpreted as meaning that the concept of ‘amount due’ referred to therein covers, in addition to the amount which the debtor is required to pay in return for the main service provided to him or her by the creditor in performance of the contract concluded between them, sums which the debtor has undertaken, under that contract, to reimburse to the creditor in respect of costs incurred by the latter and connected with the performance of that contract.

 Costs

32      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

Point 8 of Article 2 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 concept of ‘amount due’ referred to therein covers, in addition to the amount which the debtor is required to pay in return for the main service provided to him or her by the creditor in performance of the contract concluded between them, sums which the debtor has undertaken, under that contract, to reimburse to the creditor in respect of costs incurred by the latter and connected with the performance of that contract.

[Signatures]

*      Language of the case: Polish.

i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

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