CJEU, 8th chamber, December 11, 2023, No C-303/23

THE COURT (Eighth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 2(1) and Article 3(1)(a) of Directive 2011/7/EU 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).

2 The request has been made in proceedings between Powszechny Zakład Ubezpieczeń S.A. (‘PZU’) and Volvia sp. z o.o. concerning the payment of interest by Volvia as a result of the delay in payment of the premiums due under two insurance contracts concerning motor vehicles and PZU’s lump-sum compensation for the costs of recovery.

 Legal context

 European Union law

3 Recitals 3, 8, 9 and 17 of Directive 2011/7 state:

‘(3) Many payments in commercial transactions between economic operators or between economic operators and public authorities are made later than agreed in the contract or laid down in the general commercial conditions. Although the goods are delivered or the services performed, many corresponding invoices are paid well after the deadline. Such late payment negatively affects liquidity and complicates the financial management of undertakings. It also affects their competitiveness and profitability when the creditor needs to obtain external financing because of late payment. …

…

(8) The scope of this Directive should be limited to payments made as remuneration for commercial transactions. This Directive should not regulate transactions with consumers, interest in connection with other payments, for instance payments under the laws on cheques and bills of exchange, or payments made as compensation for damages including payments from insurance companies. Furthermore, Member States should be able to exclude debts that are subject to insolvency proceedings, including proceedings aimed at debt restructuring.

(9) 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 …

…

(17) A debtor’s payment should be regarded as late, for the purposes of entitlement to interest for late payment, where the creditor does not have the sum owed at his disposal on the due date provided that he has fulfilled his legal and contractual obligations.’

4 Article 1 of that directive, entitled ‘Subject matter and scope’, provides, in paragraphs 1 and 2 thereof:

‘1. The aim of this Directive 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 [small and medium-sized enterprises (SMEs)].

2. This Directive shall apply to all payments made as remuneration for commercial transactions.’

5 As set out in Article 2 of that directive:

‘For the purposes of this Directive, the following definitions shall apply:

(1) “commercial transactions” means transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration;

…

(3) “undertaking” means any organisation, other than a public authority, acting in the course of its independent economic or professional activity, even where that activity is carried out by a single person;

(4) “late payment” means payment not made within the contractual or statutory period of payment and where the conditions laid down in Article 3(1) … are satisfied;

(5) “interest for late payment” means statutory interest for late payment or interest at a rate agreed upon between undertakings, subject to Article 7;

…’

6 Article 3 of that directive, entitled ‘Transactions between undertakings’, provides, in paragraph 1 thereof:

‘Member States shall ensure that, in commercial transactions between undertakings, the creditor is entitled to interest for late payment without the necessity of a reminder, where the following conditions are satisfied:

(a) the creditor has fulfilled its contractual and legal obligations; and

(b) the creditor has not received the amount due on time, unless the debtor is not responsible for the delay.’

 Polish law

 The Law on combating excessive delays in commercial transactions

7 Article 4 of the ustawa o przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (Law on combating excessive delays in commercial transactions), of 8 March 2013 (Dz. U. of 2013, item 403), defines, in point 1 thereof, a ‘commercial transaction’ as ‘a contract for the supply of goods or the provision of services for consideration, if the parties referred to in Article 2 enter into that contract in connection with the activity carried on’, and, in point 1a thereof, ‘cash performance’ as ‘remuneration for the supply of goods or performance of a service in commercial transactions’.

8 Article 7(1) of that law provides:

‘Save in the case where the debtor is a public authority, creditors in commercial transactions shall be entitled, without the need for a reminder, and unless the parties have agreed on a higher rate of interest, to statutory interest for late payment, for the period running from the date on which payment is due to the date on which it is made, if the following cumulative conditions are satisfied:

1) the creditor has fulfilled its obligations;

2) the creditor has not received payment within the period specified by the contract.’

