EuGH · C-197/24

JUDGMENT OF THE COURT (Fourth Chamber) 13 November 2025 ( *1 ) (Reference for a preliminary ruling – Directive 2011/7/EU – Combating late payment in commercial transactions – Scope – Article 2(1) and (3) – Concept of ‘undertaking’ – Concept of ‘commercial transaction’ – Contract for the provision of legal services with a view to setting up a commercial company – Directive 93/13/EEC – Article 2(b) – Concept of ‘consumer’ – Natural person who engaged the services of a lawyer with a view to setting up a commercial company) In Case C‑197/24 [Šiľarský ( i )], REQUEST for a preliminary ruling under Article 267 TFEU from the Mestský súd Bratislava IV (City Court, Bratislava IV, Slovak Republic), made by decision of 13 February 2024, received at the Court on 12 March 2024, in the proceedings AK v RU, THE COURT (Fourth Chamber), composed of I. Jarukaitis, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Fourth Chamber, M. Condinanzi, N. Jääskinen, and R. Frendo (Rapporteur), Judges, Advocate General: D. Spielmann, Registrar: A. Calot Escobar, having regard to the written procedure, after considering the observations submitted on behalf of: – the Slovak Government, by E.V. Larišová and A. Lukáčik, acting as Agents, – the European Commission, by P. Kienapfel, R. Lindenthal and D. Milanowska, acting as Agents, after hearing the Opinion of the Advocate General at the sitting on 30 April 2025, gives the following Judgment 1 This request for a preliminary ruling concerns the interpretation of Article 1(2), Article 2(1) and (3) and 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 transactions (OJ 2011 L 48, p. 1), and of Article 2(b) and Article 8 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29). 2 The request has been made in proceedings between AK, a company providing legal services, and RU, a natural person, concerning the payment of fees owing for legal services provided. Legal context European Union law Directive 2011/7 3 Recital 8 of Directive 2011/7 states: ‘The scope of this Directive should be limited to payments made as remuneration for commercial transactions. This Directive should not regulate transactions with consumers …’. 4 Article 1 of that directive, headed ‘Subject matter and scope’, provides, in paragraph 2 thereof: ‘This Directive shall apply to all payments made as remuneration for commercial transactions.’ 5 As set out in Article 2 of that directive, headed ‘Definitions’: ‘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; …’ 6 Article 6 of that same directive, headed ‘Compensation for recovery costs’, provides in paragraph 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.’ Directive 93/13 7 Article 1(1) of Directive 93/13 provides: ‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.’ 8 As set out in Article 2(b) of that directive: ‘For the purposes of this Directive: … (b) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession’. 9 Article 8 of that directive provides: ‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’ Slovak law The Commercial Code 10 Paragraph 369c of zákon č. 513/1991 Zb. Obchodný zákonník (Law No 513/1991 establishing the Commercial Code), in the version applicable to the dispute in the main proceedings (‘the Commercial Code’), provides, in paragraphs 1 and 2: ‘(1) In the event of default by the debtor, the creditor shall … be entitled to a fixed amount of compensation for recovery costs, without the need for separate notification. The amount of the fixed compensation for recovery costs shall be determined by the Government of the Slovak Republic by a regulation. (2) Paragraph 369c(1) shall not apply if the obligation arises from a consumer contract and the debtor is a consumer’. The Civil Code 11 Paragraph 52 of zákon č. 40/1964 Zb. Občiansky zákonník (Law No 40/1964 establishing the Civil Code) of 26 February 1964, in the version applicable to the dispute in the main proceedings (‘the Civil Code’), provides: ‘(1) “Consumer contract” means any contract, regardless of its legal form, concluded between a seller or supplier and a consumer. (2) Provisions concerning consumer contracts and all other provisions governing the legal relations into which a consumer has entered shall always be applied to the advantage of the party to the contract who is a consumer. Different contractual arrangements or agreements whose content or purpose is to circumvent those provisions shall be invalid. The provisions of the Civil Code shall always prevail in all legal relations into which a consumer has entered, even where the provisions of commercial law would otherwise apply. (3) A “seller or supplier” is a person who, when concluding and performing a consumer contract, acts in the course of his or her trade or of another commercial activity. (4) A “consumer” is a natural person who, when concluding and performing a consumer contract, does not act in the course of his or her trade or of another commercial activity.’ Law on the profession of lawyer 12 Paragraph 18(4) of zákon č. 586/2003 Z. z. o advokácii a o zmene a doplnení zákona č. 455/1991 Zb. o živnostenskom podnikaní (živnostenský zákon) v znení neskorších predpisov (Law No 586/2003 on the profession of lawyer and amending and supplementing Law No 455/1991 on self-employment (Law on self-employment)), in the version applicable to the dispute in the main proceedings (‘Law on the profession of lawyer’), provides: ‘In the course of providing legal services, a lawyer is obliged to inform the client, who is a consumer of legal services, of the amount of the remuneration for the act of providing legal services before that act commences. Otherwise, he or she shall not be entitled to remuneration …’ The dispute in the main proceedings and the questions referred for a preliminary ruling 13 AK, a company which provides legal services, brought an action before the Mestský súd Bratislava IV (City Court, Bratislava IV, Slovak Republic), which is the referring court, seeking an order that RU, a natural person, pay the fees owing for legal services provided and a fixed sum of EUR 40 as compensation for recovery costs, in accordance with Paragraph 369c of the Commercial Code, which implements Article 6 of Directive 2011/7. 14 It is apparent from the order for reference that in 2022 RU, who wished to set up a limited liability company governed by Slovak law, of which he would become a co-founder, member and managing director, contacted a lawyer who subsequently became a partner at the applicant in the main proceedings. A contract was concluded orally for the provision of legal services in return for a fixed fee. 15 According to the referring court, draft company statutes and other documents were drawn up and sent to RU, together with an invoice, which was not settled by its due date, 17 January 2023. 16 In the main proceedings, RU disputes that he entered into a contract for the provision of legal services and that there was an agreement on remuneration for those services, stating that the company’s statutes and the other documentation were sent to him without a prior request to that effect. He also contends that, on account of his status as a consumer, the dispute should be governed by the provisions of civil law, whereas AK submits that the dispute is a commercial dispute governed by the provisions of commercial law. 17 In those circumstances, the Mestský súd Bratislava IV (City Court, Bratislava IV) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 1(2) of Directive [2011/7], in conjunction with Article 2(1) and (3) and [Article] 6(1) thereof, be interpreted as meaning that (i) a natural person who, in a case such as that in the main proceedings, avails him or herself of the legal services of a lawyer with a view to founding a commercial company, in which he or she is to become a managing director and one of the two founders and members, is to be regarded as an “undertaking”, and (ii) a transaction which, in a case such as that in the main proceedings, leads to the provision of services by a lawyer to such a person with a view to founding a commercial company, is to be regarded as a “commercial transaction”? (2) If the answer to the first question is in the negative, must the term “consumer” used in Article 2(b) of [Directive 93/13], in conjunction with Article 8 thereof, be interpreted as meaning that, in a case such as that in the main proceedings, it also encompasses a natural person against whom a claim is made under a contract for the provision of legal services, where the object of that contract was the provision of services with a view to founding a company and [that natural person] was to become a managing director and one of the two founders and members of that company?’ Consideration of the questions referred The first question 18 It should be pointed out that the action brought by AK is based, in particular, on Paragraph 369c of the Commercial Code, which transposes into Slovak law Article 6(1) of Directive 2011/7, referred to in the first question. The latter 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. 19 Nevertheless, it is apparent from the request for a preliminary ruling that the referring court’s questions relate more specifically to the concepts of ‘commercial transaction’ and ‘undertaking’, within the meaning of that directive. 20 Therefore, it must be held that, by its first question, the referring court is seeking to ascertain, in essence, whether Article 1(2) of Directive 2011/7, read in conjunction with Article 2(1) and (3) of that directive, must be interpreted as meaning that the fact that a natural person has engaged the services of a lawyer with a view to the formation of a commercial company, of which he or she was to become a co-founder, member and managing director, is sufficient in itself for that person to be classified as an ‘undertaking’ and, accordingly, for the transaction concluded with that lawyer to be classified as ‘commercial’, within the meaning of those provisions. 21 As a preliminary point, it should be borne in mind that, in accordance with Article 1(2) of Directive 2011/7, that directive applies to all payments made as remuneration for ‘commercial transactions’. That concept is defined in Article 2(1) of that directive as covering ‘transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration’. The latter provision must be read in the light of recital 8 of that directive, which specifies that transactions with consumers are excluded from its scope (see, to that effect, judgments of 15 December 2016, Nemec, C‑256/15, EU:C:2016:954, paragraph 30, and of 13 January 2022, New Media Development & Hotel Services, C‑327/20, EU:C:2022:23, paragraph 31 and the case-law cited). 