CJEC, 6th chamber, March 10, 2005, No C-235/03

THE COURT (Sixth Chamber),

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.