# 62018CO0131

ORDER OF THE COURT (Tenth Chamber)

11 April 2019 (
  *1
  )

*1

(Reference for a preliminary ruling — Law on undertakings — Combating late payment in commercial transactions — Directive 2011/7/EU — Article 6 — Compensation for recovery costs — Payment of a fixed sum and of reasonable compensation — Deduction of fixed sum from the costs of instructing a lawyer prior to bringing proceedings before a court)

In Case C‐131/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 18 January 2018, received at the Court on 19 February 2018, in the proceedings

Vanessa Gambietz

Vanessa Gambietz

v

Erika Ziegler,

Erika Ziegler,

THE COURT (Tenth Chamber),

composed of C. Lycourgos (Rapporteur), President of the Chamber, E. Juhász and M. Ilešič, Judges,

Advocate General: G. Hogan,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

Order

| 1 | This request for a preliminary ruling concerns the interpretation of Article 6(3) 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). |
| --- | --- |

1

This request for a preliminary ruling concerns the interpretation of Article 6(3) 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 | This request has been made in the course of proceedings between Ms Vanessa Gambietz and Ms Erika Ziegler relating to the recovery of a debt owed to the former by the latter. |
| --- | --- |

2

This request has been made in the course of proceedings between Ms Vanessa Gambietz and Ms Erika Ziegler relating to the recovery of a debt owed to the former by the latter.

Legal context

Legal context

| 3 | Recitals 19 and 20 of Directive 2011/7 state:





  ‘(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. |
| --- | --- | --- |

3

Recitals 19 and 20 of Directive 2011/7 state:

‘(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.

| (20) | In addition to an entitlement to payment of a fixed sum to cover internal recovery costs, creditors should also be entitled to reimbursement of the other recovery costs they incur as a result of late payment by a debtor. Such costs should include, in particular, those incurred by creditors in instructing a lawyer or employing a debt collection agency.’ |
| --- | --- |

(20)

In addition to an entitlement to payment of a fixed sum to cover internal recovery costs, creditors should also be entitled to reimbursement of the other recovery costs they incur as a result of late payment by a debtor. Such costs should include, in particular, those incurred by creditors in instructing a lawyer or employing a debt collection agency.’

| 4 | Article 6 of the same directive, entitled ‘Compensation for recovery costs’, provides:
  ‘1.   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.
  2.   Member States shall ensure that the fixed sum referred to in paragraph 1 is payable without the necessity of a reminder and as compensation for the creditor’s own recovery costs.
  3.   The creditor shall, in addition to the fixed sum referred to in paragraph 1, be entitled to obtain reasonable compensation from the debtor for any recovery costs exceeding that fixed sum and incurred due to the debtor’s late payment. This could include expenses incurred, inter alia, in instructing a lawyer or employing a debt collection agency.’ |
| --- | --- |

4

Article 6 of the same directive, entitled ‘Compensation for recovery costs’, provides:

‘1.   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.

2.   Member States shall ensure that the fixed sum referred to in paragraph 1 is payable without the necessity of a reminder and as compensation for the creditor’s own recovery costs.

3.   The creditor shall, in addition to the fixed sum referred to in paragraph 1, be entitled to obtain reasonable compensation from the debtor for any recovery costs exceeding that fixed sum and incurred due to the debtor’s late payment. This could include expenses incurred, inter alia, in instructing a lawyer or employing a debt collection agency.’

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

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

| 5 | Ms Gambietz sought an order against her debtor, Ms Ziegler, for payment of the principal debt plus interest, together with an additional sum of EUR 112 representing, first, the fixed sum of EUR 40, provided for in the first sentence of Paragraph 288(5) of the Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’), and, secondly, legal fees of EUR 72. |
| --- | --- |

5

Ms Gambietz sought an order against her debtor, Ms Ziegler, for payment of the principal debt plus interest, together with an additional sum of EUR 112 representing, first, the fixed sum of EUR 40, provided for in the first sentence of Paragraph 288(5) of the Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’), and, secondly, legal fees of EUR 72.

| 6 | The Amtsgericht Eilenburg (Local Court, Eilenburg, Germany) granted her application, except in so far as it related to the fixed sum of EUR 40. The applicant in the main proceedings then appealed to the Landgericht Leipzig (Regional Court, Leipzig, Germany) against the judgment. The Regional Court, Leipzig, dismissed her action, holding that, pursuant to the third sentence of Paragraph 288(5) of the BGB, the fixed sum had to be set against the costs incurred in connection with the pre-litigation instruction of a lawyer. |
| --- | --- |

