Opinion of the Advocate General — ECLI:EU:C:2016:619
Date: 2016-07-28
Language of the case: Slovenian
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Summary — Judgment of the Court (Fifth Chamber), 15 December 2016 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation of a directive in connection with a dispute arising before the accession of a Member State to the European Union and continuing to produce effects after that accession — Included (Art. 267 TFEU) 2. Approximation of laws — Combating late payments in commercial transactions — Directive 2000/35 — Scope — Transactions concluded by an organisation acting in the course of an independent economic or professional activity — Definition — Need to exercise that activity in a structured and stable manner — Criteria for assessment (European Parliament and Council Directive 2000/35, Art. 2(1)) 3. Approximation of laws — Combating late payments in commercial transactions — Directive 2000/35 — Interest for late payment — National legislation limiting the maximum amount of interest for late payment to the principal amount of the debt — Lawfulness (European Parliament and Council Directive 2000/35, Art. 3(1)(a) to (c)) 1. See the text of the decision. (see paras 25-27) 2. Article 2(1) of Directive 2000/35 on combating late payment in commercial transactions must be interpreted as meaning that a natural person holding a licence to carry on an activity as a self-employed craftsman must be regarded as an undertaking within the meaning of that provision, and a transaction concluded by him as a commercial transaction within the meaning of that provision, where that transaction, although not part of the activities covered by the licence, forms part of the exercise of an independent economic or professional activity that is structured and stable, which is for the referring court to ascertain in the light of all the circumstances of the case. It is not enough for a person to conclude a transaction relating to an economic activity, such as leasing a chattel to another person, for him to be an undertaking and the transaction to be classified as commercial within the meaning of Article 2(1) of Directive 2000/35. The person must also act as an organisation within the framework of an independent economic or professional activity. That requirement means that that person, whatever his form and legal status may be in national law, must exercise that activity in a structured and stable manner, so that the activity cannot be limited to an isolated one-off supply, and that the transaction in question must form part of that activity. On the other hand, first, it does not follow from Article 2(1) of Directive 2000/35 that the activity in question must necessarily be the principal economic or professional activity of the person concerned, or be linked to that activity. Secondly, whether a person counts as an undertaking within the meaning of that provision cannot depend on the issue by the competent national authorities of a licence to exercise the activity in question. In that respect, while the fact that the person concerned has concluded a transaction within the bounds of the activity for which he has been granted a licence may be taken into account among other factors for ascertaining whether he has acted as an undertaking within the meaning of Article 2(1) of Directive 2000/35, that fact cannot be decisive. Other circumstances that may be taken into account include in particular the fact that the person in question acts under his trading or professional name and the transaction concluded gives rise to the issue of an invoice. (see paras 33-36, 40, 42, 44, operative part 1) 3. Directive 2000/35 on combating late payment in commercial transactions must be interpreted as not precluding national legislation under which interest for late payment accrued but not paid ceases to run when the amount of the interest equals the principal amount (the ne ultra alterum tantum rule). Since Directive 2000/35 does not include rules relating to the period during which interest for late payment runs or to the maximum amount of interest, the Member States remain free to regulate that question, provided, however, that they do not disregard the objectives pursued by the directive or deprive it of practical effect. In this respect, such a rule is liable, by capping the amount of interest for late payment at the amount of the principal, to limit the deterrent effect of the payment of such interest. However, first, such a ceiling does not as such amount to calling in question the objective of protection of creditors pursued by Directive 2000/35 or depriving that directive of practical effect. The ne ultra alterum tantum rule does not bring about a limitation of the amount of interest for late payment that is such as to render nugatory the creditor’s entitlement, provided for in Article 3(1)(a) to (c) of the directive, to such interest in the case of late payment or to deprive the interest of any deterrent function as regards the debtor. Furthermore, the rule has no effect on the rate of interest applicable, which must correspond to that laid down in Article 3(1)(d) of the directive. Secondly, the national legislature can, on the basis of the margin of discretion it enjoys, take the view that a balance should be struck between the objective of protecting creditors and the need to avoid an unreasonable debt burdening the debtor. Within the bounds of that discretion, the legislature can consider that a rule such as the ne ultra alterum tantum rule is an appropriate instrument to that end. (see paras48, 49, 52-55, 59, operative part 2)