 The Law on the Civil Code

9 According to Article 487(2) of the ustawa – Kodeks cywilny (Law on the Civil Code), of 23 April 1964 (Dz. U. of 1964, No 16, item 93), ‘a contract is a reciprocal one if both parties oblige themselves in such a manner that performance of one of them is to be a counterpart of the other party’s performance’.

10 Article 805(1) and (2) of the Law on the Civil Code is worded as follows:

‘(1) By the contract of insurance the insurer undertakes within the scope of his enterprise’s activity to render specified performance when an event envisaged in the contract occurs and the insuring party undertakes to pay a premium.

(2) The insurer’s performance shall involve in particular:

1) in the case of property insurance, the payment of specified damages for the damage arising due to an event envisaged in the contract;

2) in the case of personal insurance, the payment of a sum of money agreed on, a pension or other performance when an event envisaged in the contract occurs in the life of the insured party.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

11 Volvia, a car hire company incorporated under Polish law, took out two motor vehicle insurance contracts with PZU, an insurance company. The first contract relates to compulsory civil liability insurance for motor vehicle owners and to additional insurance relating to the organisation and coverage of costs of towing assistance. The second contract covers another type of voluntary insurance, namely ‘autocasco’ insurance, covering the loss, destruction and damage of the vehicle concerned.

12 PZU brought an action before the Sąd Rejonowy dla Wrocławia-Fabrycznej we Wrocławiu (District Court, Wrocław-Fabryczna, Wrocław, Poland), which is the referring court, requesting that Volvia be ordered to pay it insurance premiums in the amount of 7 619.89 Polish zlotys (PLN) (approximately EUR 1 700), together with default interest, under the two insurance contracts referred to in the preceding paragraph, as well as lump-sum compensation for the costs of recovery incurred.

13 Volvia filed an objection to the order for payment issued by the referring court. That order lapsed and the case was referred back to that court to be examined under the ordinary procedure.

14 In that context, the referring court asks whether an insurance contract concluded between undertakings may be classified as a ‘commercial transaction’ within the meaning of Article 2(1) of Directive 2011/7 and whether, consequently, such a contract falls within the material scope of that directive. It notes in that regard that the question of the nature of an insurance contract and, more specifically, of whether or not the premium paid by the policyholder constitutes consideration for a service provided by the insurer divides Polish case-law and legal writings.

15 According to the referring court, an insurance contract is not a reciprocal contract, since the premium paid by the policyholder is not the remuneration for the insurer’s service consisting in paying the compensation provided for in respect of the damage arising from an event covered by that contract. The referring court considers it necessary to ensure that such an interpretation of Polish law, which is the one accepted by the Sąd Najwyższy (Supreme Court, Poland), is not contrary to Directive 2011/7 as interpreted by the Court, in particular in the judgment of 9 July 2020, RL (Directive combating late payment) (C‑199/19, EU:C:2020:548).

16 It is in those circumstances that the Sąd Rejonowy dla Wrocławia-Fabrycznej we Wrocławiu (District Court, Wrocław-Fabryczna, Wrocław) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Should Article 2(1) of Directive [2011/7] be interpreted as meaning that an insurance contract under which the insurer promises to provide a specific service to an undertaking in the event of the occurrence of an event provided for in the contract constitutes a commercial transaction within the meaning of that provision and therefore comes within the scope ratione materiae of that directive?; and, if so,

(2) Should Article 3(1)(a) of Directive 2011/7 be interpreted as meaning that the insurer, simply by providing insurance cover under an insurance contract, fulfils its contractual and legal obligations within the meaning of that provision?’

 Consideration of the questions referred

17 Under Article 99 of its Rules of Procedure, the Court may, inter alia where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

18 It is appropriate to apply that provision to the present case.

 The first question

19 By its first question, the referring court asks, in essence, whether Article 2(1) of Directive 2011/7 must be interpreted as meaning that the concept of ‘commercial transactions’ covers an insurance contract by which the insurer undertakes to provide a specific service to an undertaking in the event of the occurrence of an event provided for in that contract and that undertaking undertakes to pay the insurance premium to the insurer.

