BFF Finance Iberia S.A.U v Gerencia Regional de Salud de la Junta de Castilla y León (C-585/20)

Contents

Judgment of the Court (Third Chamber)20 October 2022^note(Reference for a preliminary ruling — Directive 2011/7/EU — Combating late payment in commercial transactions — Recovery from a public authority of debts assigned by undertakings to a collection agency — Compensation for recovery costs incurred by the creditor in the event of late payment by the debtor — Article 6 — Fixed minimum sum of EUR 40 — Transactions between undertakings and public authorities — Article 4 — Procedure for ascertaining the conformity of goods or services — Payment period — Article 2(8) — Definition of amount due — Inclusion of value added tax for the purpose of calculating default interest)In Case C‑585/20,REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Contencioso-Administrativo n 2 de Valladolid (Administrative Court No 2, Valladolid, Spain), made by decision of 22 September 2020, received at the Court on 5 November 2020, in the proceedingsBFF Finance Iberia SAUvGerencia Regional de Salud de la Junta de Castilla y León,THE COURT (Third Chamber),composed of K. Jürimäe, President of the Chamber, M. Safjan, N. Piçarra (Rapporteur), N. Jääskinen and M. Gavalec, Judges,Advocate General: A. Rantos,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Gerencia Regional de Salud de la Junta de Castilla y León, by D. Vélez Berzosa and L. Vidueira Pérez, acting as Agents,– the Spanish Government, by S. Jiménez García and M.J. Ruiz Sánchez, acting as Agents,– the European Commission, by G. Gattinara, M. Jáuregui Gómez and P. Ondrůšek, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 28 April 2022,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 2, Article 4(1), Article 6 and Article 7(2) 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 (OJ 2011 L 48, p. 1).

2The request has been made in proceedings between BFF Finance Iberia SAU (‘BFF’) and the Gerencia Regional de Salud de la Junta de Castilla y León (Regional Health Authority of Castilla y León, Spain; ‘the regional authority’) concerning the recovery by BFF from that authority of debts corresponding to remuneration due in return for the supply of goods and services by 21 undertakings to medical centres under the control of that authority.

Legal context

European Union law

Directive 2011/7

3Recitals 3, 9, 17 to 19, 23 and 26 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. ……(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, given that public authorities handle a considerable volume of payments to undertakings. ……(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.(18) Invoices trigger requests for payment and are important documents in the chain of transactions for the supply of goods and services, inter alia, for determining payment deadlines. …(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. ……(23) As a general rule, public authorities benefit from more secure, predictable and continuous revenue streams than undertakings. In addition, many public authorities can obtain financing at more attractive conditions than undertakings. At the same time, public authorities depend less than undertakings on building stable commercial relationships for the achievement of their aims. Long payment periods and late payment by public authorities for goods and services lead to unjustified costs for undertakings. It is therefore appropriate to introduce specific rules as regards commercial transactions for the supply of goods or services by undertakings to public authorities, which should provide in particular for payment periods normally not exceeding 30 calendar days, unless otherwise expressly agreed in the contract and provided it is objectively justified in the light of the particular nature or features of the contract, and in any event not exceeding 60 calendar days.…(26) In order not to jeopardise the achievement of the objective of this Directive, Member States should ensure that in commercial transactions the maximum duration of a procedure of acceptance or verification does not exceed, as a general rule, 30 calendar days. Nevertheless, it should be possible for a verification procedure to exceed 30 calendar days, for example in the case of particularly complex contracts, when expressly agreed in the contract and in any tender documents and if it is not grossly unfair to the creditor.’

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

5Under Article 2(1), (2), (4) and (8) 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;(2) “public authority” means any contracting authority, as defined in point (a) of Article 2(1) of Directive 2004/17/EC [of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1)] and in Article 1(9) of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)], regardless of the subject or value of the contract;…(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) or Article 4(1) are satisfied;…(8) “amount due” means the principal sum which should have been paid within the contractual or statutory period of payment, including the applicable taxes, duties, levies or charges specified in the invoice or the equivalent request for payment.’

