Judgment;Summary — ECLI:EU:C:2022:947
Date: 2022-12-01
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

summary debt proceedings for recovery of debt have the same effect 
as a warning notice. 
Paragraph 286(3) of the BGB: 
The debtor of a claim for payment is in default at the latest if he does not perform 
within thirty days after the due date and receipt of an invoice or equivalent 
statement of payment; this applies to a debtor who is a consumer only if these 
consequences are specifically referred to in the invoice or statement of payment. If 
the time at which the invoice or payment statement is received by the debtor is 
uncertain, a debtor who is not a consumer is in default at the latest thirty days after 
the due date and receipt of the consideration. 
III. 
By way of grounds for its decision in the final judgment of 2 October 2020, the 
Local Court, Munich held, inter alia, as follows: 
The second sentence of Paragraph 288(5) of the BGB provides that the entitlement 
to payment of a fixed sum for late payment also exists if the claim for payment 
relates to a staggered payment or other payment by instalments. The wording 
suggests that the entitlement to payment of a fixed sum for late payment arises for 
each claim for payment in respect of which the debtor is in default. However, 
account must be taken of the existence, in the present case, of a single contractual 
relationship involving individual claims for payment arising repeatedly or 
periodically. In such a case, in which various entitlements arise from a single 
circumstance and legal relationship, the first sentence of Paragraph 288(5) of the 
BGB must be teleologically reduced to the effect that the entitlements should be 
combined and it should be assumed that the fixed sum of compensation is applied 
only once. 
In its judgment of 22 August 2019 
(ECLI:DE:BGH:2019:220819UVIIZR115.18.0), the Bundesgerichtshof (Federal 
Court of Justice, Germany) held, inter alia, as follows: 
DOMUS-SOFTWARE 
 
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On the basis of the findings made by the appellate court, it is not possible to assess 
whether the applicant is entitled to more than one fixed sum under the first 
sentence of Paragraph 288(5) of the BGB. In accordance with that provision, 
which transposes Directive 2011/7/EU of the European Parliament and of the 
Council of 16 February 2011 on combating late payment in commercial 
transactions (‘the Late Payment Directive’), the creditor of a claim for payment is 
entitled to payment of a fixed sum of EUR 40.00 in the event that the debtor is in 
default. As regards the application of the fixed sum, it is necessary to determine 
whether the principal sum claimed constitutes a claim for payment. Claims for 
payment within the meaning of the first sentence of Paragraph 288(5) of the BGB 
are – in accordance with the Late Payment Directive – claims for payment of a 
consideration in return for a service performed or to be performed by the creditor. 
If the appellate court then finds that the maintenance services owed by the 
applicant have been performed and that, therefore, the principal sums recognised 
constitute claims for payment in that regard, it would have to determine whether, 
in the case of a number of claims for payment arising from similar contractual 
relationships, there is an entitlement to payment of only one fixed sum or of 
several fixed sums, in accordance with the first sentence of Paragraph 288(5) of 
the BGB, and to what extent that conclusion is compatible with the Late Payment 
Directive, in particular with Article 6(1) and (2) and Article 3 of that directive. It 
will also have to determine whether, in the case of periodic claims for payment 
arising from a single contractual relationship, there is an entitlement to payment of 
only one fixed sum or of several fixed sums, in accordance with the first sentence 
of Paragraph 288(5) of the BGB, and to what extent that conclusion is compatible 
with the Late Payment Directive, in particular with Article 6(1) and (2) and 
Article 3 of that directive. 
In that regard, different views are put forward in the literature […]. 
IV. 
Since, in any event, it is common ground that the applicant performed its services 
from September to December, this constitutes a claim for payment to which 
Paragraph 288(5) of the BGB applies. 
In addition, the defendant was in default. 
The Chamber takes the view that the question referred should be answered as 
follows: 
Article 6(1) and (2) of Directive 2011/7/EU, read in conjunction with Article 3 of 
Directive 2011/7/EU, must be interpreted as meaning that, in the case of a number 
of periodic claims for payment arising from a single contractual relationship, there 
REQUEST FOR A PRELIMINARY RULING OF 19. 4. 2021 – CASE C-370/21 
 
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is an entitlement to payment of a fixed sum of at least EUR 40 for each individual 
claim for payment. 
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