OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 29 May 2018 ( 1 )

Case C‑287/17

Česká pojišťovna a.s.

v

WCZ, spol. s r.o.

(Request for a preliminary ruling from the Okresní soud v Českých Budějovicích (České Budějovice District Court, Czech Republic))

(Reference for a preliminary ruling — Company law — Combating late payment in commercial transactions — Directive 2011/7/EU — Article 6(1) and (3) — Reimbursement of costs relating to the recovery of a debt — Costs of a reminder)

1. This reference for a preliminary ruling, made by the Okresní soud v Českých Budějovicích (District Court of České Budějovice, Czech Republic), concerns Article 6(1) and (3) of Directive 2011/7/EU. ( 2 ) This reference has been made in a dispute between the insurance company Česká pojišťovna a.s. and the undertaking WCZ, spol. s r.o., concerning compensation for recovery costs incurred by Česká pojišťovna in order to obtain payment of premiums owed by WCZ.

I. Legal framework

A. EU law

2. Recitals 19 to 21 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. (21) This Directive should be without prejudice to the right of Member States to provide for fixed sums for compensation of recovery costs which are higher and therefore more favourable to the creditor, or to increase those sums, inter alia, in order to keep pace with inflation.’

3. Article 6 of that 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 40 [euros]. 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 12 of that directive provides: ‘… 3. 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. 4. In transposing the Directive, Member States shall decide whether to exclude contracts concluded before 16 March 2013.’

B. Czech law

5. The last sentence of Paragraph 369(1) of zákon č. 513/1991, obchodní zákoník (Law No 513/1991 on the Commercial Code), as amended by zákon č. 179/2013 (Law No 179/2013), provides: ‘In addition to default interest, creditors shall be entitled to reimbursement of a minimum sum for the costs of recovery of the debt, the level and conditions of which shall be set by Government Decree.’

6. Paragraph 3 of nařízení vlády č. 351/2013 (Government Decree No 351/2013), which, according to the referring court, transposes Article 6 of Directive 2011/7 (‘the Government Decree’) provides: ‘In the case of reciprocal obligations on contractors … the minimum amount of costs associated with making each claim shall be 1200 [Czech koruna (CZK) (approximately EUR 47)].’

7. Paragraph 121(3) of zákon č. 40/1964, občanský zákonik (Law No 40/1964 establishing the Civil Code) provides: ‘The ancillaries to a claim are interest, default interest, penalties for late payment and recovery costs.’

8. Paragraph 142(1) of zákon č. 99/1963, občanský soudní řád (Law No 99/1963 establishing the Code of Civil Procedure) provides: ‘The court shall order the unsuccessful party to reimburse the party which has been fully successful in the case for the costs incurred in effectively exercising or defending a right.’

9. Under Paragraph 142a(1) of that Code: ‘An applicant who has been successful in proceedings for the performance of an obligation shall be entitled to be reimbursed for the costs of the proceedings by the defendant only if, within a period of at least [seven] days before lodging the document instituting proceedings, he sent the defendant, at his address for service or at his last known address, a formal notice.’

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

10. On 7 November 2012, Česká pojišťovna and WCZ concluded an insurance contract which took effect on the same day.

11. By letter of 10 March 2015, Česká pojišťovna informed WCZ that the contract had been terminated on 25 February 2015 as a result of the failure of WCZ to pay the premiums, and requested that the latter pay the premiums owed for the period from 7 November 2014 to 26 February 2015, in the amount of CZK 1160 (approximately EUR 45). In total, Česká pojišťovna sent four reminders to WCZ before bringing proceedings before the referring court.

12. Česká pojišťovna requests that that court order WCZ, first, to pay that sum of CZK 1160 (approximately EUR 45), together with default interest at the statutory rate, for the period from 25 February 2015 until the date of payment of the premiums owed, and secondly, to reimburse the costs associated with the recovery of its debt, in the amount of CZK 1200 (approximately EUR 47). Česká pojišťovna also contends that WCZ should be ordered to pay the costs of the proceedings.