6

The Amtsgericht Eilenburg (Local Court, Eilenburg, Germany) granted her application, except in so far as it related to the fixed sum of EUR 40. The applicant in the main proceedings then appealed to the Landgericht Leipzig (Regional Court, Leipzig, Germany) against the judgment. The Regional Court, Leipzig, dismissed her action, holding that, pursuant to the third sentence of Paragraph 288(5) of the BGB, the fixed sum had to be set against the costs incurred in connection with the pre-litigation instruction of a lawyer.

| 7 | The applicant in the main proceedings then brought an appeal on a point of law to the referring court against that decision. |
| --- | --- |

7

The applicant in the main proceedings then brought an appeal on a point of law to the referring court against that decision.

| 8 | In the first place, the referring court takes the view that the fixed sum of EUR 40 to which the applicant is entitled under the first sentence of Paragraph 288(5) of the BGB must, according to the third sentence of Paragraph 288(5) of the BGB, be set against the fees of EUR 72 incurred by the applicant in instructing a lawyer at the pre-litigation stage in order to protect her rights. |
| --- | --- |

8

In the first place, the referring court takes the view that the fixed sum of EUR 40 to which the applicant is entitled under the first sentence of Paragraph 288(5) of the BGB must, according to the third sentence of Paragraph 288(5) of the BGB, be set against the fees of EUR 72 incurred by the applicant in instructing a lawyer at the pre-litigation stage in order to protect her rights.

| 9 | In the second place, the referring court nonetheless wonders whether that interpretation of Paragraph 288 of the BGB is compatible with Article 6(3) of Directive 2011/7. |
| --- | --- |

9

In the second place, the referring court nonetheless wonders whether that interpretation of Paragraph 288 of the BGB is compatible with Article 6(3) of Directive 2011/7.

| 10 | In that regard, the referring court is inclined to the view that Article 6(3) of Directive 2011/7 also provides for the offsetting of the fixed sum. However, it observes that recitals 19 and 20 of Directive 2011/7 could be interpreted in the opposite way. Equally, should the fixed sum be set against the legal fees incurred in order to recover the debt, this could lead to the fixed sum being largely, or wholly, absorbed, leaving the creditor ultimately able to claim only a sum equivalent to the costs incurred in the pre-litigation instruction of a lawyer. |
| --- | --- |

10

In that regard, the referring court is inclined to the view that Article 6(3) of Directive 2011/7 also provides for the offsetting of the fixed sum. However, it observes that recitals 19 and 20 of Directive 2011/7 could be interpreted in the opposite way. Equally, should the fixed sum be set against the legal fees incurred in order to recover the debt, this could lead to the fixed sum being largely, or wholly, absorbed, leaving the creditor ultimately able to claim only a sum equivalent to the costs incurred in the pre-litigation instruction of a lawyer.

| 11 | It is in these circumstances that the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:
  ‘Is Article 6(3) of [Directive 2011/7] to be interpreted as meaning that the fixed sum of EUR 40 referred to in Article 6(1) of that directive is to be offset against external legal costs which have been incurred in connection with the pre-litigation instruction of a lawyer following late payment on the part of the debtor and are therefore reimbursable under Article 6(3) of that directive?’ |
| --- | --- |

11

It is in these circumstances that the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 6(3) of [Directive 2011/7] to be interpreted as meaning that the fixed sum of EUR 40 referred to in Article 6(1) of that directive is to be offset against external legal costs which have been incurred in connection with the pre-litigation instruction of a lawyer following late payment on the part of the debtor and are therefore reimbursable under Article 6(3) of that directive?’

The question referred

The question referred

| 12 | By its question, the referring court is asking, in essence, whether Article 6(3) of Directive 2011/7 must be interpreted to mean that the fixed sum of EUR 40, to which the creditor is entitled pursuant to Article 6(1) of that directive, must be deducted from the reasonable compensation provided for in Article 6(3) thereof. |
| --- | --- |

12

By its question, the referring court is asking, in essence, whether Article 6(3) of Directive 2011/7 must be interpreted to mean that the fixed sum of EUR 40, to which the creditor is entitled pursuant to Article 6(1) of that directive, must be deducted from the reasonable compensation provided for in Article 6(3) thereof.

| 13 | Under Article 99 of the Rules of Procedure, where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the reply to such a question may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order. |
| --- | --- |

13

Under Article 99 of the Rules of Procedure, where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the reply to such a question may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

| 14 | It is appropriate to apply that provision in the present reference for a preliminary ruling. |
| --- | --- |

14

It is appropriate to apply that provision in the present reference for a preliminary ruling.

| 15 | Article 6 of Directive 2011/7 is intended to ensure that the creditor is compensated for recovery costs incurred when interest for late payment becomes payable under that directive. Paragraph 1 of that article provides for the payment to the creditor of a fixed sum of EUR 40. Under paragraph 3 of the article, the creditor is also entitled to reasonable compensation for any recovery costs exceeding that fixed sum. |
| --- | --- |

