Judgment — ECLI:EU:C:2024:959
Date: 2024-11-14
Language of the case: Portuguese
Court formation: Sixth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-643/23 – 1 
Case C-643/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 October 2023 
Referring court: 
Tribunal da Relação de Lisboa (Portugal) 
Date of the decision to refer: 
4 July 2023 
Appellant: 
Agenciart – Management Artístico, Sociedade Unipessoal, Lda. 
Respondent: 
CT 
  
Subject matter of the main proceedings 
The appeal being heard by the Tribunal da Relação de Lisboa (Appeal Court, 
Lisbon) concerns determination of the scope of application of the payment order 
procedure, that is to say, whether or not the requirements ratione materiae and 
ratione personae governing that procedure are satisfied; the concepts of 
‘commercial transaction’ and ‘undertaking’ in paragraphs (1) and (3) respectively 
of Article 2 of Directive 2011/7/EU; the concept of acting as an organisation in 
respect of an independent professional activity and the structured exercise of that 
activity 
Subject matter and legal basis of the request 
Interpretation of EU law, specifically of recital 5 and Article 2(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); 
Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-643/23 
 
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Question referred for a preliminary ruling 
Should a natural person who habitually carries on the acting profession on a 
freelance basis for financial remuneration be categorised as an ‘undertaking’ 
within the meaning and for the purposes of recital 5 and Article 2(3) of Directive 
2011/7/EU of the European Parliament and of the Council of 16 February 2011, 
even though that person has no organised structure of resources (merely carrying 
on that activity but having no premises of his or her own, staff or tools or 
equipment related to the professional activity)? 
Provisions of European Union law relied on 
Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions 
(‘Directive 2011/7’), in particular recitals 5 and 10 and Article 2(1) and (3) 
Provisions of national law relied on 
Decreto-Lei n.º 62/2013, de 10 de maio, que establece medidas contra os atrasos 
no pagamento de transações comerciais, e transpõe a Diretiva n.º 2011/7/UE, do 
Parlamento Europeu e do Conselho, de 16 de fevereiro de 2011 (Decree-Law 
No 62/2013 of 10 May 2013 on combating late payment in commercial 
transactions, transposing Directive 2011/7/EU of the European Parliament and of 
the Council of 16 February 2011), in particular Article 3(b) and (d) 
‘Article 3 
Definitions 
For the purposes of this decree-law, the following definitions shall apply: 
… 
(b) “commercial transactions” means transactions between undertakings or 
between undertakings and public authorities for the purpose of the delivery of 
goods or the provision of services for remuneration; 
… 
 (d) “undertaking” means any entity, other than a public authority, acting in the 
course of its independent economic or professional activity, even where that 
activity is carried out by a single person’ 
Regime dos procedimentos para cumprimento de obrigações pecuniárias 
emergentes de contratos de valor não superior à alçada do tribunal de 1.ª Instância, 
aprovado pelo Decreto-Lei n.º 269/98, 1 de setembro (Provisions governing 
proceedings to enforce financial obligations arising under contracts where the 
AGENCIART – MANAGEMENT ARTÍSTICO 
 
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value does not exceed the jurisdiction of the first-instance court, approved by 
Decree-Law No 269/98 of 1 September 1998) (‘the RPCOPEC’), in particular 
Article 7 
Brief summary of the facts and procedure in the main proceedings 
1 The appellant is a commercial company that operates as an acting agency and is 
engaged in managing the artistic careers of the artists with whom it has entered 
into agency contracts. CT, the respondent, carries on the profession of actor and 
concluded an agency contract with the appellant which terminated on 30 June 
2017. 
2 In May 2017, the appellant negotiated with a television producer for the 
respondent’s participation in a soap opera and agreed the terms of her engagement 
in return for a fee for the agency services provided. The respondent’s participation 
in the soap opera began in June 2017 and ceased at the end of May 2018. 
3 In respect of those services, the appellant issued invoice No 2019/1 of 17 July 
2019, for EUR 19 188, which have not yet been paid by the respondent. The 
appellant states that it is entitled to the fee regardless of the fact that the agency 
contract expired on 30 June 2017, since the appellant had promoted, negotiated 
and concluded that engagement, before the agency relationship ended. 
4 The appellant brought enforcement proceedings for payment of a quantified 
amount against the respondent, before the Tribunal Judicial da Comarca de Lisboa 
(District Court, Lisbon, Portugal). 
