62007CC0265_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. In the present case, the national court asks whether Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (‘Directive 2000/35’) (2) precludes national legislation under which the forced execution of unchallenged claims may be initiated against public authorities only after a period of 120 days has elapsed from the date on which the enforceable title was served on the public authority.
2. That question was raised in enforcement proceedings brought before the Tribunale civile di Roma (Rome Civil District Court) by the company Caffaro Srl (‘Caffaro’) against Azienda Unità Sanitaria Locale RM/C (the ‘USL’) under an enforceable title obtained by Caffaro in accordance with the national legislation incorporating Directive 2000/35 into national law.
II – Legal framework
A – Community law
3. Recital 4 in the preamble to D irective 2000/35 states that:
‘On 29 May 1997 the Economic and Social Committee adopted an opinion on the Commission’s Green Paper on Public procurement in the European Union: Exploring the way forward …’
4. Recital 5 states that:
‘On 4 June 1997 the Commission published an action plan for the single market, which underlined that late payment represents an increasingly serious obstacle for the success of the single market.’
5. Recital 7 states that:
‘Heavy administrative and financial burdens are placed on businesses, particularly small and medium-sized ones, as a result of excessive payment periods and late payment. Moreover, these problems are a major cause of insolvencies threatening the survival of businesses and result in numerous job losses.’
6. Recitals 9 and 10 state that:
‘(9) The differences between payment rules and practices in the Member States constitute an obstacle to the proper functioning of the internal market.
(10) This has the effect of considerably limiting commercial transactions between Member States. This is in contradiction with Article 14 of the Treaty as entrepreneurs should be able to trade throughout the internal market under conditions which ensure that transborder operations do not entail greater risks than domestic sales. Distortions of competition would ensue if substantially different rules applied to domestic and transborder operations.’
7. Recital 15 states:
‘This Directive only defines the term “enforceable title” but does not regulate the various procedures of forced execution of such a title and the conditions under which forced execution of such a title can be stopped or suspended.’
8. Recital 22 states:
‘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, having regard to the fact that the latter handle a considerable volume of payments to business. It should therefore also regulate all commercial transactions between main contractors and their suppliers and subcontractors.’
9. Recital 23 states:
‘Article 5 of this Directive requires that the recovery procedure for unchallenged claims be completed within a short period of time in conformity with national legislation, but does not require Member States to adopt a specific procedure or to amend their existing legal procedures in a specific way.’
10. Article 2 of Directive 2000/35 sets out definitions; paragraph 5 thereof provides as follows:
‘“enforceable title” means any decision, judgment or order for payment issued by a court or other competent authority, whether for immediate payment or payment by instalments, which permits the creditor to have his claim against the debtor collected by means of forced execution; it shall include a decision, judgment or order for payment that is provisionally enforceable and remains so even if the debtor appeals against it.’
11. Article 5 of Directive 2000/35, headed ‘Recovery procedures for unchallenged claims’, provides as follows:
‘1. Member States shall ensure that an enforceable title can be obtained, irrespective of the amount of the debt, normally within 90 calendar days of the lodging of the creditor’s action or application at the court or other competent authority, provided that the debt or aspects of the procedure are not disputed. This duty shall be carried out by Member States in conformity with their respective national legislation, regulations and administrative provisions.
2. The respective national legislation, regulations and administrative provisions shall apply the same conditions for all creditors who are established in the European Community.
3. The 90 calendar day period referred to in paragraph 1 shall not include the following:
(a) periods for service of documents;
(b) any delays caused by the creditor, such as periods devoted to correcting applications.
4. This Article shall be without prejudice to the provisions of the Brussels Convention on Jurisdiction and [the] Enforcement of Judgments in Civil and Commercial Matters.’ (3)
12. Article 6(2) of Directive 2000/35 reads as follows:
‘Member States may maintain or bring into force provisions which are more favourable to the creditor than the provisions necessary to comply with this Directive.’
B – National law
13. Directive 2000/35 was implemented in the Italian legal order by means of Legislative Decree No 231 of 9 October 2002 (‘Legislative Decree No 231/2002’). (4) Article 5 of Directive 2000/35 was implemented by means of Article 9 of Legislative Decree No 231/2002, which amended various provisions of the Italian Code of Civil Procedure (5) in order to speed up the procedure for obtaining the enforceable title for the recovery of unchallenged claims.
14. According to the order for reference, in Italy the procedure for obtaining an enforceable title under Article 641 of the Code of Civil Procedure is as follows. Within 30 days of the lodging of the application the court delivers the decree ordering the debtor to pay the debt. The decree is served within about 10 days. The decree lays down that the debtor must make the payment within 40 days or challenge the order within the same time-limit. If within that period the debtor does not challenge the order or pay the debt, upon expiry of the period the creditor obtains the enforceable title for forced execution of the acknowledged claim. A creditor intending to take enforcement action must serve the enforceable title on the debtor.
15. Special rules regarding forced execution against public authorities are set out in Decree-Law No 669 of 31 December 1996 (6) (‘Decree-Law No 669/1996’), ratified with amendments by means of Law No 30 of 28 February 1997 (7) and Article 147 of Law No 388 of 23 December 2000 (8) (‘Law No 388/2000’). Article 147 of Law No 388/2000 extended the period for the postponement of execution from 60 to 120 days. Article 14 of Decree-Law No 669/1996, which was ratified with amendments by means of Article 147 of Law No 388/2000, provides as follows:
‘State authorities and non-economic public bodies shall complete the procedures for the execution of court rulings and arbitration awards having executive effect and entailing an obligation to pay sums of money within 120 days of service of the enforceable title. Before expiry of that period the creditor shall not be entitled to proceed to forced execution against the said authorities and bodies nor may enforcement orders be put in place.’