6Article 4 of Directive 2011/7, entitled ‘Transactions between undertakings and public authorities’, reads as follows:1.Member States shall ensure that, in commercial transactions where the debtor is a public authority, the creditor is entitled upon expiry of the period defined in paragraphs 3, 4 or 6 to statutory 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.…3.Member States shall ensure that in commercial transactions where the debtor is a public authority:(a) the period for payment does not exceed any of the following time limits:…(iv) where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or in the contract and if the debtor receives the invoice or the equivalent request for payment earlier or on the date on which such acceptance or verification takes place, 30 calendar days after that date;…4.Member States may extend the time limits referred to in point (a) of paragraph 3 up to a maximum of 60 calendar days for:(a) any public authority which carries out economic activities of an industrial or commercial nature by offering goods or services on the market and which is subject, as a public undertaking, to the transparency requirements laid down in Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings [(OJ 2006 L 318, p. 17)];(b) public entities providing healthcare which are duly recognised for that purpose.If a Member State decides to extend the time limits in accordance with this paragraph, it shall send a report on such extension to the Commission by 16 March 2018.…5. Member States shall ensure that the maximum duration of a procedure of acceptance or verification referred to in point (iv) of point (a) of paragraph 3 does not exceed 30 calendar days from the date of receipt of the goods or services, unless otherwise expressly agreed in the contract and any tender documents and provided it is not grossly unfair to the creditor within the meaning of Article 7.6. Member States shall ensure that the period for payment fixed in the contract does not exceed the time limits provided for in paragraph 3, unless otherwise expressly agreed in the contract and provided it is objectively justified in the light of the particular nature or features of the contract, and that it in any event does not exceed 60 calendar days.’

7Article 6 of Directive 2011/7, 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 EUR 40.2. 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.’

8Article 7 of that directive, entitled ‘Unfair contractual terms and practices’, states, in paragraphs 1 and 3:1.…In determining whether a contractual term or a practice is grossly unfair to the creditor, within the meaning of the first subparagraph, all circumstances of the case shall be considered, including:…(c) whether the debtor has any objective reason to deviate … from the fixed sum as referred to in Article 6(1).…3. For the purpose of paragraph 1, a contractual term or a practice which excludes compensation for recovery costs as referred to in Article 6 shall be presumed to be grossly unfair.’

Directive 2006/112/EC

9Article 220 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), provides:‘Every taxable person shall ensure that, in respect of the following, an invoice is issued, either by himself or by his customer or, in his name and on his behalf, by a third party:(1) supplies of goods or services which he has made to another taxable person or to a non-taxable legal person;…’

10Article 226 of that directive is worded as follows:‘Without prejudice to the particular provisions laid down in this Directive, only the following details are required for [value added tax (VAT)] purposes on invoices issued pursuant to Articles 220 and 221:…(10) the VAT amount payable, except where a special arrangement is applied under which, in accordance with this Directive, such a detail is excluded;…’

Spanish law

11Article 8(1) of Ley 3/2004, por la que se establecen medidas de lucha contra la morosidad en las operaciones comerciales (Law No 3/2004 laying down measures to combat late payment in commercial transactions) of 29 December 2004 (BOE No 314 of 30 December 2004, p. 42334), in the version applicable to the dispute in the main proceedings (‘Law 3/2004’), provides:‘Where the debtor is late in payment, the creditor shall be entitled to claim from him or her a fixed sum of EUR 40 which shall in all cases be added to the principal debt without the need for an explicit request.In addition, the creditor shall be entitled to claim from the debtor compensation for all duly substantiated recovery costs which the former has incurred due to the latter’s late payment and which exceed the amount stated in the previous subparagraph.’

12Article 198(4) of Ley 9/2017, de Contratos del Sector Público, por la que se transponen al ordenamiento jurídico español las Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26 de febrero de 2014 (Law 9/2017 on public sector contracts transposing Directives 2014/23/EU and 2014/24/EU of the European Parliament and of the Council of 26 February 2014 into Spanish law), of 8 November 2017 (BOE No 272 of 9 November 2017, p. 107714) (‘Law 9/2017’), provides:‘Public authorities shall pay the price within 30 days of the date of acceptance of the progress reports or documents certifying that the goods or services supplied are in conformity with the contract, without prejudice to the provisions of Article 210(4), and in the event of delay, they shall be required to pay to the other party to the contract, upon expiry of that 30-day period, default interest and compensation for recovery costs, in accordance with Law 3/2004 … In order for interest to begin to accrue, the other party to the contract must have fulfilled the obligation to submit the invoice to the appropriate administrative register, in accordance with the legislation in force on electronic invoicing, in proper form and within the prescribed period of 30 days from the date of actual delivery of the goods or services.…’

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

13BFF, a company incorporated under Spanish law operating in the debt collection sector, acquired debts owed to 21 undertakings in respect of remuneration for the supply, between 2014 and 2017, of goods and services to medical centres under the control of the regional authority.