15

Article 6 of Directive 2011/7 is intended to ensure that the creditor is compensated for recovery costs incurred when interest for late payment becomes payable under that directive. Paragraph 1 of that article provides for the payment to the creditor of a fixed sum of EUR 40. Under paragraph 3 of the article, the creditor is also entitled to reasonable compensation for any recovery costs exceeding that fixed sum.

| 16 | It therefore follows from the very wording of Article 6(3) of Directive 2011/7 that the reasonable compensation under that provision relates to any recovery costs that are not reimbursed by the fixed sum to which the creditor is entitled under Article 6(1) of the same directive. |
| --- | --- |

16

It therefore follows from the very wording of Article 6(3) of Directive 2011/7 that the reasonable compensation under that provision relates to any recovery costs that are not reimbursed by the fixed sum to which the creditor is entitled under Article 6(1) of the same directive.

| 17 | Furthermore, the Court stated, in paragraphs 22 to 24 of its judgment of 13 September 2018, Česká pojišťovna (C‐287/17, EU:C:2018:707), that, by employing the expression ‘exceeding that fixed sum’ in Article 6(3) of Directive 2011/7, the EU legislature sought to emphasise that recovery costs which exceed the sum of EUR 40, whatever they may be, may thus be the subject of reasonable compensation. |
| --- | --- |

17

Furthermore, the Court stated, in paragraphs 22 to 24 of its judgment of 13 September 2018, Česká pojišťovna (C‐287/17, EU:C:2018:707), that, by employing the expression ‘exceeding that fixed sum’ in Article 6(3) of Directive 2011/7, the EU legislature sought to emphasise that recovery costs which exceed the sum of EUR 40, whatever they may be, may thus be the subject of reasonable compensation.

| 18 | It is therefore clear from the wording of the provision in question that the reasonable compensation for which it provides applies to all costs, of whatever nature, which are not already compensated for by the fixed sum of EUR 40 awarded under Article 6(1) of Directive 2011/7. |
| --- | --- |

18

It is therefore clear from the wording of the provision in question that the reasonable compensation for which it provides applies to all costs, of whatever nature, which are not already compensated for by the fixed sum of EUR 40 awarded under Article 6(1) of Directive 2011/7.

| 19 | Such an interpretation is borne out by the objectives pursued by Directive 2011/7. |
| --- | --- |

19

Such an interpretation is borne out by the objectives pursued by Directive 2011/7.

| 20 | Directive 2011/7 is intended to combat late payment in commercial transactions, that delay constituting, according to recital 12 of that directive, a breach of contract which has been made financially attractive to debtors because, inter alia, low or no interest is charged on late payments (judgments of 16 February 2017, IOS Finance EFC, C‐555/14, EU:C:2017:121, paragraph 24, and of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 25). |
| --- | --- |

20

Directive 2011/7 is intended to combat late payment in commercial transactions, that delay constituting, according to recital 12 of that directive, a breach of contract which has been made financially attractive to debtors because, inter alia, low or no interest is charged on late payments (judgments of 16 February 2017, IOS Finance EFC, C‐555/14, EU:C:2017:121, paragraph 24, and of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 25).

| 21 | It follows that the objective of that directive is to provide effective protection for creditors against late payment. Such protection means offering those creditors the fullest possible compensation for the recovery costs incurred, in such a way as to discourage such late payment (judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 26). |
| --- | --- |

21

It follows that the objective of that directive is to provide effective protection for creditors against late payment. Such protection means offering those creditors the fullest possible compensation for the recovery costs incurred, in such a way as to discourage such late payment (judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 26).

| 22 | However, since the compensation provided for in Article 6(3) of Directive 2011/7 must be reasonable, that compensation can cover neither the part of those costs which is already covered by the fixed amount of EUR 40 laid down in paragraph 1 of that article, nor costs which appear to be excessive in the light of the facts of the case in point as a whole (judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 30). |
| --- | --- |

22

However, since the compensation provided for in Article 6(3) of Directive 2011/7 must be reasonable, that compensation can cover neither the part of those costs which is already covered by the fixed amount of EUR 40 laid down in paragraph 1 of that article, nor costs which appear to be excessive in the light of the facts of the case in point as a whole (judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 30).

| 23 | It should also be noted that the fact that the reasonable compensation cannot cover that part of the costs already compensated for by the fixed sum of EUR 40 does not undermine the deterrent aim of the compensation provided for in Article 6 of Directive 2011/7. That article entitles the creditor, in any event, to obtain reasonable compensation for the remaining costs incurred, in addition to the fixed sum of EUR 40 to which he is automatically entitled, while avoiding recovery costs being compensated for twice. |
| --- | --- |