III – Facts, dispute in the main proceedings and question referred for a preliminary ruling
16. The creditor, Caffaro, brought an action in the Tribunale ordinario di Roma (Rome District Court) for forced execution against the debtor USL on the basis of an unchallenged claim relating to a commercial transaction. In the proceedings before the national court, the creditor obtained an enforceable title within the meaning of Legislative Decree No 231/2002 which transposed Directive 2000/35 into Italian law. The enforceable title was served on the debtor on 6 December 2004. Forced execution was effected by way of the attachment of sums of money that the debtor held at Banca di Roma, and for that reason the enforceable title was also served on the latter on the same date. At the request of the debtor, the attachment was effected on 4 April 2005 and on that date a summons to appear in court was served on the debtor and Banca di Roma.
17.
The creditor, the debtor and Banca di Roma, with which the debtor held sums of money, were summoned to appear at a hearing on 13 June 2006, which was set in the course of enforcement proceedings. At the hearing, Banca di Roma confirmed that it held sums of money belonging to the debtor and stated that they had been frozen in accordance with the attachment order. At the same hearing, the national court noted that the attachment order had been effected before expiry of the period of 120 days from service of the enforceable title, the period laid down for enforcement against public authorities. The court also noted that, in accordance with national law, the attachment order could be declared void.
18. In so finding, the national court cast doubt on the compatibility of the national legislation, under which enforcement against public authorities can be effected only after 120 days have elapsed since service of the enforceable title on them, with Directive 2000/35. In view of the circumstances, the national court decided by an order of 21 May 2007 to stay the proceedings and to refer a question to the Court of Justice for a preliminary ruling. The national court did not formulate the question explicitly, but on the basis of its various pronouncements the question can be posed as follows:
‘Must Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions be interpreted as meaning that it precludes a national provision such as Article 14 of Decree-Law No 669/1996, under which a creditor in possession of an enforceable title relating to an unchallenged payment owed by a public authority as remuneration for a commercial transaction cannot proceed to forced execution against the said authority before a period of 120 days has elapsed since service of the said enforceable title on the authority?’
IV – Proceedings before the Court
19. The order for reference was received by the Court on 4 June 2007. In the course of the written procedure, observations were submitted by Caffaro, the Italian Government and the Commission. At the hearing on 13 March 2008, Caffaro, the Italian Government and the Commission presented oral argument and answered questions from the Court.
V – Arguments of the parties
20. Caffaro
maintains that the disputed national legislation, under which the forced execution of unchallenged claims can be initiated against public authorities only after 120 days have elapsed since the date of service of the enforceable title on the public authority, is contrary to Directive 2000/35. In its opinion, the period of 90 days for obtaining the enforceable title provided for in Article 5 of Directive 2000/35 thus becomes meaningless. It points out that Directive 2000/35 applies, under Article 1 thereof, ‘to all payments made as remuneration for commercial transactions’ and specifically – as is evident from recital 22 in the preamble to the directive – regulates ‘all commercial transactions irrespective of whether they are carried out between private or public undertakings or between undertakings and public authorities, having regard to the fact that the latter handle a considerable volume of payments to business’. Since the disputed national legislation treats private and public persons differently, Caffaro maintains that it is contrary to the wording and objectives of Directive 2000/35.
21. The Italian Government
points out that Directive 2000/35 does not lay down the period within which the claim made by the creditor in the enforceable order must be satisfied, so that a reading of the directive to include the execution stage is contrary to both the literal tenor of the directive and to its objective. It is clear from Article 5 of and recital 23 in the preamble to Directive 2000/35 that it relates only to the procedure for creating the enforceable title, and not to the subsequent execution stage. Nor can it be deduced from the definition of enforceable title in Article 2 of the directive that the creditor must be able to obtain immediate satisfaction of his claim. According to the Italian Government, the prohibition on proceeding to execution against a public authority before 120 days have elapsed since service of the enforceable title can be interpreted as the suspension of forced execution within the meaning of recital 15 in the preamble to the directive in question. The Italian Government also observes that if Directive 2000/35 is applied in concreto
it does not conflict with the national legislation at issue in the main proceedings. According to the Italian Government, that legislation is admissible on grounds of overriding public interest considerations, given that the purpose of deferring execution against public authorities is to give them the necessary time to ensure that funds are available to pay the debt in order to prevent forced execution proceedings from impeding the activities of the public authorities.
22. The Commission
first examines the admissibility of the reference for a preliminary ruling and considers it to be admissible. In its opinion, enforcement proceedings may be considered to be one of the types of proceedings in which the court settles a dispute and delivers a ruling of a judicial nature for the purposes of Article 234 EC, even where such proceedings are not intended to ascertain the existence of a particular right but their purpose consists in giving execution to an existing right. In the case of the attachment of sums of money which the debtor holds with third parties, the executing court concludes the enforcement proceedings by issuing an order in which it assigns the sums of money held by the third party to the creditor bringing the action ( ordinan za di assegnazione del credito ). According to the Commission, such an order constitutes a ruling of a judicial nature. The national court must also in any event ascertain whether all the formal requirements have been met in the execution of the attachment. If there are found to have been irregularities, the attachment can be declared void by means of a ruling that is similarly of judicial nature.
23. As regards the question referred, the Commission maintains that the Italian legislation at issue does not comply with Directive 2000/35. That directive applies to all commercial transactions, irrespective of the fact that they are carried out between undertakings and public authorities, and hence public bodies cannot be granted privileged treatment. Moreover, according to the Commission, the period for obtaining an enforceable title would become meaningless if the creditor, after having obtained the enforceable title, had to wait a further 120 days for execution. It notes that the purpose of the directive is to ensure that the creditor can proceed immediately with forced execution once the enforceable title has been obtained.
