CELEX: 62003CJ0235
Language: en
Date: 2005-03-10 00:00:00
Title: Judgment of the Court (Sixth Chamber) of 10 March 2005.#QDQ Media SA v Alejandro Omedas Lecha.#Reference for a preliminary ruling: Juzgado de Primera Instancia nº 35 de Barcelona - Spain.#Directive 2000/35/EC - Definition of recovery costs - Expenses of abogado or procurador in judicial proceedings where use of those legal practitioners is not required - Impossible to include in the costs on the basis of national law - Impossible to rely on the directive against an individual.#Case C-235/03.

Case C-235/03
      QDQ Media SA
      v
      Alejandro Omedas Lecha
      (Reference for a preliminary ruling from the Juzgado de Primera Instancia No 35 de Barcelona)
      (Directive 2000/35/EC – Definition of recovery costs – Expenses of abogado or procurador in judicial proceedings where use of those legal practitioners is not required – Impossible to include in the costs on the basis of national law – Impossible to rely on the directive against an individual)
      Judgment of the Court (Sixth Chamber), 10 March 2005 .
      Summary of the Judgment
      Approximation of laws – Combating late payment in commercial transactions – Directive 2000/35 – Possibility, in the absence
            of measures transposing the directive, to rely on the right to claim the recovery costs from an individual – Excluded
      (European Parliament and Council Directive 2000/35, Art. 3(1)(e))
      In a case which relates to a dispute between individuals, where it is not possible on the basis of natural 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 an abogado or procurador of the creditor in judicial proceedings for the recovery of that debt, Directive 2000/35 on combating late payment in commercial
         transactions cannot of itself serve as the basis for the inclusion of such expenses, since a directive cannot of itself impose
         obligations on an individual and cannot be relied on against an individual.
      
      (see paras 16-17, operative part)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)10 March 2005(1)
         
         
               (Directive 2000/35/EC  –  Definition of recovery costs  –  Expenses of abogado or procurador in judicial proceedings where use of those legal practitioners is not required  –  Impossible to include in the costs on the basis of national law  –  Impossible to rely on the directive against an individual)
               
             In Case C-235/03,REFERENCE for a preliminary ruling under Article 234 EC, by the Juzgado de Primera Instancia No 35 de Barcelona (Spain), by
            decision of 5 May 2003, received at the Court on 2 June 2003, in the proceedings
            
            
            QDQ Media SA
            
            v
            
            Alejandro Omedas Lecha,
            
            
            
            THE COURT (Sixth Chamber),,
            
             composed of  A. Borg Barthet, President of the Chamber, J.-P. Puissochet (Rapporteur) and S. von Bahr, Judges,
            
             Advocate General:  J. Kokott,Registrar:  R. Grass,
             having regard to the written procedure,after considering the observations submitted on behalf of:
            
            –
             QDQ Media SA, by A. Quemada Cuatrecasas, Procurador de los Tribunales, and J. García López, abogado,
            
            –
             the Commission of the European Communities, by G. Valero Jordana and  R. Amorosi, acting as Agents, and  F. López Balaguer,
            abogada,
            
            
            
            having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
         gives the following
         
         
         Judgment
         1
            
          This reference for a preliminary ruling concerns the interpretation of Directive 2000/35/EC 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).
         
         
         
         2
            
          The reference was made in the context of the examination, by the Juzgado de Primera Instancia No 35 de Barcelona (Court of
         First Instance No 35, Barcelona), of an application by QDQ Media SA (‘QDQ Media’) for an order for payment against Mr Omedas
         Lecha, who failed to pay for a number of advertising services in respect of his professional activity.
         
         
            
               Legal background
            Community law
         
         3
            
          Directive 2000/35 aims to harmonise the laws of the Member States on combating late payments in commercial transactions between
         undertakings or between undertakings and public authorities in respect of the delivery of goods or the provision of services
         for remuneration.
         
         
         
         4
            
          Article 3(1) of Directive 2000/35 provides:
         ‘Member States shall ensure that:
         …
         
         (e)
            unless the debtor is not responsible for the delay, the creditor shall be entitled to claim reasonable compensation from the
               debtor for all relevant recovery costs incurred through the latter’s late payment. Such recovery costs shall respect the principles
               of transparency and proportionality as regards the debt in question. Member States may, while respecting the principles referred
               to above, fix maximum amounts as regards the recovery costs for different levels of debt.’
            
         
         
         National law
         
         5
            
          Article 32(5) of the Ley de Enjuiciamiento Civil 1/2000 (Law on Civil Procedure) of 7 January 2000 (‘the LEC’) provides, as
         regards the cost relating to legal proceedings:
         ‘Where representation by an abogado or procurador is not compulsory, the legal fees and disbursements paid to them shall be excluded from the calculation of the costs which
         the opponent of the legally represented party may be ordered to pay, except where the court considers the conduct of the party
         ordered to pay the costs to be vexatious, or where the legally represented party is domiciled in a place other than that where
         the proceedings take place. In the latter case the limits mentioned in Article 394(3) of this Law are applicable. 
         