14On 31 May 2019, BFF claimed payment from that authority of amounts corresponding to the principal sum plus default interest, as well as EUR 40 in respect of recovery costs for each of the unpaid invoices, in accordance with Article 8 of Law 3/2004.

15As the regional authority did not respond to that claim, BFF first brought administrative proceedings before it, followed by judicial proceedings before the Juzgado de lo Contencioso-Administrativo no 2 de Valladolid (Administrative Court No 2, Valladolid, Spain), the referring court, seeking an order requiring that authority pay it, inter alia, a principal sum of EUR 51 610.67 plus default interest, EUR 40 in respect of recovery costs for each of the unpaid invoices, and an amount of EUR 43 626.79 in respect of statutory interest.

16First of all, the referring court raises the question of the interpretation of Article 6 of Directive 2011/7 in order to determine whether, where a claim covering a set of overdue invoices is submitted, the fixed sum of EUR 40 referred to in that provision must be paid for each invoice or for each claim.

17Next, that court is unsure about the compatibility with Directive 2011/7 of a rule of national law which lays down, for all situations and for all types of contracts, a payment period of 60 days, consisting of an initial period of 30 days for acceptance of the goods and services the supply of which is the subject of those contracts followed by an additional 30 days for payment.

18Finally, the referring court considers it necessary to ascertain whether Article 2(8) of Directive 2011/7 allows account to be taken, for the purpose of calculating interest for late payment by the debtor, of the amount of VAT specified in the overdue invoice, including where, on the date on which late payment occurs, the creditor liable for tax has not yet paid that amount to the tax authorities.

19In those circumstances, the Juzgado de lo Contencioso-Administrativo no 2 de Valladolid (Administrative Court No 2, Valladolid) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘In the light of [Article] 4(1), [Article] 6, and [Article] 7(2) and (3) of [Directive 2011/7]:(1) Is Article 6 of the directive to be interpreted as meaning that the sum of EUR 40 applies per invoice in all circumstances, provided that the creditor has individually identified the invoices in his or her claims before the administrative authorities and the administrative courts, or does the sum of EUR 40 apply per invoice in all circumstances, even if joint and general claims have been lodged?(2) How must Article 198(4) of Law 9/2017 [which lays down] a payment period of 60 days in all circumstances and for all contracts, providing for an initial period of 30 days for approval and another, additional period of 30 days for payment, be interpreted, [in the light of] [recital] 23 of the directive …?(3) How is Article 2 of the directive to be interpreted? Does the interpretation of the directive support the conclusion that the basis for calculating late-payment interest recognised in the directive includes the VAT due on the service provided, the amount of which is included in the invoice? Or is it necessary to identify and determine the time when the contractor paid the tax to the tax administrative authority?’

Consideration of the questions referred

Preliminary observations

20As a preliminary point, it is necessary to determine whether a situation in which a debt collection agency, after purchasing debts not paid on time by a public authority to the assignor undertakings, claims payment of those debts from that public authority by judicial channels falls within the material scope of Directive 2011/7.

21In that regard, it should be recalled, first, that, under Article 1(2) of Directive 2011/7, that directive is to apply to all payments made as remuneration for ‘commercial transactions’ and, second, that that concept is defined broadly in Article 2(1) of the directive as ‘transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration’.

22In order for a transaction to be classified as a ‘commercial transaction’ within the meaning of the latter provision, it must therefore satisfy two conditions. First, it must be carried out either between undertakings or between undertakings and public authorities. Second, it must lead to the delivery of goods or the provision of services for remuneration (judgment of 13 January 2022, New Media Development & Hotel Services, C‑327/20, EU:C:2022:23, paragraph 32 and the case-law cited).

23In the present case, it is common ground that the debts claimed relate to remuneration not paid on time by the regional authority, a ‘public authority’ within the meaning of Article 2(2) of Directive 2011/7, in return for the supply of goods and services by the assignor undertakings, and, therefore, that they relate to ‘commercial transactions’ within the meaning of Article 2(1) of that directive.