VI – Analysis by the Advocate General
A – Admissibility
24. According to settled case-law, in order to determine whether the body making a reference is a court or tribunal for the purposes of Article 234 EC, it is necessary to take account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether it applies rules of law (9) and whether it is independent and impartial. (10) Moreover, a national court falls within the definition of Article 234 EC only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature or to a final decision in the dispute. (11) The question of admissibility that arises in this case consists in establishing whether it can be considered that the national court can, in the case in point, give judgment in proceedings intended to lead to a final decision in the dispute by means of a ruling of a judicial nature.
25. In the case at issue, execution was effected on the basis of a summary payment order granted in a special accelerated procedure ( procedimento di ingiunzione ). (12) It is clear from the case-law of the Court that when a reference for a preliminary ruling is made in proceedings of the kind pending in the present case, that reference is admissible. (13) In its case-law, the Court has also pointed out that for the purposes of defining the court within the meaning of Article 234 EC it is not relevant whether the proceedings before that court are inter partes . (14) The national court may refer a question for a preliminary ruling regardless of the stage reached in the proceedings pending before it. (15)
26. The request for a preliminary ruling is therefore admissible.
B – Analysis of the request for a preliminary ruling
27. In the present case, the national court asks whether Directive 2000/35 precludes national legislation under which the forced execution of unchallenged claims can be initiated against public authorities only after a period of 120 days has elapsed since service of the enforceable title on the public authority. Article 5(1) of Directive 2000/35 provides that Member States must ensure that the creditor can obtain an enforceable title for the recovery of an unchallenged claim normally within 90 days of lodging his action. That article therefore sets the time-limit for obtaining the enforceable title, but it contains no provisions regarding the subsequent stage. The question therefore arises whether the stage following the obtaining of the enforceable title can fall within the competence of the Community. In my analysis, I shall deal first with the question of the division of competence between the Community and the Member States in the context of Directive 2000/35 and then I shall interpret the provisions of the directive.
1. The division of competence between the Community and the Member States in the context of Directive 2000/35
28. Directive 2000/35 does not harmonise all the rules relating to late payments in commercial transactions since it governs only certain specific rules intended to combat such delays, namely, rules on interest for late payments (Article 3), retention of title (Article 4) and procedures for recovery of unchallenged claims (Article 5). (16) The directive therefore constitutes minimum harmonisation (17) in combating late payment, and hence several of its provisions refer to the application of national provisions.
29. The reason why Directive 2000/35 only partly harmonises the mechanisms for preventing late payment stems from the fact that the Community does not have competence in matters not harmonised by the directive. In that regard, recital 12 states that the directive does not go beyond what is necessary to achieve an improvement in the working of the internal market and that it was adopted in compliance with the principle of subsidiarity. It is therefore important that the limits to the Community’s competence are not exceeded when interpreting this directive.
30. In its case-law, the Court has already set the limits of the competence of the Community in matters governed by Directive 2000/35. For example, in Commission
v Italy, (18) it has established that Article 4(1), which governs retention of title, provides only that it is possible for the seller and the buyer to agree a retention of title clause before the goods are delivered and that it is possible for the seller to retain title to the goods until they have been paid for in full, (19) but that it does not determine whether the retention of title clause must be confirmed on individual invoices for successive supplies bearing a specific date. (20) In the QDQ Media
case, (21) the Court ruled that, as Directive 2000/35 does not have a horizont al effect, it cannot of itself serve as the basis for an obligation to take account of the expenses of a lawyer acting for the creditor in judicial proceedings for the recovery of a claim if national law does not lay down such an obligation. Conversely, Advocate General Poiares Maduro maintained in Telecom
v Deutsche Telekom (22) that with reference to Article 3(1)(c)(ii) of Directive 2000/35, which governs the creditor’s right to interest for late payment, the problem of the division of competence does not arise, since that article makes no reference to the national law of the Member States. (23)
31. Article 5(1) of Directive 2000/35 is not only the key provision which the Court is called upon to interpret in the present case but is also fundamental as regards the division of competence between the Community and the Member States. The importance of the question as to the division of competence is demonstrated in the way in which that article has evolved. In the original proposal for Directive 2000/35, (24) Article 5 provided that the Member States must ‘ensure that there is an accelerated debt recovery procedure for undisputed debts’. (25) In the co‑decision procedure, the Council took the view that it did not fall within the competence of the Community to oblige the Member States to introduce a new procedure for the recovery of unchallenged claims. (26) Nevertheless, since that provision was of fundamental importance in combating late payment in commercial transactions, the Council requested that it be amended so that the Member States were not obliged to introduce into their national law a new procedure for the recovery of undisputed debts but only to ensure, within the framework of existing procedures, that the creditor can obtain an enforceable title normally within 90 days of lodging the application. (27)
32. Directive 2000/35 is one of the pieces of Community legislation that affect the enforcement procedures of the Member States. (28) At the Community level, a number of pieces of legislation having the same effect have already been adopted: Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, (29) Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European enforcement order for uncontested claims (30) and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure. (31) The abovementioned regulations have effect only in relation to cross-border forced execution procedures, (32) and not in situations such as that involved in the main proceedings, where forced execution is effected within a single Member State. They were adopted on the basis of Article 61(c) EC, (33) which provides for the adoption of measures in the field of judicial cooperation in accordance with Article 65 EC, which provides only for the adoption of measures in the field of judicial cooperation having cross-border implications. In the case in point, however, the situation is different, in that it is necessary to resolve the question of the division of competence between the Community and the Member States for execution procedures carried out within a single Member State.