         
         
         6
            
          Article 394(3) of the LEC provides:
         ‘Where … the unsuccessful party is ordered to pay the costs he may be ordered to pay, of the amount corresponding to the remuneration
         of abogados or other professionals not subject to a scale of costs or disbursements, only a total amount not exceeding one third of the
         sum which is the subject of the dispute, in respect of each of the parties to the dispute who have obtained a decision in
         their favour …
          The provisions of the preceding paragraph are not applicable where the court finds that the party ordered to pay the costs
         is a vexatious litigant.’
         
         
         
         7
            
          The LEC provides that enforcement proceedings may be brought in respect of debts of less than a certain amount, subject to
         a number of conditions.
         
         
         
         8
            
          Article 814(2) of the LEC states: 
         ‘In order to present an initial request for a payment order, representation by a procurador or abogado is not necessary.’
         
         The dispute in the main proceedings and the question referred for a preliminary ruling
         
         9
            
          QDQ Media employed the services of a procurador in order to present to the national court on 18 February 2003 its initial request for a payment order against Mr Omedas Lecha,
         which relates to a sum of EUR 470.58.
         
         
         
         10
            
          The Juzgado de Primera Instancia No 35 de Barcelona decided to stay proceedings and to refer the following question to the
         Court for a preliminary ruling:
         ‘Within the context of the protection accorded to a creditor under Directive 2000/35 … is it possible to regard as a debt-related
         recovery cost the expenses arising from the use of an abogado or procurador in the enforcement proceedings brought for the purpose of recovering that debt?’
         
         On the question referred for a preliminary ruling
         
         11
            
          The Court found that QDQ Media has its company seat in Madrid and that it had brought proceedings before the Juzgado de Primera
         Instancia No 35 de Barcelona. The Court thus requested clarification from the national court, in accordance with Article 104(5)
         of its Rules of Procedure, in particular in order to know the reason why Article 32(5) of the LEC does not permit it to allow
         QDQ Media’s claim that the expenses arising from representation by his procurador should be included in the costs, which Mr Omedas Lecha might be ordered to pay.
         
         
         
         12
            
          The national court responded to that request as follows:
         ‘Article 32 of the LEC provides for the possibility of an order for costs in declaratory proceedings of an adversarial nature.
         Enforcement proceedings are not declaratory, at least as regards the payment order stage. The LEC uses the words “initial
         request” (Article 814 of the LEC) not “application for a payment order”, and “creditor” and “debtor” not “parties to the proceedings”.
         Article 32(5) of the LEC might be applicable at the adversarial stage – which refers to the hearing or ordinary proceedings
         – but the question referred for a preliminary ruling concerns the possibility of including in the costs the expenses incurred
         since the initial request was lodged, in other words it seeks to ascertain whether, in accordance with Directive 2000/35,
         it is possible to order those costs to be paid by a debtor who has not objected to the payment or whose objection to the payment
         would in any event have been dismissed, without the need to make a finding as to bad faith or, where appropriate, to take
         account of the creditor’s domicile. Furthermore, it should be stated that even if the creditor has its company seat in Madrid,
         that kind of undertaking certainly has business premises and agencies throughout Spain. Consequently, the question concerns
         whether legal costs in all enforcement proceedings may be passed on, having regard to the terms of the directive concerned.’
         
         
         
         13
            
          In order to answer the national court, it should be recalled that, according to settled case-law, when applying national law,
         whether adopted before or after a directive, the national court having to interpret that law must do so, as far as possible,
         in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply
         with the third paragraph of Article 249 EC (see, in particular, Case C-343/98 Collino and Chiappero [2000] ECR I-6659, paragraph 21).
         
         
         
         14
            
          It is clear from the explanation and interpretation of national law given by the national court that national law does not
         permit the debtor to be ordered to pay the expenses arising from representation by a procurador for the presentation of an initial request for a payment order, where those proceedings are not part of an adversarial stage
         or where one of the creditor’s business premises or agencies is situated within the jurisdiction of the court seised, situations
         which are specifically the subject of the national court’s question.
         
         
         
         15
            
          According to the national court a result favourable to QDQ Media in those situations cannot, therefore, be attained by the
         application of national law, even if it is interpreted as far as possible in the light of Directive 2000/35.
         
         
         
         16
            
          In such a case, which relates to a dispute between individuals, as in the main proceedings, a directive cannot of itself impose
         obligations on an individual and cannot be relied upon as such against an individual (see, in particular, Case 152/84 Marshall [1986] ECR 723, paragraph 48, and Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-0000, paragraph 108).
         
         
         
         17
            
          Therefore, the answer to the question referred by the national court must be 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 an abogado or procurador 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.
         
         
         Costs
         18
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Sixth Chamber) rules as follows:
         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 an abogado or procurador of the creditor in judicial proceedings for the recovery of that debt, Directive 2000/35/EC of the European Parliament and
               of the Council of 29 June 2000 on combating late payment in commercial transactions cannot of itself serve as the basis for
               the inclusion of such expenses.[Signatures]
      
      
          1 –
            
            Language of the case: Spanish.