23

It should also be noted that the fact that the reasonable compensation cannot cover that part of the costs already compensated for by the fixed sum of EUR 40 does not undermine the deterrent aim of the compensation provided for in Article 6 of Directive 2011/7. That article entitles the creditor, in any event, to obtain reasonable compensation for the remaining costs incurred, in addition to the fixed sum of EUR 40 to which he is automatically entitled, while avoiding recovery costs being compensated for twice.

| 24 | It therefore follows, both from the wording of Article 6 of Directive 2011/7 and from the purpose of that directive, that that article must be interpreted as meaning that the reasonable compensation under paragraph 3 thereof for recovery costs incurred by the creditor must be calculated by excluding from the amount of those costs the recovery costs already covered by the fixed sum of EUR 40 to which the creditor is entitled under paragraph 1 of that article. |
| --- | --- |

24

It therefore follows, both from the wording of Article 6 of Directive 2011/7 and from the purpose of that directive, that that article must be interpreted as meaning that the reasonable compensation under paragraph 3 thereof for recovery costs incurred by the creditor must be calculated by excluding from the amount of those costs the recovery costs already covered by the fixed sum of EUR 40 to which the creditor is entitled under paragraph 1 of that article.

| 25 | It is therefore up to the national courts to award reasonable compensation to the creditor under Article 6(3) of Directive 2011/7, to the extent that the total sum of all the recovery costs incurred by the creditor and considered by the national courts to be reasonable exceeds EUR 40, and after deducting from that amount the EUR 40 already awarded by way of a fixed sum. |
| --- | --- |

25

It is therefore up to the national courts to award reasonable compensation to the creditor under Article 6(3) of Directive 2011/7, to the extent that the total sum of all the recovery costs incurred by the creditor and considered by the national courts to be reasonable exceeds EUR 40, and after deducting from that amount the EUR 40 already awarded by way of a fixed sum.

| 26 | That interpretation is unaffected by recitals 19 and 20 of Directive 2011/7. |
| --- | --- |

26

That interpretation is unaffected by recitals 19 and 20 of Directive 2011/7.

| 27 | It cannot be inferred from those recitals that ‘internal’ recovery costs may only be compensated for by the fixed sum of EUR 40, while other recovery costs should be subject to independent compensation under Article 6(3) of Directive 2011/7 (see, to that effect, judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraphs 34 to 37). |
| --- | --- |

27

It cannot be inferred from those recitals that ‘internal’ recovery costs may only be compensated for by the fixed sum of EUR 40, while other recovery costs should be subject to independent compensation under Article 6(3) of Directive 2011/7 (see, to that effect, judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraphs 34 to 37).

| 28 | Furthermore, and in any case, the preamble to an EU measure has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner that is clearly contrary to their wording (judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 33). As the referring court also observes, Article 6 of Directive 2011/7 does not draw any distinction between internal recovery costs and other recovery costs. |
| --- | --- |

28

Furthermore, and in any case, the preamble to an EU measure has no binding legal force and cannot be relied on either as a ground for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner that is clearly contrary to their wording (judgment of 13 September 2018, Česká pojišťovna, C‐287/17, EU:C:2018:707, paragraph 33). As the referring court also observes, Article 6 of Directive 2011/7 does not draw any distinction between internal recovery costs and other recovery costs.

| 29 | It follows from the foregoing that the answer to the question referred must be that Article 6(3) of Directive 2011/7 must be interpreted to mean that the fixed sum of EUR 40, to which the creditor is entitled pursuant to Article 6(1) of that directive, must be deducted from the reasonable compensation provided for in Article 6(3) thereof. |
| --- | --- |

29

It follows from the foregoing that the answer to the question referred must be that Article 6(3) of Directive 2011/7 must be interpreted to mean that the fixed sum of EUR 40, to which the creditor is entitled pursuant to Article 6(1) of that directive, must be deducted from the reasonable compensation provided for in Article 6(3) thereof.

Costs

Costs

| 30 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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. |
| --- | --- |

30

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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 (Tenth Chamber) hereby rules: |
| --- | --- |

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

| | Article 6(3) 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 to mean that the fixed sum of EUR 40, to which the creditor is entitled pursuant to Article 6(1) of that directive, must be deducted from the reasonable compensation provided for in Article 6(3) thereof. |
| --- | --- |

Article 6(3) 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 to mean that the fixed sum of EUR 40, to which the creditor is entitled pursuant to Article 6(1) of that directive, must be deducted from the reasonable compensation provided for in Article 6(3) thereof.

Article 6(3) 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 to mean that the fixed sum of EUR 40, to which the creditor is entitled pursuant to Article 6(1) of that directive, must be deducted from the reasonable compensation provided for in Article 6(3) thereof.

| | [Signatures] |
| --- | --- |

[Signatures]

---

(
  *1
  )	Language of the case: German.

*1