33. On the one hand, it is necessary to understand the tendency of the Member States to retain their competence over enforcement procedures relating to enforcement solely within the Member State. The enforcement procedure is a balanced system, in which a change in a single component also affects the other components in that procedure. On the other hand, as we shall see shortly, the Member States must comply with Community law when exercising their competence in that field.
2. Interpretation of Directive 2000/35
34. As I have already stated, Article 5(1) of Directive 2000/35 provides that an enforceable title for the recovery of unchallenged claims should normally be obtained within 90 days of lodging the application. If a strictly linguistic interpretation were given to this article, the Community’s competence would cover the stage of obtaining the enforceable title, but the subsequent stage would come within the competence of the Member States. (34) However, I consider that Directive 2000/35 nevertheless conflicts with Italian legislation, which provides for execution against public authorities to be suspended for 120 days from the obtaining of the enforceable title. (35) In the present case, it is necessary first to take account of the object of the directive, the teleological interpretation of which will be of fundamental importance for resolving the question referred by the national court. (36) The directive must be interpreted in a way that safeguards its effectiveness ( effet utile ). (37)
35. The object of Directive 2000/35 is to prevent late payment in commercial transactions, thereby eliminating obstacles to the proper functioning of the internal market that arise precisely because of such late payment. (38) In this regard, recital 5 in the preamble to Directive 2000/35 states that late payment represents an increasingly serious obstacle for the success of the single market. Recitals 9 and 10 also point out that commercial transactions are considerably limited because of the differences between payment rules and practices in the Member States. (39) The means of preventing late payment include the 90-day limit for obtaining an enforceable title for the recovery of uncontested claims provided for in Article 5(1) of Directive 2000/35.
36. Directive 2000/35 is intended to safeguard small and medium‑sized undertakings, in particular, from late payment. To that effect, recital 7 in the preamble to the directive indicates that ‘heavy administrative and financial burdens are placed on businesses, particularly small and medium-sized ones’, as a result of late payment and that this is ‘a major cause of insolvencies’. Such businesses, which have a crucial role in increasing the economic growth of the Community, (40) are those most affected by late payment because in situations of this kind they do not have sufficient funds to finance themselves over the long term. Small and medium-sized undertakings raise finance mainly in the form of short-term credit, so that in most cases they cannot survive the pressure of late payment and consequently are often forced into bankruptcy. (41)
37. The objective of Directive 2000/35 is to prevent late payment in all commercial transactions, including those in which the debtors are public authorities. This means that its objective is also to prevent late payment in public procurement, as demonstrated by recital 4 in the preamble to the directive. (42) In that context, the directive employs the concept of ‘public authority’, which it defines broadly; Article 2(1) identifies ‘public authority’ as meaning ‘any contracting authority or entity, as defined by the Public Procurement Directives’. (43) The Commission’s study of the effectiveness of Community legislation regarding late payment (44) reveals that the worst payers are in fact the governments of several Member States. (45) Hence, punctuality in the payments made by public authorities is of crucial importance for the normal functioning of the system of public procurement and consequently for the functioning of the common market.
38. The disputed Italian legislation provides that a creditor in possession of an enforceable title issued against a public authority, duly obtained in accordance with Directive 2000/35 within 90 days, cannot proceed to forced execution before 120 days have elapsed since service of the enforceable title on the public authority. Under that provision, the procedures necessary for forced execution can be carried out during that period, but execution itself may not be commenced. In practice, that provision would have the same effects as if it were laid down that the creditor should obtain an enforceable title within 210 days of lodging his action or application at the court or other competent authority. The short period of 90 days for obtaining an enforceable title, as laid down in Article 5(1) of Directive 2000/35, thus becomes meaningless.
39. From that perspective, it is also necessary to interpret recital 15 in the preamble to Directive 2000/35, which provides, inter alia, that the directive does not regulate the conditions under which forced execution can be stopped or suspended. The Italian Government maintains that the deferment of execution against the public authorities comes within the scope of the suspension of execution within the meaning of recital 15. That argument cannot be accepted. As with the interpretation of Article 5(1), it can also be stated with reference to recital 15 in the preamble to Directive 2000/35 that the Member States are free to determine the conditions for the cancellation or suspension of execution, but those conditions cannot be established in a way that negates the effectiveness of the provisions of the directive. That interpretation of Directive 2000/35 does not interfere with the general competence of the Member States to enact national legislation establishing the conditions for the cancellation or suspension of execution.
40. Article 5(1) of Directive 2000/35 is one of the provisions of the directive that make reference to the national legal orders. Viewed from that angle, it can be likened to Article 4(1) of the same directive, which relates to retention of title and which the Court addressed in Commission
v Italy . (46) In that case, which concerned the question whether the retention of title clause must be confirmed on individual invoices for successive supplies bearing a specific date, the Court held that resolution of the question should be left to national legislation. In that light, it could perhaps be considered that the solution to the question in the present case could also be left to national legislation. However, the questions to be resolved in the two cases differ considerably. The Italian legislation at issue in Commission
v Italy
governed only the effectiveness of the retention of title clause; it therefore established one of the characteristics of that clause. In the present case, by contrast, the Italian legislation does not establish the characteristics necessary for obtaining the enforceable title but nullifies the short period for obtaining it.
