Drago Nemec v Republika Slovenija.
Date: 2016-12-15
22


It must be noted in this respect that the contract at issue in the main proceedings was indeed concluded in June 1993, and that the present case thus originates in a situation which arose before the accession of the Republic of Slovenia to the European Union.
23


However, that situation continued to produce effects after accession. The non-payment of the principal debt which gave rise to the interest for late payment claimed by Mr Nemec continued until 18 May 2010, the date on which the association made that payment, and the action brought by Mr Nemec seeks precisely to obtain compensation for the loss he claims to have suffered because of the dismissal by the Višje sodišče v Mariboru (Court of Appeal, Maribor) of his claim to payment of that interest for the period from 1 January 2002 to 18 May 2010.
25


Moreover, in accordance with settled case-law of the Court, unless there is a derogation, a new rule applies immediately to the future effects of a situation which arose under the old rule. Applying that principle, the Court has held that, where the act concerning the conditions of accession of a Member State contains no specific provision on the application of a provision of EU law, that provision must be considered to be immediately applicable and binding as regards that Member State as from the date of its accession to the EU, so that it applies to the future effects of situations arising before accession (see, to that effect, judgments of 12 November 2009, Elektrownia Pątnów II, C‑441/08, EU:C:2009:698, paragraph 32; 22 December 2010, Commission v Poland, C‑385/08, not published, EU:C:2010:801, paragraph 29; and 21 December 2011, Ziolkowski and Szeja, C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 57).
33


It follows that it is not enough for a person to conclude a transaction relating to an economic activity, such as leasing a chattel to another person, for him to be an ‘undertaking’ and the transaction to be classified as ‘commercial’ within the meaning of Article 2(1) of the directive. The person must also act as an organisation within the framework of an independent economic or professional activity.
38


Any other interpretation would amount to making the scope of those concepts depend on national law, more particularly on the system established by each Member State for the exercise of an independent economic or professional activity. However, it follows from the requirements both of the uniform application of EU law and of the principle of equality that, in the absence of a reference to national law in Article 2(1) of Directive 2000/35, the terms ‘undertaking’ and ‘commercial transactions’ must be given an autonomous and uniform interpretation (see, by analogy, judgment of 29 September 2015, Gmina Wrocław, C‑276/14, EU:C:2015:635, paragraph 25 and the case-law cited).
46


In order to answer that question, it should be recalled that, in accordance with settled case-law of the Court, Directive 2000/35 does not harmonise fully all the rules relating to late payments in commercial transactions (judgments of 26 October 2006, Commission v Italy, C‑302/05, EU:C:2006:683, paragraph 23; 3 April 2008, 01051 Telecom, C‑306/06, EU:C:2008:187, paragraph 21; and 11 September 2008, Caffaro, C‑265/07, EU:C:2008:496, paragraph 15).
49


The Member States therefore remain free to regulate that question, provided, however, that they do not disregard the objectives pursued by Directive 2000/35 or deprive the directive of practical effect (see, by analogy, judgment of 14 September 2016, Pérez López, C‑16/15, EU:C:2016:679, paragraph 59 and the case-law cited).
50


It must be pointed out in this connection that that directive aims principally, as stated in recitals 7 and 16, to discourage late payment, in particular by ensuring that late payment is not financially attractive to debtors, and to protect creditors against late payment.