13. Having found that the courts are required, under national law, to recognise, in respect of legal costs, costs associated with a single reminder sent to the defendant before bringing proceedings before the courts, the referring court asks whether it is necessary to recognise, in addition to the fixed compensation for recovery costs arising from Article 6 of Directive 2011/7, compensation for the costs of a reminder in accordance with the national procedural rules. That court points out that, according to recital 19 of that directive, the fixed compensation under Article 6 of that directive must necessarily cover the applicant’s costs of a reminder. It would follow, in its view, that awarding both sets of compensation (on the basis of Article 6 of the Directive and the national procedural rules) would enable the applicant to obtain the same compensation twice.

14. Such a question is fundamental in the case pending before the referring court since Česká pojišťovna is claiming fixed compensation in the amount of CZK 1200 (approximately EUR 47) under Paragraph 3 of the Government Decree and Article 6 of Directive 2011/7, and, under national law, compensation for the costs of legal representation, which includes the costs of a reminder sent before the bringing of the action, arising from national law.

15. In those circumstances, the referring court decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘Must Article 6(1) and (3) of Directive [2011/7] be interpreted as requiring the court to award a successful applicant in a dispute concerning the recovery of a debt under a commercial transaction defined in Article 3 or 4 of that directive the sum of EUR 40 (or the equivalent in national currency) as well as compensation for costs of the court proceedings, including compensation for costs of a reminder to the defendant before the bringing of the action, in the amount laid down by the procedural provisions of the Member State?’

III. The procedure before the Court

16. None of the parties in the main proceedings deemed it necessary to submit written observations in the present proceedings. Only the European Commission submitted observations to the Court. Moreover, no hearing was requested or organised of its own motion by the Court. Nevertheless, in order to be able to give a useful answer to the referring court, I felt it necessary to ask the parties and the Czech Government to respond in writing to a few questions, to which the Czech Government and the Commission have responded.

IV. Analysis

A. Preliminary observation

17. For the reasons set out in paragraphs 21 and 22 of the judgment of 16 February 2017, IOS Finance EFC (C‑555/14, EU:C:2017:121), the applicability ratione temporis of Directive 2011/7 cannot be called into question in the present case. Contrary to its argument in the case which gave rise to that judgment, the Commission accepts, in its observations, that Directive 2011/7 is applicable, notwithstanding the fact that the Czech Republic exercised the right under Article 12(4) of that Directive for Member States to exclude from the application of the directive contracts concluded before the date set by Article 12(1) thereof, for its transposition. In its response to the Court’s questions, the Czech Government also did not contest the applicability of Directive 2011/7.

B. Case-law

18. Unless I am mistaken, Article 6 of Directive 2011/7 has not yet been interpreted by the Court. ( 3 )

19. However, as regards the directive preceding Directive 2011/7, namely Directive 2000/35/EC, ( 4 ) the judgment of 10 March 2005, QDQ Media (C‑235/03, EU:C:2005:147), gave an interpretation of Article 3(1)(e) of Directive 2000/35/EC which corresponds, to a certain extent, to Article 6(3) of Directive 2011/7.

20. In that case, the Court was called upon to determine whether, within the context of the protection accorded to a creditor under Directive 2000/35, it was possible to regard as a debt-related recovery cost the expenses arising from the use of a lawyer or solicitor in the enforcement proceedings brought for the purpose of recovering that debt. The Court held that where it is not possible on the basis of national law to include, in the calculation of the costs which an individual who owes a business debt might be ordered to pay, the expenses arising from representation by a lawyer or solicitor of the creditor in judicial proceedings for the recovery of that debt, Directive 2000/35 cannot of itself serve as the basis for the inclusion of such expenses.

21. That type of cost was expressly referred to in Article 6(3) of Directive 2011/7 among the ‘recovery costs exceeding that fixed sum and incurred due to the debtor’s late payment’.

C. My proposals

22. After examining the purpose and wording as well as the context and history of Directive 2011/7, it is my view that, contrary to what recital 20 of that Directive might suggest, the fixed sum of EUR 40, provided for in Article 6(1) of that directive — as the minimum imposed on Member States — cannot be interpreted as seeking to cover exhaustively compensation for certain types of recovery costs (in the present case, ‘internal’ or ‘administrative’ recovery costs, which include the costs of a reminder). It follows that reasonable compensation, to which Article 6(3) of that directive refers, cannot be interpreted as concerning only ‘any’ [other] recovery costs incurred by creditors.

1. The objective and wording of Directive 2011/7

23. The aim of Directive 2011/7, under Article 1 thereof, is to combat late payment in commercial transactions, in order to ensure the proper functioning of the internal market, thereby fostering the competitiveness of undertakings and in particular of SMEs (small and medium-sized enterprises).