41. The Italian legislation is contrary to the object of Directive 2000/35, not least because it treats public authorities more favourably than businesses. In that way, it makes effective protection impossible, especially for small and medium-sized enterprises, and impedes prompt payment under public contracts. The Italian Government claims that the privileged treatment of public authorities is justified by overriding public interest considerations, because the postponement of execution ensures proper operation of the public authorities. That argument cannot justify the Italian legislation at issue. By lengthening payment periods, public authorities in fact retain on loan the money of their creditors, who should receive it when the payment period expires. The creditors, in other words businesses, in relation to which public authorities are debtors can equally claim that because of late payment they cannot operate properly and cannot have guarantees as to the liquidity of their operations. Punctual payment is extremely important for such businesses, because in the event of insolvency they face the threat of bankruptcy, which by contrast does not apply to public authorities. Moreover, it must be borne in mind that the Member States, in accordance with Article 6(2) of Directive 2000/35, may maintain or bring into force provisions which are more favourable to the creditor; conversely, the adoption by a Member State of provisions more favourable to the debtor can be regarded as contrary to the directive.
42. It must be taken into account that even before the end of the period for transposition of the directive the Member States could not adopt measures contrary to the object of the directive. (47) In that regard, I would like to point out that Italy amended the period for the suspension of execution, increasing it from the original 60 days to the current 120 days on 23 December 2000, that is to say six months after Directive 2000/35 was adopted (48) and during the period for its transposition, set to end on 8 August 2002. (49) Italy’s conduct could thus be defined as circumvention of the objective of the directive, and therefore as conduct in fraudem legis agere. (50) Under Article 249(3) EC, the Member States are free to choose the form and methods necessary for the transposition of a directive but are bound as to the result to be achieved. In accordance with settled case-law, the Member States are required to transpose the directive in a manner that does not prejudice its effectiveness ( effet utile ) (51) and the objectives it pursues. (52)
43. Although the result of a literal interpretation of Article 5(1) of Directive 2000/35 is that the stage following the obtaining of the enforceable title does not fall within the competence of the Community, the Member States may not exercise their competence in a manner that conflicts with the objects of Community legislation in force. The division of competence between the Community and the Member States does not mean that the latter, in exercising their competence, may enact measures contrary to the objective of the directive. In accordance with the first paragraph of Article 10 EC, Member States must ‘take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of [the] Treaty or resulting from action taken by the institutions of the Community’. Similarly, under the second paragraph of that article, the Member States must abstain ‘from any measure which could jeopardise the attainment of the objectives of [the] Treaty’. Similar obligations, on the basis of which the Member States are required to comply with Community law even in matters within their competence, are to be found, for example, in the fields of direct taxation, (53) social security systems (54) and education. (55)
44. To conclude, I must point out that Directive 2000/35 cannot preclude the Italian legislation in its entirety but only on the level of the ratione materiae
of that directive, in other words in so far as it deals with an unchallenged claim in a commercial transaction. Directive 2000/35 makes no reference to other types of claim and hence, with regard to such claims, it cannot affect the Italian legislation. However, the finding that Directive 2000/35 conflicts with the legislation at issue in the main proceedings does not confer on the Community general powers to regulate the procedures for forced execution not involving cross-border elements.
VII – Conclusion
45. On the basis of the foregoing, I propose that the Court rule that Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions must be interpreted as meaning that it precludes a national provision such as Article 14 of Decree-Law No 669/1996 under which a creditor in possession of an enforceable title relating to an uncontested payment owed by a public authority as remuneration for a commercial transactio n cannot proceed to forced execution against the said authority before 120 days have elapsed from the service of the enforceable title on that authority.
(1) .
(2)  –	OJ 2000 L 200, p. 35.
(3)  – Consolidated version in OJ 1998 C 27, p. 1.
(4)  –	Legislative Decree No 231 of 9 October 2002 (GURI No 249 of 23 October 2002). In the literature, see, for example, Kindler, P., ‘Umsetzung der EG-Zahlungsverzugs-richtlinie in Italien’, Recht der Internationalen Wirtschaft, No 4/2003, p. 241.
(5)  –	Codice di procedura civile (GURI No 253 of 28 October 1940), as amended.
(6)  –	Decree-Law No 669 of 31 December 1996 (GURI No 305 of 31 December 1996).
(7)  –	Law No 30 of 28 February 1997 (GURI No 50 of 1 March 1997).
(8)  –	Law No 388 of 23 December 2000 (GURI No 302 of 29 December 2000 – Ordinary Supplement No 219).
(9)  –	To that effect, see Case 61/65 Vaassen-Göbbels
[1966] ECR 261; Case C‑54/96 Dorsch Consult
[1997] ECR I‑4961, paragraph 23; and Case C‑506/04 Wilson
[2006] ECR I‑8613, paragraph 48.
(10)  –	To that effect, see Case 14/86 Pretore di Salò v Persons unknown
[1987] ECR 2545, paragraph 7; Case 338/85 Pardini
[1988] ECR 2041, paragraph 9; Case C‑17/00 De Coster
[2001] ECR I‑9445, paragraph 17; and Wilson, paragraph 48.
(11)  –	Order of 5 March 1986 in Case 318/85 Greis Unterweger
[1986] ECR 955, paragraph 4; Case C‑111/94 Job Centre
[1995] ECR I‑3361, paragraph 9; Case C‑134/97 Victoria Film
[1998] ECR I‑7023, paragraph 14; and Case C‑195/98 Österreichischer Gewerkschaftsbund
[2000] ECR I‑10497, paragraph 25.
(12)  –	The procedimento di ingiunzione
(order for payment procedure) is governed by Articles 633 to 656 of the Code of Civil Procedure (GURI No 253 of 28 October 1940, as amended). With regard to this procedure in particular, see Franco, G., Guida al procedimento di ingiunzione, 3rd edition, Guiffrè Editore, Milan, 2001.