24The assignment of those debts and all the associated rights to a debt collection agency – to which a creditor may have recourse following a debtor’s late payment, as expressly provided for in Article 6(3) of Directive 2011/7 – is part of the extension of the initial commercial transactions, as the Advocate General observed in point 16 of his Opinion.

25Therefore, a situation such as that at issue in the main proceedings falls within the material scope of Directive 2011/7.

The first question

26By its first question, the referring court asks, in essence, whether Article 6 of Directive 2011/7 must be interpreted as meaning that the fixed minimum sum of EUR 40 to compensate the creditor for recovery costs incurred due to the debtor’s late payment is payable for each commercial transaction not remunerated on time and certified by an invoice, including where that invoice is the subject, together with other invoices, of a single administrative or judicial claim, and whether, in those circumstances, the creditor is required to submit the invoice corresponding to each unremunerated commercial transaction.

27In that regard, it should be recalled, in the first place, that Article 6(1) of Directive 2011/7 requires Member States to ensure that, where interest for late payment becomes payable in commercial transactions, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40 as compensation for recovery costs. Furthermore, under Article 6(2), Member States are required to ensure that that fixed minimum sum is payable automatically, even in the absence of a reminder sent to the debtor, and that such a sum is intended to compensate the creditor for the recovery costs incurred. Moreover, Article 6(3) confers on the creditor the right to obtain from the debtor, in addition to the fixed minimum sum of EUR 40, reasonable compensation for any recovery costs exceeding that fixed sum and incurred due to the debtor’s late payment.

28The concept of ‘late payment’ referred to in Article 6(1) and (3) of Directive 2011/7, as the legal basis not only for interest but also for the fixed minimum sum of EUR 40, is defined in Article 2(4) of that directive as any payment not made within the contractual or statutory period of payment. Since that directive covers, in accordance with Article 1(2) thereof, ‘all payments made as remuneration for commercial transactions’, the concept of ‘late payment’ is applicable, as the Advocate General noted in point 28 of his Opinion, to each commercial transaction considered individually.

29Directive 2011/7 thus establishes a link between the fixed minimum sum provided for in Article 6(1) and each commercial transaction not remunerated on time and certified by an invoice or equivalent request for payment. As stated in recital 18 of that directive, invoices trigger requests for payment and are therefore important documents in the chain of commercial transactions, particularly for determining payment deadlines.

30In the second place, it should be noted that Article 6(1) of Directive 2011/7 sets out the conditions for entitlement to the fixed minimum sum of EUR 40 by referring, as regards commercial transactions between undertakings and public authorities, to the conditions for entitlement to interest for late payment, laid down in Article 4 of that directive.

31Under paragraph 1 of Article 4, Member States are to ensure that, in such commercial transactions, a creditor who has met his or her obligations, and who has not received the amount owed on time, has the right to obtain, upon expiry of the period laid down in paragraphs 3, 4 and 6 of that article, statutory interest for late payment, without the necessity of a reminder, unless the debtor is not responsible for the delay (judgment of 16 February 2017, IOS Finance EFC, C‑555/14, EU:C:2017:121, paragraph 27).

32It follows from those considerations, first, that the right to claim statutory interest for late payment and the right to the fixed minimum sum provided for in Article 6(1) of Directive 2011/7 arise from a ‘late payment’, within the meaning of Article 2(4) of that directive, and are therefore linked to individual ‘commercial transactions’. Second, that statutory interest, like that fixed sum, is to become payable automatically upon expiry of the payment period laid down in paragraphs 3, 4 and 6 of Article 4 of Directive 2011/7, provided that the conditions set out in paragraph 1 of that article are satisfied. Recital 17 of that directive states that ‘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’.

33There is nothing in the wording of Article 4(1) of Directive 2011/7 to suggest that the creditor’s decision to submit to the same debtor a single claim covering several overdue invoices is liable to alter the conditions for entitlement to statutory interest for late payment laid down in that provision, or the conditions for entitlement to the fixed minimum sum of EUR 40 provided for in Article 6(1) of that directive. On the contrary, the fact that that statutory interest and that fixed sum are payable automatically, ‘without the necessity of a reminder’, presupposes that the creditor’s decisions as to how to recover unpaid debts are irrelevant for the purposes of his or her entitlement to both statutory interest and the fixed sum.