24. As stated in recital 12 of that directive, late payment constitutes a breach of contract which has been made financially attractive to debtors in most Member States by low or no interest rates charged on late payments ( 5 ) and/or slow procedures for redress. The legislature considered it necessary to reverse this trend and to discourage late payment.

25. That directive therefore seeks to provide effective protection of creditors against late payment, ( 6 ) protection which necessarily involves offering them the fullest possible compensation for any recovery costs they have incurred.

26. It is already clear, on that basis, that restricting the compensation under Article 6(3) of Directive 2011/7 to only certain categories of costs incurred by creditors would conflict with the fundamental rule according to which creditors are entitled to reasonable compensation ( 7 ) for all recovery costs related to late payment.

27. In practice, such a restriction would mean that some of the costs incurred by creditors would absolutely not be compensated, which would be manifestly contrary to the Directive’s objective of making late payment financially less attractive, and discouraging such late payment. ( 8 )

28. The wording of Directive 2011/7 clearly reflects its objective.

29. Under Article 6(1) of Directive 2011/7, creditors are entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40 (fixed at CZK 1200 (approximately EUR 47) under Czech law by Paragraph 3 of the Government Decree).

30. Under Article 6(2) of that directive, Member States will ensure that the fixed sum referred to in Article 6(1) of that directive is payable without the necessity of a reminder and as compensation for the creditor’s own recovery costs, without making a distinction between those costs. ( 9 )

31. A creditor’s right to reimbursement of his costs, in excess of the fixed sum of EUR 40, stems clearly from Article 6(3) of Directive 2011/7 which provides for compensation for ‘any recovery costs exceeding that fixed sum and incurred due to the debtor’s late payment’. That compensation therefore refers to ‘any’ costs [other] than those covered by the fixed sum.

32. Moreover, Article 12(3) of Directive 2011/7 according to which 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 must be interpreted as meaning, inter alia, that that directive does not prevent national legislation from granting creditors fixed compensation in excess of the minimum fixed sum of EUR 40.

33. However, if the national legislature decides to move in that direction, it is for it to adopt appropriate rules, such as, for example, determining a variable amount based on the level of the debt. ( 10 )

2. Recitals 19 and 20 of Directive 2011/7

34. In the knowledge that, according to the case-law of the Court, ‘the preamble to [an] act [of EU law] 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 clearly contrary to their wording’, ( 11 ) I consider it appropriate to comment on recitals 19 and 20 of Directive 2011/7, which differentiate between the types of costs incurred by creditors, apparently reserving ‘internal’ or ‘administrative’ costs for the fixed compensation which should cover them in full, and ‘other’ recovery costs for compensation that exceeds EUR 40.

35. Those concepts of ‘internal costs’ or ‘administrative costs’ appeared in the legislative history of the Directive.

36. In its proposal, the Commission opted, first, for automatic compensation for recovery costs, not otherwise defined, calculated on the basis of the amount of the unpaid debt (which could represent up to 1% of debt equal to or more than EUR 10000) and, secondly, for the reasonable compensation for ‘any’ [other] recovery costs. According to the explanatory memorandum, that amendment made it possible to replace ‘the vague concept of “recovery costs” by a new system consisting of a defined sum for internal recovery costs’. ( 12 )

37. The European Parliament’s Committee responsible for examining that proposal set an upper ceiling of EUR 40, irrespective of the amount of the outstanding debt, on the ground that ‘an open-ended 1% compensation rate payable on late payments of EUR 10000 or more could involve significant and disproportionate costs for larger value transactions and may not reflect actual costs’. ( 13 )

38. In its position at first reading, the Parliament retained the upper ceiling of EUR 40. It also stated that the reasonable compensation provided for in Article 6(3) of Directive 2011/7 accounted for other costs in excess of that sum of EUR 40. That statement confirms the fact that the fixed sum of EUR 40 does not seek to provide exhaustive compensation for ‘internal’ or ‘administrative’ recovery costs. However, it was also the Parliament, in its position at first reading, that introduced the idea, in recital 19 of that directive, that the fixed compensation seeks to limit internal or administrative recovery costs, just as it proposed (see recital 20 of that directive), that entitlement to payment of a fixed sum related to internal recovery costs. ( 14 )

39. Those concepts therefore found their way into recitals 19 and 20 of Directive 2011/7, which might suggest that the ‘any’ [other] costs referred to in Article 6(3) of that directive are ‘external’ costs, particularly since both recital 20 and Article 6(3) of that directive refer to the costs incurred by creditors in instructing a lawyer or employing a debt collection agency, that is to say services which are ‘external’ to the undertaking.