(13)  –	Case 162/73 Birra Dreher
[1974] ECR 201, paragraph 3; Case 70/77 Simmenthal
[1978] ECR 1453, paragraph 9; Case 199/82 San Giorgio
[1983] ECR 3595, paragraph 8; Joined Cases C‑277/91, C‑318/91 and C‑319/91 Ligur Carni and Others
[1993] ECR I‑6621, paragraph 16; Joined Cases C‑332/92, C‑333/92 and C‑335/92 Eurico Italia and Others
[1994] ECR I‑711, paragraph 11; and Case C‑18/93 Corsica Ferries [1994] ECR I‑1783, paragraph 12.
(14)  –	Eurico Italia and Others, paragraph 11; Corsica Ferries, paragraph 12; and Job Centre, paragraph 9. In the literature, see, for example, Wegener, B., in Calliess, C. and Ruffert, M. (eds), EUV/EGV. Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta. Kommentar, 3rd edition, Beck, Munich, 2007, commentary on Article 234 EC, p. 2062, footnote 52.
(15)  –	Case 43/71 Politi
[1971] ECR 1039, paragraph 5; Birra Dreher, paragraph 3; Simmenthal, paragraphs 8 and 9; and San Giorgio, paragraph 8. In the literature, see Gaitanides, C., in von der Groeben, H. and Schwarze, J. (eds), Kommentar zum Vertrag über die Europäische Union und zur Gründung der Europäischen Gemeinschaft, 6th edition, Nomos, Baden-Baden, 2003, Vol. 4, commentary on Article 234 EC, p. 1405, paragraph 53.
(16)  –	See Case C‑302/05 Commission
v Italy
[2006] ECR I‑10597, paragraph 23.
(17)  –	To that effect, see Commission
v Italy, paragraph 24; the Opinion of Advocate General Poiares Maduro in Case C‑306/06 Telecom
v Deutsche Telekom
[2008] ECR I‑0000, point 35; and the judgment in that case, paragraph 21. In the literature, see Mengozzi, P., I ritardi di pagamento nelle transazioni commerciali. L’interpretazione delle norme nazionali di attuazione delle direttive comunitarie, Cedam, Padua, 2007, pp. 1 to 4.
(18)  –	Cited in footnote 16.
(19)  –	Ibid., paragraph 29.
(20)  –	Ibid., paragraph 31. In the literature, see, for example, Montfort, C., ‘Opposabilité de la clause de réserve de propriété’, Revue Lamy droit des affaires, No 14/2007, p. 59.
(21)  –	Case C‑235/03 [2005] ECR I‑1937.
(22)  –	Opinion of Advocate General Poiares Maduro in Telecom
v Deutsche Telekom .
(23)  –	See the Opinion of Advocate General Poiares Maduro in Telecom
v Deutsche Telekom, point 35. In the judgment in that case, the Court does not make specific reference to this point; it only observes, in paragraph 21, that Directive 2000/35 does not harmonise fully all the rules relating to late payments in commercial transactions.
(24)  –	Proposal for a European Parliament and Council Directive combating late payment in commercial transactions, COM(1998) 126 final (OJ 1998 C 168, p. 13). The same text of Article 5 recurs in the amended proposal for that directive, COM(1998) 615 final (OJ 1998 C 374, p. 4).
(25)  –	In the literature, see, for example, Knapp, A., ‘Das Problem der bewuβten Zahlungsverzögerung im inländischen und EU-weiten Handelsverkehr’, RabelsZ, No 63/1999, p. 327.
(26)  –	Common Position (EC) No 36/1999 adopted by the Council on 29 July 1999 with a view to adopting Directive 1999/.../EC of the European Parliament and of the Council on combating late payment in commercial transactions (OJ 1999 C 284, p. 1), point (v) of the statement of reasons. In the literature, with regard to the common position, see Lardeux, G., ‘La lutte contre le retard de paiement dans les transactions commerciales: position commune du Conseil n o 36/1999 du 29 juillet 1999 en vue de l’adoption d’une directive concernant la lutte contre le retard de paiement dans les transactions commerciales’, La semaine juridique. Entreprise et Affaires, No 35/2000, p. 1318.
(27)  –	Common Position (EC) No 36/1999, point (v) of the statement of reasons.
(28)  –	The first step in this area was taken with the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 (OJ 1978 L 301, p. 77; consolidated version in OJ 1998 C 27, p. 1). This was the first legal instrument of the Member States of the Community governing conflicts of jurisdiction between the courts of the Member States and the enforcement of judgments in civil and commercial matters. After the entry into force of the Treaty of Amsterdam, which transferred new powers to the Community in the field of judicial cooperation in civil matters, the Council adopted Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1). This regulation replaced the Brussels Convention for all the Member States except Denmark. With regard to the Community’s jurisdiction in these fields, see, for example, Heß, B., ‘Die “Europäisierungˮ des internationalen Zivilprozessrechts durch den Amsterdamer Vertrag – Chancen und Gefahren’, Neue Juristische Wochenschrift, No 1/2000, p. 23.
(29)  –	Cited in footnote 28.
(30)  –	OJ 2004 L 143, p. 15.
(31)  –	OJ 2006 L 399, p. 1.