34Accordingly, it follows from a literal and contextual interpretation of that provision that the fixed minimum sum of EUR 40 as compensation for recovery costs is payable to a creditor who has fulfilled his or her obligations in respect of each overdue payment corresponding to remuneration for a commercial transaction certified in an invoice or equivalent request for payment, unless the debtor is not responsible for the delay.

35In the third place, that interpretation of Article 6 of Directive 2011/7 is confirmed by the aim of that directive. According to Article 1(1) thereof, read in the light of recital 3, that directive seeks to combat late payment in commercial transactions due to the negative effects of such late payment on undertakings’ liquidity and on their competitiveness and profitability.

36Thus, Directive 2011/7 is intended not only to discourage late payment, by preventing it being financially attractive to debtors on account of the low or lack of interest charged in such a situation, but also to provide effective protection for creditors against such late payment, by ensuring that they have access to the fullest possible compensation for recovery costs incurred (see, to that effect, judgment of 13 September 2018, Česká pojišťovna, C‑287/17, EU:C:2018:707, paragraphs 25 and 26 and the case-law cited). Recital 19 of that directive states that recovery costs should also include the recovery of administrative costs and compensation for internal costs incurred due to late payment and that compensation in the form of a fixed sum should aim at limiting the administrative and internal costs linked to the recovery.

37From that point of view, the submission of a single payment claim covering several commercial transactions not remunerated on time and duly certified by invoices or equivalent requests for payment cannot have the effect of reducing the fixed minimum sum payable as compensation for recovery costs for each late payment. First of all, such a reduction would effectively negate the effectiveness of Article 6 of that directive, the objective of which is, as stated in the preceding paragraph, not only to discourage late payment but also to provide compensation ‘for the creditor’s own recovery costs’, costs which tend to increase in proportion to the number of payments and amounts which the debtor has not made or paid on time. Next, such a reduction would be tantamount to granting the debtor a derogation from the entitlement to the fixed sum referred to in Article 6(1) of that directive, without any ‘objective reason’ for doing so, in breach of point (c) of the second subparagraph of Article 7(1) thereof. Lastly, that reduction would effectively relieve the debtor of part of the financial burden flowing from his or her obligation to pay, in respect of each overdue invoice, the fixed sum of EUR 40 provided for in Article 6(1).

38That interpretation is not called into question by the Spanish Government’s argument that, since the compensation provided for in Article 6(3) of Directive 2011/7 must be ‘reasonable’, the creditor cannot rely on that article to claim a fixed minimum sum of EUR 40 for each invoice included in a single claim, since that would be on a par with awarding the creditor repeated and excessive compensation for the costs associated with that claim.

39The right to ‘reasonable’ compensation provided for in Article 6(3) of Directive 2011/7 ‘for any recovery costs exceeding that fixed sum and incurred due to the debtor’s late payment’ covers recovery costs, whatever they may be, which exceed the minimum sum of EUR 40 to which the creditor is automatically entitled under Article 6(1) of that directive, where interest for late payment becomes payable in a commercial transaction, in accordance with Article 3 or Article 4 of that directive. Such compensation cannot therefore cover either the part of those costs which is already covered by the fixed minimum sum of EUR 40 or costs which appear to be excessive in the light of the facts of the case in point as a whole (see, to that effect, judgment of 13 September 2018, Česká pojišťovna, C‑287/17, EU:C:2018:707, paragraphs 22 and 30).

40Thus, Article 6(3) of Directive 2011/7 cannot be relied on to limit the creditor’s right to receive the fixed sum provided for in Article 6(1) of that directive. However, it is possible to take into consideration, subject to the limits set out in the preceding paragraph, the fact that the remuneration for commercial transactions which that debtor did not pay on time gave rise to a single claim, for the purpose of assessing the reasonableness of the compensation for other recovery costs incurred due to the debtor’s late payment.

41In those circumstances, to interpret Article 6 of Directive 2011/7 as meaning that the fixed minimum sum is payable for each commercial transaction not remunerated on time and certified by an invoice, where that invoice is submitted, together with other invoices, in a single administrative or judicial claim, is not tantamount to imposing a penalty on the debtor. Such a claim must, nevertheless, make it possible to establish a link between each of the invoices which it covers and the unremunerated commercial transactions concerned.