20 At the outset, it should be recalled that the concept of ‘commercial transactions’ is defined in Article 2(1) of Directive 2011/7 as ‘transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration’. That provision must be read in the light of recitals 8 and 9 of that directive and in conjunction with Article 1(2) thereof, according to which it applies to all payments made as remuneration for commercial transactions.

21 It follows from those provisions that Directive 2011/7 applies to all payments made as remuneration for commercial transactions, including those between private undertakings, but excluding inter alia transactions with consumers. Therefore, the scope of that directive is defined very broadly (see, to that effect, judgment of 28 November 2019, KROL, C‑722/18, EU:C:2019:1028, paragraphs 31 and 32).

22 Article 2(1) of Directive 2011/7 sets out two conditions in order for a transaction to fall within the concept of ‘commercial transactions’ within the meaning of that provision. It must, first, be carried out either between undertakings or between undertakings and public authorities and, second, lead to the delivery of goods or the provision of services for remuneration.

23 As regards the first condition, it is common ground in the main proceedings that Volvia and PZU have the status of ‘undertaking’ within the meaning of Article 2(3) of that directive, which defines that concept as ‘any organisation, other than a public authority, acting in the course of its independent economic or professional activity, even where that activity is carried out by a single person’.

24 As regards the second condition referred to in Article 2(1) of Directive 2011/7, the Court held, in paragraph 27 of the judgment of 9 July 2020, RL (Directive combating late payment) (C‑199/19, EU:C:2020:548), that the concepts of ‘delivery of goods’ and ‘provision of services’ laid down in that provision constitute autonomous concepts of EU law and their scope cannot be determined by reference either to concepts known to the laws of the Member States or to classifications made at national level. In that regard, the Court recalled that Article 57 TFEU gives a broad definition to the concept of ‘services’, covering any service normally provided for remuneration which does not fall within the scope of the other fundamental freedoms, in order to ensure that all economic activity falls within the scope of the fundamental freedoms (judgment of 9 July 2020, RL (Directive combating late payment), C‑199/19, EU:C:2020:548, paragraphs 30 to 32).

25 The Court has also taken account of the objective of Directive 2011/7, which, according to Article 1(1) thereof, read in the light of recital 3 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, since such late payment negatively affects the liquidity of those undertakings, complicates their financial management and affects their profitability, when those undertakings need to obtain external financing because of late payment (judgment of 9 July 2020, RL (Directive combating late payment), C‑199/19, EU:C:2020:548, paragraph 35).

26 An insurance contract such as that at issue in the main proceedings, by which the insurer undertakes to provide a specific service to the other party in the event of an event provided for in that contract and that other party undertakes to pay insurance premiums to the insurer, thus constitutes a commercial transaction leading to the provision of services, within the meaning of Article 2(1) of Directive 2011/7, provided that that transaction is carried out between undertakings or between undertakings and public authorities. The insurance activity carried out by a professional, such as an insurance company, is an economic activity, that is to say, an activity consisting in offering goods or services on a given market (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 45). Subject to being remunerated, insurance activity therefore involves a ‘service’, within the meaning of Article 57 TFEU, and, consequently, a ‘provision of services’, within the meaning of Article 2(1) of Directive 2011/7.

27 The referring court’s doubts mainly concern whether an insurance contract gives rise to reciprocal obligations for the parties, and, in particular, whether the insurer’s service consisting in compensating the policyholder in case of an event can be regarded as being provided against the insurance premium, as remuneration, under Article 2(1) of Directive 2011/7. That court notes that, according to the Polish case-law and legal writings that it intends to follow, an insurance contract is not a reciprocal contract in performance of which a service is provided in return for the premium paid by the policyholder.