40. Several arguments lead me to reject the argument that that directive categorises the costs incurred by creditors, with ‘internal’ or ‘administrative’ costs to be covered by a single fixed compensation amount and ‘any’ [other] ( 15 ) (or ‘external’) costs to be covered by additional (reasonable, as stated in Article 6(3) of Directive 2011/7) compensation. ( 16 )

41. First of all, those concepts were not included in Directive 2000/35 which provided, in Article 3(1)(e) thereof, that the creditor was entitled to ‘reasonable compensation from the debtor for all relevant recovery costs incurred through the … late payment’ of the debtor (my emphasis). Directive 2011/7 which replaced Directive 2000/35 sought to be more effective in combating late payment in commercial transactions, and certainly not to complicate the compensation of creditors.

42. Next, the categorisation of the costs incurred by creditors finds no support in the wording of Article 6 of Directive 2011/7. Under Article 6(1) of that directive, the fixed sum is a minimum. Under Article 6(2) of the same directive, that sum is payable without a reminder and as compensation for the creditor’s own costs. Under Article 6(3), ‘any’ [other] costs (namely other than those covered by the fixed sum) may be obtained by creditors so as to ensure their ‘reasonable compensation’.

43. Furthermore, as pointed out by the Czech Government, a categorisation of costs also cannot be inferred from the list of costs, given for illustrative purposes, that creditors may demonstrate under Article 6(3) of Directive 2011/7. That list, which was introduced into the text of the Directive on the basis of the amendments made by the Parliament, sought only to explain which costs might be involved ( 17 ) and not to modify the fundamental rule applicable until then under Directive 2000/35, namely that creditors are entitled to reasonable compensation for all costs. Perhaps that example echoed the judgment of 10 March 2005, QDQ Media (C‑235/03, EU:C:2005:147) (see points 19 and 21 of this Opinion).

44. Lastly, categorisation of the costs would, moreover, result in somewhat of a paradox. It is my view (and that of the Czech Government) that, in the case of a late payment, a creditor recovering debt with the assistance of a lawyer from his undertaking would be able only to obtain a fixed compensation of EUR 40, despite being able to demonstrate that his costs were actually higher. By contrast, when using the services of an external lawyer, reasonable compensation for all costs is possible, in excess of the fixed sum of EUR 40, as part of the creditor’s internal costs. Such an interpretation would therefore lead to an unjustified difference in the treatment of comparable situations. Furthermore, such an interpretation would, in practice, encourage creditors to use the services of an external lawyer instead of the services of their own lawyers, which are usually less expensive. In other words, categorising the costs could lead to an artificial and unwarranted increase in claims arising from a late payment, or even overcompensation.

45. In conclusion, I take the view that the costs referred to in Article 6(3) of Directive 2011/7 are ‘any’ costs [other] than those covered by the fixed sum and that therefore, creditors may certainly be compensated for ‘internal’ or ‘administrative’ costs where they exceed that amount.

46. Furthermore, the fixed sum of EUR 40 is payable without it being necessary to justify the costs incurred (‘without the necessity of a reminder’, under Article 6(2) of Directive 2011/7), irrespective of whether they are ‘internal’, unlike other sums, which must be justified.

47. In this regard, Directive 2011/7 does not state how, following late payment by a debtor, the creditor must claim and justify the recovery costs incurred in excess of the fixed sum of EUR 40, in relation to which Article 6(3) of that directive entitles him to compensation. The adoption of those rules is left to the discretion of the national legislature, which may, in accordance with Article 12(3) of Directive 2011/7, ‘maintain or bring into force provisions which are more favourable to the creditor than the provisions necessary to comply with this Directive’.