5 By way of an enforceable title it submitted a payment order bearing an order for 
enforcement, issued in a payment order procedure processed by the Balcão 
Nacional das Injunções (National Payment Orders Service, Portugal). That 
procedure was commenced on 24 October 2019 and the order for enforcement was 
issued on 23 January 2020. 
6 The amount payable claimed by the appellant is EUR 19 188, as shown in invoice 
No 2019/1, plus default interest. The application for a payment order referred to a 
contract for the supply of goods and services of 1 June 2017 for the period 
between 1 June 2017 and 31 May 2018. 
7 The respondent raised an objection to the enforcement proceedings, claiming that 
notice of the payment order procedure had not been served or was invalid; that the 
incorrect proceedings had been used; that she had no capacity to be sued in respect 
of the enforcement; and that the claim being enforced was time barred. 
8 The Lisbon District Court upheld the objection to the enforcement proceedings 
and therefore terminated the enforcement. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-643/23 
 
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9 The appellant then lodged an appeal before the Lisbon Appeal Court, the referring 
court. 
The essential arguments of the parties in the main proceedings 
The appellant’s position 
10 In the appellant’s view, the agency relationship between the parties under the 
agency contract is a commercial transaction in accordance with the definition in 
Article 3(b) of Decree-Law No 62/2013. 
11 The services provided by the appellant are related to the profession of the 
respondent, who is an actor, and their objective is the carrying on of the 
respondent’s professional activity, which means that neither party can be 
considered to be a consumer, a key factor for the purposes of Article 2(2)(a) of 
Decree-Law No 62/2013, under which consumer contracts are excluded from its 
scope of application. 
12 Furthermore, precisely because the respondent carries on the profession of actor 
on a self-employed basis and concluded the agency contract at issue in that 
capacity, she must fall within the definition of ‘undertaking’ in Article 3(d) of 
Decree-Law No 62/2013. 
13 It can be inferred from the foregoing that the appellant’s use of the payment order 
procedure meets the requirements ratione materiae and ratione personae of the 
legislation and is the appropriate procedural means by which to enforce 
compliance with the respondent’s outstanding obligation, with the effect that the 
enforceable title should be found to be valid. 
14 The appeal should therefore be upheld, the judgment under appeal be set aside and 
the case be referred back to the first-instance court so that it can continue the 
proceedings. 
The respondent’s position 
15 According to the respondent, the first-instance court correctly found that the 
payment order procedure could not be used to obtain judicial enforcement of 
payment of the amount claimed, because the contract that gave rise to that 
payment obligation does not fall within the definition of a commercial transaction. 
According to the legislation, in order for there to be a commercial transaction the 
parties must be undertakings or undertakings and public authorities, which is 
clearly not the situation in the present case, since it does not concern a relationship 
between undertakings or undertakings and public authorities or a person engaged 
in a commercial activity, because the respondent carries on the profession of actor. 
16 In support of her case the respondent refers to the Court’s judgment of 
15 December 2016, Nemec (C-256/15, EU:C:2016:954), in so far as concerns 
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interpretation of the concepts of ‘commercial transaction’ and ‘undertaking’ for 
the purposes of Directive 2000/35/EC of the European Parliament and of the 
Council of 29 June 2000. In that judgment the Court held that it is not enough for 
a person to conclude a transaction relating to an economic activity in order to be 
an ‘undertaking’ and for the transaction to be classified as ‘commercial’. It is also 
necessary (i) that the person in question acts as an organisation in respect of that 
activity or of an independent professional activity, meaning that, whatever the 
form and legal status of that person in national law, he or she must exercise an 
economic activity in a structured and stable manner, so that the activity cannot be 
limited to an isolated one-off supply, and (ii) that the transaction in question forms 
part of that activity. 
17 The purported agency contract at issue was not a contract between undertakings 
and therefore cannot be considered to be a commercial transaction. It cannot be 
inferred that by concluding such a contract the respondent, who carries on the 
profession of actor, exercises an economic activity in a structured and stable 
manner or that she operates in the commercial sector by exercising an independent 
professional activity. 
18 The fact that the respondent initially regarded the contract in question as a 
‘commercial distribution’ contract has no bearing on the legal categorisation of 
the parties to the contract. 