(32)  –	Micklitz, H.-W. and Rott, P., ‘Vergemeinschaftung des EuGVÜ in der Verordnung (EG) Nr. 44/2001’, Europäische Zeitschrift für Wirtschaftsrecht, No 1/2002, p. 15, note that Regulation No 44/2001 governs the recognition and enforcement of judgments in civil and commercial matters in other Member States. Stadler, A., ‘From the Brussels Convention to Regulation 44/2001: Cornerstones of a European law of civil procedure’, Common Market Law Review, No 6/2005, p. 1637, states that Regulation No 44/2001 governs the recognition and enforcement of judgments in civil and commercial matters between the Member States. Rijavec, V., ‘Postopek potrditve Evropskega izvršilnega naslova’, Podjetje in delo, No 5/2007, p. 791, holds that Regulation No 805/2004 on the European enforcement order for uncontested claims represents a change in the system of enforcement on the basis of foreign court decisions. Sujecki, B., ‘Das Europäische Mahnverfahren’, Neue Juristische Wochenschrift, No 23/2007, p. 1622, points out that the procedure laid down in Regulation No 1896/2006 simplifies and speeds up the cross-border recovery of uncontested claims.
(33)  –	The legal basis of Regulation No 44/2001 is not only Article 61(c) EC but also Article 67(1) EC, and that of Regulation No 805/2004 is also Article 67(5) EC.
(34)  –	This is confirmed by Review of the effectiveness of European Community legislation in combating late payments, drawn up in 2006 for the Commission by the legal practice of Demolin, Brulard, Barthelemy, Hoche under the leadership of Jean Albert, available at http://ec.europa.eu/enterprise/regulation/late_payments/doc/finalreport_en.pdf, pp. 61 and 170.
(35)  –	Since the reply to the question referred is far from being a foregone conclusion, such a case can be defined from the theoretical legal point of view as a ‘hard case’, in contrast to a ‘clear case’. To that effect, see Hart, H.L.A., The Concept of Law
(with a postscript edited by Penelope A. Bulloch and Joseph Raz), 2nd edition, Clarendon Press, Oxford, 1994, p. 307, who asserts that in such situations courts rule according to their discretion, on the basis of which they make the law. For a different view, see Dworkin, R., ‘Hard Cases’, Harvard Law Review, 88th Year, 1975, p. 1075. See also Alexy, R., A Theory of Legal Argumentation. The Theory of Rational Discourse as Theory of Legal Justification, Clarendon Press, Oxford, 1989, p. 8, who also relativises the concept of a ‘clear example’, in that its clarity is only apparent, since it is always possible to find arguments against the decision in the case in point.
(36)  –	See the Opinion of Advocate General Poiares Maduro in Case C‑64/05 P Sweden
v Commission
[2007] ECR I‑11389, point 26, where the teleological and systematic interpretation prevailed over the literal interpretation, which did not provide a clear solution. See also Delnoy, P., Élements de méthodologie juridique, 2nd edition, Larcier, Brussels, 2006, p. 93, according to whom the clear text must also be interpreted, from which we can infer that a merely literal interpretation is not sufficient for a precise understanding of the text. Pechstein, M. and Drechsler, C., in Reisenhuber, K. (ed.), Europäische Methodenlehre. Handbuch für Ausbildung und Praxis, De Gruyter Recht, Berlin, 2006, p. 171, state that the Court often resorts to a teleological interpretation, primarily to ensure that the objectives of Community law are achieved. Similarly Reisenhuber, K., in Reisenhuber, K. (ed.), op. cit., p. 261, states that the teleological interpretation is of fundamental importance for interpreting Community law. With reference to the interpretation of directives, see also Schmidt-Kessel, M., in Reisenhuber, K. (ed.), op. cit., pp. 404 and 405.
(37)  –	In the literature, with reference to effectiveness as a criterion of interpretation, see Pechstein, M. and Drechsler, C., in Reisenhuber, K. (ed.), op. cit., p. 172, and Oppermann, T., Europarecht, 3rd edition, Beck, Munich, 2005, p. 160, paragraphs 69 and 70.
(38)  –	In the literature, see, for example, Hänlein, A., ‘Die Richtlinie 2000/35/EG zur Bekämpung von Zahlungsverzug im Geschäftsverkehr und ihre Umsetzung in Deutschland’, Europäische Zeitschrift für Wirtschaftsrecht, No 22/2000, p. 680; Schulte-Braucks, R., ‘Zahlungsverzug in der Europäischen Union’, Neue Juristische Wochenschrift, No 2/2001, p. 104; Schulte-Braucks, R. and Ongena, S., ‘The Late Payment Directive – a Step towards an emerging European Private Law?’, European Review of Private Law, No 4/2003, p. 524; Milo, J.M., ‘Combating Late Payment in Business Transactions: How a New European Directive has failed to set a Substantial Minimum Standard regarding National Provisions on Retention of Title’, European Review of Private Law, No 3/2003, p. 380. With reference to the criteria of Directive 2000/35, see also Pandolfini, V., La nuova normativa sui ritardi di pagamento nelle transazioni commerciali. Commento al D.Lgs. 9 ottobre 2002, n. 231 Attuazione della direttiva 2000/35/CE relativa alla lotta contro i ritardi di pagamento nelle transazioni commerciali, Giuffrè Editore, Milan, 2003, pp. 1 to 3.
(39)  –	In order to achieve that objective, the directive was adopted under Article 95 EC, which can serve as the legal basis of a Community provision only when its purpose is to contribute effectively to creating and improving the conditions necessary for the functioning of the internal market and to eliminating obstacles to the free movement of goods or the freedom to provide services or to removing distortions in competition. Measures that only marginally improve the conditions necessary for the functioning of the internal market cannot be adopted on the basis of the article in question. See, to that effect, Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco
[2002] ECR I‑11453, paragraphs 50 and 60; Case C‑66/04 United Kingdom
v Parliament and Council
[2005] ECR I‑10553, paragraphs 59 and 64; and Case C‑380/03 Germany
v Parliament and Council
[2006] ECR I‑11573, paragraph 37. See also my Opinion in Case C‑404/06 Quelle
[2008] ECR I‑0000, point 54. In the literature, see, for example, Kahl, W., in Calliess, C. and Ruffert, M. (eds), op. cit., commentary on Article 95 EC, p. 1262; Pipkorn, J., Bardenhewer-Rating, A. and Taschner, H.C., in von der Groeben, H. and Schwarze, J. (eds), op. cit., Vol. 2, commentary on Article 95 EC, p. 1405, paragraph 7.