V. Conclusion

48. For those reasons, I propose that the Court should answer the question referred for a preliminary ruling by the Okresní soud v Českých Budějovicích, (District Court of České Budějovice, Czech Republic) as follows: Article 6(1) and (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 is to be interpreted as meaning that the creditor is entitled to obtain from the debtor a fixed sum of EUR 40 as well as the reimbursement of all the recovery costs incurred due to the debtor’s late payment, but only for the part of those costs in excess of that fixed sum of EUR 40.

( 1 ) Original language: French.

( 2 ) Directive 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).

( 3 ) Several judgments relate to the interpretation of other provisions of that directive: in particular, judgments of 26 February 2015, Federconsorzi and Liquidazione giudiziale dei beni ceduti ai creditori della Federconsorzi (C‑104/14, EU:C:2015:125) (on the interpretation of Articles 7 and 12 of that directive); of 16 February 2017, IOS Finance EFC, C‑555/14, EU:C:2017:121 (on compatibility with that directive, and in particular Article 7(2) and (3) of national legislation, which allows a creditor to waive his right to interest for late payment and to compensation for recovery costs in return for immediate payment of the principal amount of the debt owed); and of 1 June 2017, Zarski (C‑330/16, EU:C:2017:418) (in essence, on the interpretation of Article 12 of that directive on its transposition). Moreover, still pending before the Court is Gabietz (C‑131/18), relating to Article 6(3) of Directive 2011/7 and concerning a similar situation to that in the present case.

( 4 ) Directive of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35).

( 5 ) Judgment of 16 February 2017, IOS Finance EFC (C‑555/14, EU:C:2017:121, paragraph 24).

( 6 ) See, as regards Directive 2000/35, judgment of 15 December 2016, Nemec (C‑256/15, EU:C:2016:954, paragraph 50).

( 7 ) Recital 19 of Directive 2011/7 refers to fair compensation.

( 8 ) See the end of recital 12 of Directive 2011/7, according to which the Directive should provide ‘inter alia, that the exclusion of the right to compensation for recovery costs should be presumed to be grossly unfair’.

( 9 ) Contrary to what recital 20 of that directive might have us believe, referring to ‘internal costs’ and ‘other costs’, with no definitions for those terms. I will come back to this.

( 10 ) As is the case in Ireland, where the national legislation (Statutory Instrument No 580/2012 — European Communities (Late Payment in Commercial Transactions) Regulations 2012) provides for a fixed sum of EUR 40 if the unpaid amount is less than EUR 1000, a fixed sum of EUR 70 if the unpaid amount is between EUR 1000 and 10000 and a fixed sum of EUR 100 if the unpaid amount is more than EUR 10000.

( 11 ) Judgment of 19 June 2014, Karen Millen Fashions, C‑345/13, EU:C:2014:2013, paragraph 31.

( 12 ) Proposal for a Directive of the European Parliament and of the Council on combating late payment in commercial transactions, 2009/0054(COD), p. 7. Moreover, ‘this recast of Directive [2000/35] aims at improving the effectiveness and the efficiency of remedies for late payment through the introduction of an entitlement to the recovery of administrative costs and compensation for internal costs incurred due to late payment’ (see that proposal, p. 5).

( 13 ) Report on the proposal for a Directive of the European Parliament and of the Council on combating late payment in commercial transactions, A7-0136/2010, p. 21.

( 14 ) Position of the European Parliament adopted at first reading on 20 October 2010 with a view to the adoption of Directive 2011/…/EU of the European Parliament and of the Council on combating late payment in commercial transactions (Recast), EP-PE_TC1-COD(2009)0054.

( 15 ) Other language versions of recital 20 do not use the word ‘autres’ [other] but, like the Dutch version, the word ‘overige’, the Italian version, the word ‘restanti’, the Spanish version, the word ‘demás’, which does not suggest any difference in the type of costs. Other language versions of the Directive do not draw a distinction between some and ‘other’ costs. The English version uses the word ‘any’, the Italian version, the word ‘ogni’, the Dutch version, the word ‘alle’, the Spanish version, the word ‘todos’, and the Greek version, the word ‘οποιαδήποτε’. Those language versions refer to all or any costs, far more than the word ‘autres’ [other].

( 16 ) The Czech Government and the Commission are also opposed to that categorisation of costs, as each of them is subject to a different scheme, which would lead to unjustified discrimination.

( 17 ) See amendments of 15 October 2010 made by the Committee on the Internal Market and Consumer Protection (Parliament document No A7-0136/2010; see amendment No 30).