19 The respondent carries on the liberal profession of actor and provides intellectual 
services founded on a specific professional qualification, on a personal basis and 
as part of a relationship of trust, and therefore does not fall within the concept of 
‘merchant’. 
20 Moreover, the respondent states that the appellant failed to demonstrate that it 
issued an initial notice to pay in the order for payment procedure, and it must 
therefore be found not to have been proven that the respondent received invoice 
No 2019/1. She also asserts that no valid notice to file an objection in the order for 
payment procedure was served, with the effect that the steps taken are invalid. 
Since the respondent was not given notice, the case should henceforth be heard in 
special declaratory judgment proceedings, and the application for a payment order 
should not include an order for enforcement. 
21 The respondent also asserts that the agency contract was not concluded between 
her and the appellant but between the appellant and CT Unipessoal, Lda. The 
respondent therefore has no capacity to be a party to these proceedings as the 
party against whom enforcement is sought. 
22 In addition, claims relating to the provision of agency services become time 
barred after two years. When the appellant filed its application for a payment 
order, the fee it allegedly should have been paid had long been time barred. 
23 The respondent also claims, first, that the contract concluded between her and the 
appellant terminated long before the production contract with the television 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-643/23 
 
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production company did so and, secondly, that the appellant was not a party to the 
contract with the television production company and did not promote that 
contract, since it was the respondent alone who negotiated the final terms of that 
contract. For those reasons, no fee is payable to the party seeking enforcement. 
24 By reason of the foregoing, although the first-instance court did not properly 
examine the grounds set out above, that failure did not affect the outcome of the 
case. The judgment under appeal did not err in the interpretation of Article 3(b) 
and (d) of Decree-Law No 62/2013 and must therefore be upheld in its entirety. 
Brief summary of the reasons for the referral 
25 The referring court examines whether the correct form of proceedings was used. 
26 According to the legislation, every enforcement action must be based on a title 
that determines the subject matter and limits of the enforcement, and the absence 
or unenforceability of the title is a ground for opposing enforcement. This means 
that wherever the obligation to be performed is not duly covered by an 
enforceable title or where it exceeds the limits of that title, the action will be 
defective for lack of an enforceable title. The absence of an enforceable title 
therefore necessarily terminates the enforcement. 
27 In the present case, the first-instance court held that the payment order at issue 
was not an enforceable title, because the amount shown on the invoice contained 
in the case file of the enforcement proceedings was more than EUR 15 000 and 
because, as the respondent was not a commercial undertaking, the appellant was 
not entitled to bring those proceedings against her. 
28 Under Article 10 of Decree-Law No 62/2013, the creditor in a commercial 
transaction not involving consumers is entitled to apply for a payment order 
irrespective of the amount of the claim, that is to say, even where the amount 
claimed is more than EUR 15 000, the upper limit in the general regime governing 
payment orders (under Article 7 of the RPCOPEC). 
29 In the light of Article 2(1) and (2)(a) and Article 3(b) of Decree-Law No 62/2013, 
this relates to claims arising from commercial transactions where no consumer is a 
party to the transaction. 
30 The referring court then examines the requirements ratione materiae and ratione 
personae of payment order procedures. 
31 The key concepts in relation to the requirements ratione materiae are ‘financial 
obligation arising under the contract’ (Article 1 of Decree-Law No 269/98) and 
‘commercial transaction’ (Article 3(b) of Decree-Law No 62/2013). The key 
concepts in relation to the requirements ratione personae are ‘consumer’ 
(Article 2(2)(a) of Decree-Law No 62/2013), ‘public authorities’ (Article 3(c) of 
AGENCIART – MANAGEMENT ARTÍSTICO 
 
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Decree-Law No 62/2013) and ‘undertaking’ (Article 3(d) of Decree-Law 
No 62/2013). 
32 In the present case, the payment order bearing an enforcement order concerned the 
payment of an invoice for services provided under an agency contract, which the 
appellant claims were provided to the respondent by it, as agent, in the context of 
the respondent’s activity as a professional actor. 
33 It flows from the foregoing that the requirements ratione materiae are satisfied: 
there is a contract giving rise to the amount claimed and the obligation is financial 
in the strict sense, that is to say, it is an obligation to pay a sum of money. The 
parties have not contested those points. 
34 The dispute in fact centres on whether the requirement ratione materiae of a 
commercial transaction and the requirement ratione personae that the parties must 
be undertakings, established in paragraphs (b) and (c) respectively of Article 3 of 
Decree-Law No 62/2013, should be found to be satisfied. 