28 However, in the light of the concept of ‘commercial transactions’ within the meaning of Article 2(1) of Directive 2011/7, as interpreted by the Court, the obligation arising for the policyholder to pay the premium is justified, from an economic point of view, only by the guarantee of compensation that he or she receives in return from the insurer, in the event of the occurrence of an event. In those circumstances, even if compensation is neither immediate nor certain, given the uncertainty surrounding the occurrence of that event, the premium paid by the policyholder constitutes the ‘consideration’ for the service provided by the insurer and consisting in guaranteeing compensation to the policyholder, for the duration of the insurance contract, in case of an event (see, to that effect, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 47).

29 Such an interpretation cannot be invalidated by recital 8 of Directive 2011/7, which excludes from its scope payments made in the context of compensation for damages, including payments made by insurance companies, but without however referring to insurance contracts (see, by analogy, judgment of 9 July 2020, RL (Directive combating late payment), C‑199/19, EU:C:2020:548, paragraphs 36 and 40). Those contracts therefore fall within the scope of that directive.

30 Last, in the judgment of 13 September 2018, Česká pojišťovna (C‑287/17, EU:C:2018:707), the Court, ruling on a reference for a preliminary ruling in the context of a dispute concerning a claim for compensation of recovery costs resulting from the late payment of the insurance premiums due in performance of an insurance contract concluded between two undertakings, implicitly confirmed, when it answered the questions referred, that the insurance contracts concluded between two undertakings involve a ‘commercial transaction’ within the meaning of Article 2(1) of Directive 2011/7 and that, consequently, those contracts fall within the material scope of that directive.

31 In the light of all the foregoing reasons, the answer to the first question is that Article 2(1) of Directive 2011/7 must be interpreted as meaning that the concept of ‘commercial transactions’ covers an insurance contract by which the insurer undertakes to provide a particular service to an undertaking in the event of the occurrence of an event provided for in that contract and that undertaking undertakes to pay the insurance premium to the insurer.

 The second question

32 By its second question, the referring court asks, in essence, whether Article 3(1)(a) of Directive 2011/7 must be interpreted as meaning that, in the context of an insurance contract, the insurer fulfils its contractual and legal obligations on the sole condition that it provides insurance cover to the other party, irrespective of whether compensation has been paid to that party in the event of the occurrence of the event covered by that contract.

33 Under Article 3(1)(a) of Directive 2011/7, read in the light of recital 17 thereof, in commercial transactions between undertakings, the creditor must be entitled to interest for late payment without the necessity of a reminder if it has ‘fulfilled its contractual and legal obligations’.

34 It follows both from the wording of Article 3(1)(a) of Directive 2011/7 and from the answer given to the first question that the mere existence of insurance cover is sufficient for the insurer’s contractual and legal obligations to be regarded as having been fulfilled within the meaning of that provision.

35 The answer to the second question, therefore, is that Article 3(1)(a) of Directive 2011/7 must be interpreted as meaning that, in the context of an insurance contract, the insurer fulfils its contractual and legal obligations, within the meaning of that provision, on the sole condition that it provides insurance cover to the other party, irrespective of whether compensation has been paid to that party in the event of the occurrence of the event covered by that contract.

 Costs

36 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Eighth Chamber) hereby rules:

1. Article 2(1) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions

must be interpreted as meaning that the concept of ‘commercial transactions’ covers an insurance contract by which the insurer undertakes to provide a specific service to an undertaking in the event of the occurrence of an event provided for in that contract and that undertaking undertakes to pay the insurance premium to the insurer.

2. Article 3(1)(a) of Directive 2011/7

must be interpreted as meaning that in the context of an insurance contract, the insurer fulfils its contractual and legal obligations, within the meaning of that provision, on the sole condition that it provides insurance cover to the other party, irrespective of whether compensation has been paid to that party in the event of the occurrence of the event covered by that contract.