42In the light of the foregoing, the answer to the first question is that Article 6 of Directive 2011/7 must be interpreted as meaning that the fixed minimum sum of EUR 40 to compensate the creditor for recovery costs incurred due to the debtor’s late payment is payable for each commercial transaction not remunerated on time and certified by an invoice, including where that invoice is submitted, together with other invoices, in a single administrative or judicial claim.

The second question

43In view of the fact that, in proceedings under Article 267 TFEU, the Court does not have jurisdiction to interpret national legislative or regulatory provisions (see, to that effect, judgment of 11 June 2020, Prokuratura Rejonowa w Słupsku, C‑634/18, EU:C:2020:455, paragraph 18 and the case-law cited), the second question must be construed as seeking, in essence, to determine whether Article 4(3) to (6) of Directive 2011/7 must be interpreted as precluding national legislation which lays down, in general terms, for all commercial transactions between undertakings and public authorities, a maximum payment period of 60 calendar days consisting of an initial period of 30 days for a procedure of acceptance or verification of the conformity of the goods or services supplied with the contract, followed by an additional period of 30 days for payment of the agreed price.

44In that regard, it should be recalled, in the first place, that Article 4(3)(a) of Directive 2011/7 requires Member States to ensure, in commercial transactions where the debtor is a public authority, that the period for payment does not exceed 30 calendar days calculated from the occurrence of the factual circumstances listed, in particular, in point (iv) thereof.

45In the second place, under Article 4(3)(a)(iv) of Directive 2011/7, ‘where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or in the contract and if the debtor receives the invoice or the equivalent request for payment earlier or on the date on which such acceptance or verification takes place’, the maximum payment period of 30 calendar days is to be calculated from the date of that acceptance or verification.

46Article 4(5) of Directive 2011/7, read in conjunction with recital 26 thereof, requires Member States to ensure that the maximum duration of a procedure of acceptance or verification referred to in Article 4(3)(a)(iv) does not exceed 30 calendar days from the date of receipt of the goods or services, unless otherwise agreed in the contract and any tender documents and provided it is not grossly unfair to the creditor within the meaning of Article 7 of Directive 2011/7.

47It is thus apparent from those combined provisions that, first, Directive 2011/7 does not view the procedure of acceptance or verification as an integral part of commercial transactions between public authorities and undertakings. Second, where that procedure ‘is provided for by statute or in the contract’, its maximum period is 30 calendar days, which may be exceeded only exceptionally under the conditions laid down in Article 4(5) of that directive.

48In the third place, it follows from Article 4(6) of Directive 2011/7, read in the light of recital 23 thereof, that, in order for the general period for payment of 30 days to be extended, such an extension must be expressly agreed in the contract and must be objectively justified in the light of the particular nature or features of the contract. Once extended, that period may not, under any circumstances, exceed 60 calendar days.

49Moreover, where a public authority carries out economic activities of an industrial or commercial nature by offering goods and services or providing healthcare, Member States may, in accordance with points (a) and (b) of the first subparagraph of Article 4(4) of that directive, extend the payment period up to a maximum of 60 calendar days.

50As the Advocate General observed in point 47 of his Opinion, it therefore follows from Article 4(3) to (6) of Directive 2011/7 that the application to commercial transactions between undertakings and public authorities of a payment period exceeding 30 calendar days, up to a maximum of 60 calendar days, is exceptional and must be limited to certain well-defined cases, including, in particular, those expressly referred to in points (a) and (b) of the first subparagraph of Article 4(4) (see, to that effect, judgment of 28 January 2020, Commission v Italy (Directive combating late payment), C‑122/18, EU:C:2020:41, paragraph 44).

51That literal and contextual interpretation of Article 4 of Directive 2011/7 is confirmed by the objectives pursued by that directive, in particular that of imposing increased obligations on Member States for public authorities as regards their transactions with undertakings. As is apparent from reading recitals 3, 9 and 23 of that directive together, those public authorities, which make a considerable number of payments to undertakings, benefit from more secure, predictable and continuous revenue streams than undertakings, can obtain financing on more attractive conditions than undertakings and depend less on stable commercial relationships for the achievement of their aims than undertakings. Moreover, long payment periods in favour of those authorities, like late payments, lead to unjustified costs for those undertakings, aggravating their liquidity constraints and complicating their financial management, over and above the fact that they are also detrimental to the competitiveness and profitability of those undertakings, as they have to obtain external financing because of those delays in payment (see, to that effect, judgment of 28 January 2020, Commission v Italy (Directive combating late payment), C‑122/18, EU:C:2020:41, paragraphs 46 and 47).