35 The referring court notes that Decree-Law No 62/2013 transposed Directive 
2011/7, replacing and repealing Directive 2000/35/EC, which governed the same 
matters, into the national legal order. 
36 Under Article 3(b) of the decree-law, a transaction involving undertakings and 
which relates to the delivery of goods and services for (financial) remuneration is 
categorised as a commercial transaction. 
37 It is therefore necessary to examine the structure of the contract between the 
parties. In order to examine which form of proceedings is applicable, regard must 
be had to the subject matter and the cause of action as they are apparent from the 
application for a payment order, bearing in mind that the appellant asserts in that 
application that it ‘acted as an agency’ for the respondent. 
38 Agency contracts are governed by Decreto-Lei n.º 178/86, de 3 de julho (Decree-
Law No 178/86 of 3 July 1986), which defines them as contracts by which one of 
the parties undertakes to promote the conclusion of contracts on behalf of the 
other, for remuneration. 
39 On the one hand, academic commentators have classified agency contracts as 
commercial contracts. On the other, the case-law has not given a unanimous 
answer on whether agency contracts for artistic careers must be described as 
agency contracts. 
40 Quite clearly, since an agency contract is one form of the commercial contract of 
engagement, there is no doubt that the activity carried on by the appellant must be 
categorised as a provision of services. The definition of a commercial transaction 
is therefore met as regards the subject matter of the transaction. 
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41 The referring court finds that the requirements ratione materiae governing use of 
the payment order procedure are satisfied in the present case as regards the 
commercial nature of the transaction. 
42 In respect of the requirement ratione personae that the parties must be 
undertakings, the referring court notes that the services referred to in the invoice 
submitted with the application for a payment order were provided under an agency 
contract between the appellant, which is a commercial company, and the 
respondent, who is a natural person. 
43 It is therefore necessary to determine whether they both fall within the legal 
definition of an undertaking, that is to say, any organisation acting in the course of 
its independent economic or professional activity, even where that activity is 
carried out by a single person (Article 2(3) of Directive 2011/7). 
44 It is beyond doubt that the appellant falls within that category. The point at issue 
relates to the respondent. 
45 Since the appellant claimed in the application for a payment order that the 
respondent carried on the profession of actor, and the subject matter of the agency 
contract was the promotion of her career, regard must be had to the notion of a 
professional – as opposed to an economic – activity, exercised by a natural person. 
46 Recital 10 of Directive 2011/7, which states expressly that the liberal professions 
‘are covered by this Directive’, suggests that the liberal professions fall within a 
broad definition of ‘undertaking’. 
47 Since it was claimed in the application for a payment order that the respondent 
carries on the profession of actor and since the core element of the agency contract 
that she concluded with the appellant was the promotion of her professional 
activity, as a member of a liberal profession, that circumstance suggests, prima 
facie, that she can be categorised as an undertaking. 
48 The referring court cites the judgment in Nemec, which has been adduced by the 
respondent, and observes in that regard that the notion of ‘stable’ to which the 
Court refers can be clarified without leaving any room for doubt, since the regular 
and continuous exercise of a particular activity on a professional basis will be 
considered to be stable. The uncertainty relates to what must be understood by 
acting as an organisation and by the structured exercise of that activity. Nemec 
relates to the professional activity of a craftsman holding a licence to carry on an 
activity as a self-employed craftsman. The exercise of that activity presupposes 
that the craftsman has a structured set of means of production. 
49 That uncertainty persists in the context of Directive 2011/7, since the definitions 
of ‘commercial transaction’ and ‘undertaking’ in Directive 2011/7 are identical to 
those in Directive 2000/35/EC, which underpins Nemec. 
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50 Given the differences between the factual situation examined in Nemec and that in 
the present case, the findings that the Court made in that case cannot be 
extrapolated with clarity to the present case. Nor has the referring court found any 
other judgment of the Court in which it has ruled on the interpretation of those 
provisions. 
51 Reasonable doubt therefore remains as regards the interpretation of recitals 5 and 
10 and Article 2(1) and (3) of Directive 2011/7, which plays a key role in 
determining the dispute in the present case. 
52 The referring court therefore decides to stay the proceedings and refer the question 
set out above to the Court for a preliminary ruling under Article 267 TFEU.