(40)  –	This was emphasised, for example, in the conclusions of the European Council of Brussels of 23 and 24 March 2006, 7775/1/06 REV 1, p. 8, point 28, available at http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/89013.pdf.
(41)  –	Review of the effectiveness of European Community legislation in combating late payments
(see footnote 34), p. 20.
(42)  –	In that regard, recital 4 in the preamble to Directive 2000/35 refers to the opinion of the Economic and Social Committee on the ‘Green Paper entitled Public procurement in the European Union: Exploring the way forward’ (OJ 1997 C 287, p. 92), in which the Committee points, inter alia, to the problem of late payment in public procurement procedures.
(43)  –	Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1); Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1); Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54); and Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).
(44)  –	Review of the effectiveness of European Community legislation in combating late payments
(see footnote 34).
(45)  –	Review of the effectiveness of European Community legislation in combating late payments
(see footnote 34), p. 208.
(46)  –	Cited in footnote 16.
(47)  –	Case C‑129/96 Inter-Environnement Wallonie
[1997] ECR I‑7411, paragraph 45; Case C‑14/02 ATRAL
[2003] ECR I‑4431, paragraph 58; and Case C‑316/04 Stichting Zuid-Hollandse Milieufederatie
[2005] ECR I‑9759, paragraph 42. In the literature, see Lenaerts, K. and Van Nuffel, P., Constitutional Law of the European Union, 2nd edition, Sweet & Maxwell, London, 2005, p. 768.
(48)  –	Directive 2000/35 was adopted on 29 June 2000.
(49)  –	Article 6(1) of Directive 2000/35.
(50)  –	According to Paolo, Digesto 1, 3, 29. Kranjc, J., Latinski pravni reki, Cankarjeva založba, Ljubljana, 1998, p. 116. Kranjc cites Paolo, who states that the difference between infringement and circumvention of the law consists in the fact that infringement is conduct contrary to the law, whereas circumvention is conduct apparently complying with the law but in fact entailing evasion of the rule.
(51)  –	The case-law on the effectiveness (effet utile)
of directives is extensive. In that regard, see, for example, Joined Cases C‑58/95, C‑75/95, C‑112/95, C‑119/95, C‑123/95, C‑135/95, C‑140/95, C‑141/95, C‑154/95 and C‑157/95 Gallotti and Others
[1996] ECR I‑4345, paragraph 14; Case C‑386/03 Commission
v Germany
[2005] ECR I‑6947, paragraph 28; Case C‑212/04 Adeneler and Others
[2006] ECR I‑6057, paragraph 93; Case C‑250/06 United Pan-Europe Communications Belgium and Others
[2007] ECR I‑11135, paragraph 45; and Case C‑341/05 Laval un Partneri
[2007] ECR I‑11767, paragraph 80.
(52)  –	To that effect, with reference to Directive 2000/35, Conti observes that it is necessary effectively to ensure the voluntas legis
in its implementation. See Conti, R., ‘La direttiva 2000/35/CE sui ritardati pagamenti e la legge comunitaria 2001 di delega al Governo per la sua attuazione’, Corriere Giuridico, No 6/2002, p. 815. On the effet utile, see also Baron, F. and others, Union Européenne 2006-2007 . Memento pratique Francis Lefebvre, Editions Francis Lefebvre, Levallois, 2005, p. 19, paragraph 85; Lenaerts, K. and Van Nuffel, P., op. cit., p. 531. For the Member States, achievement of the objectives of Community law is an obligation as to the result to be achieved. To that effect, see Schmidt, G., in von der Groeben, H. and Schwarze, J. (eds), op. cit., Vol. 4, commentary on Article 249 EC, p. 786, paragraph 38.
(53)  –	Direct taxation as such does not fall within the competence of the Community, but the Member States must nevertheless exercise their competence in compliance with Community law. See, for example, Case C‑279/93 Schumacker
[1995] ECR I‑225, paragraph 21; Case C‑436/00 X and Y
[2002] ECR I‑10829, paragraph 32; and Case C‑9/02 de Lasteyrie du Saillant
[2004] ECR I‑2409, paragraph 44.
(54)  –	For example, in Case C‑372/04 Watts
[2006] ECR I‑4325, paragraph 92, the Court established that ‘whilst it is not in dispute that Community law does not detract from the power of the Member States to organise their social security systems, and that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine the conditions in which social security benefits are granted, when exercising that power Member States must comply with Community law, in particular the provisions on the freedom to provide services’. See also Case C‑157/99 Smits and Peerbooms
[2001] ECR I‑5473, paragraph 46, and Case C‑385/99 Müller-Fauré and van Riet
[2003] ECR I‑4509, paragraph 17.
(55)  –	In that regard, the Court has stated that although the Member States have power to define the content of education and the organisation of education systems, when exercising that power they must comply with Community law. See, for example, Case C‑76/05 Schwarz and Gootjes-Schwarz
[2007] ECR I‑6849, paragraph 70, and Joined Cases C‑11/06 and C‑12/06 Morgan and Bucher
[2007] ECR I‑9161, paragraph 24.