52In the light of those factors, Article 4 of Directive 2011/7 must be interpreted as meaning that the establishment by a Member State of a maximum payment period of 60 calendar days for transactions between undertakings and public authorities is permitted only under the conditions and subject to the limits laid down in that article and referred to in paragraphs 47 to 49 of this judgment.

53In the light of the foregoing, the answer to the second question is that Article 4(3) to (6) of Directive 2011/7 must be interpreted as precluding national legislation which lays down, in general terms, for all commercial transactions between undertakings and public authorities, a maximum payment period of 60 calendar days, including where that period consists of an initial period of 30 days for a procedure of acceptance or verification of the conformity of the goods or services supplied with the contract, followed by an additional period of 30 days for payment of the agreed price.

The third question

54By its third question, the referring court asks, in essence, whether Article 2(8) of Directive 2011/7 must be interpreted as meaning that the inclusion, under the ‘amount due’ defined in that provision, of the amount of VAT specified in the invoice or the equivalent request for payment depends on whether, on the date on which late payment occurs, the creditor liable for tax has already paid that amount to the tax authorities.

55Article 2(8) of Directive 2011/7 defines ‘amount due’ as ‘the principal sum which should have been paid within the contractual or statutory period of payment, including the applicable taxes, duties, levies or charges specified in the invoice or the equivalent request for payment’.

56As regards the literal interpretation of Article 2(8) of Directive 2011/7, it should be noted, first, that the use of the expression ‘including the applicable taxes’ implies that the concept of ‘amount due’ must necessarily include the amount of VAT on goods supplied or services provided. Second, the use of the expression ‘specified in the invoice or the equivalent request for payment’ shows that the amount of VAT is that indicated in the invoice or the equivalent request for payment, irrespective of how or when VAT is paid by the taxable person to the tax authorities.

57It follows that the concept of ‘amount due’ does not draw a distinction based on the date on which the taxable person fulfils his or her obligation to pay to the tax authorities the amount of VAT corresponding to the goods supplied or the services provided, or based on the manner in which that amount is paid to the tax authorities.

58That interpretation is borne out by Article 220 of Directive 2006/112, which governs the issuing of invoices and requires taxable persons to ensure that an invoice is issued for supplies of goods or services made to another taxable person or to a non-taxable legal person. Article 226 of that directive lists the details which must appear in invoices issued, including the amount of VAT payable. Those provisions thus require the taxable person to state the amount of VAT payable in the invoice issued, irrespective of how or when the tax due is paid to the tax authorities.

59In the light of the foregoing, the answer to the third question is that Article 2(8) of Directive 2011/7 must be interpreted as meaning that the inclusion, under the ‘amount due’ defined in that provision, of the amount of VAT specified in the invoice or the equivalent request for payment does not depend on whether, on the date on which late payment occurs, the taxable person has already paid that amount to the tax authorities.

Costs

60Since 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.

Operative part

On those grounds, the Court (Third Chamber) hereby rules:

1.Article 6 of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactionsmust be interpreted as meaning that the fixed minimum sum of EUR 40 to compensate the creditor for recovery costs incurred due to the debtor’s late payment is payable for each commercial transaction not remunerated on time and certified by an invoice, including where that invoice is submitted, together with other invoices, in a single administrative or judicial claim.

2.Article 4(3) to (6) of Directive 2011/7must be interpreted as precluding national legislation which lays down, in general terms, for all commercial transactions between undertakings and public authorities, a maximum payment period of 60 calendar days, including where that period consists of an initial period of 30 days for a procedure of acceptance or verification of the conformity of the goods or services supplied with the contract, followed by an additional period of 30 days for payment of the agreed price.

3.Article 2(8) of Directive 2011/7must be interpreted as meaning that the inclusion, under the ‘amount due’ defined in that provision, of the amount of value added tax specified in the invoice or the equivalent request for payment does not depend on whether, on the date on which late payment occurs, the taxable person has already paid that amount to the tax authorities.