22 Under Article 2(3) of Directive 2011/7, 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, constitutes an ‘undertaking’, within the meaning thereof. 23 It should also be noted that Directive 2011/7 replaced 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). The Court has previously held, with regard to the provisions of the latter directive which are equivalent to those referred to in paragraphs 21 and 22 of the present judgment, that the requirement that a person acts as an organisation within the framework of an independent economic or professional activity means that that person, whatever his or her form and legal status may be under national law, must exercise that activity in a structured and stable manner. The activity cannot be limited to an isolated one-off supply, and the transaction in question must form part of that activity (see, to that effect, judgment of 15 December 2016, Nemec, C‑256/15, EU:C:2016:954, paragraphs 33 and 34). 24 For the purposes of such a determination, all the circumstances surrounding the transaction in question must be taken into consideration (see, to that effect, judgment of 15 December 2016, Nemec, C‑256/15, EU:C:2016:954, paragraph 41). 25 In the present case, it is not apparent from the order for reference that RU, who is a natural person, carried on in a structured and stable manner an independent economic or professional activity of which the transaction, by which he engaged the services of a lawyer, formed part. 26 That consideration also precludes the hypothesis, raised by the referring court, that RU could be classified as an undertaking by virtue of the fact that he sought legal services in anticipation of a future professional activity. The requirement that the transaction in question must form part of the independent economic or professional activity of the person in question must be assessed at the time that transaction is concluded (see, to that effect, judgment of 14 November 2024, Agenciart – Management Artístico, C‑643/23, EU:C:2024:959, paragraph 35). In that regard, the possibility that the status of that person may change, in particular as a result of the past transaction, is not such as to alter the status of that person as at the date on which the transaction was concluded (see, to that effect, as regards Directive 93/13, judgment of 20 March 2025, Arce, C‑365/23, EU:C:2025:192, paragraph 51). 27 Furthermore, while it follows from the case-law referred to in paragraph 24 above that the link between the transaction at issue and the aim pursued by the person concluding it may be one of the factors to be taken into consideration in order to determine whether Directive 2011/7 is applicable in a given case, it cannot, on its own, suffice to support the finding that RU acted as an ‘undertaking’, within the meaning of Article 2(3) of Directive 2011/7 when he concluded the transaction at issue in the main proceedings. 28 In that regard, the referring court questions whether the Court’s line of authority deriving from the judgment of 3 July 1997, Benincasa (C‑269/95, EU:C:1997:337), and the judgment of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165), is relevant for the purposes of the present case, in so far as, in the cases which gave rise to those judgments, certain factual circumstances had been taken into account in order to reach the conclusion that the person concerned was engaged in a commercial activity. 29 It should be borne in mind, however, that those two cases concerned the interpretation of the rules of jurisdiction in the area of consumer contracts and that, in those cases, the Court interpreted the concept of ‘consumer’ within the meaning of those rules of jurisdiction. While recital 8 of Directive 2011/7 states that transactions with consumers do not come within the scope of that directive, the applicability of that directive is defined positively, in Article 1 thereof, by reference to ‘commercial transactions’ between ‘undertakings’. 30 Furthermore, as the Advocate General observed, in essence, in point 40 of his Opinion, Directive 2011/7 seeks to discourage late payment and to protect creditors against such late payment effectively (see, to that effect, judgment of 12 December 2024, Tusnia, C‑725/23, EU:C:2024:1015, paragraph 29 and the case-law cited). Those objectives are therefore different from that pursued by the rules of jurisdiction interpreted in the judgments cited in paragraph 28 of the present judgment. 31 Consequently, it must be concluded that the findings made by the Court in those judgments cannot be applied to the interpretation of the concept of ‘undertaking’, within the meaning of Directive 2011/7. 32 In the light of the foregoing considerations, the answer to the first question is that Article 1(2) of Directive 2011/7, read in conjunction with Article 2(1) and (3) of that directive, must be interpreted as meaning that the fact that a natural person has engaged the services of a lawyer with a view to the formation of a commercial company, of which he or she was to become a co-founder, member and managing director, cannot, in itself, suffice to classify that person as an ‘undertaking’ and, accordingly, the transaction concluded with that lawyer as ‘commercial’, within the meaning of those provisions. The second question 33 By its second question, the referring court asks, in essence, whether Article 2(b) of Directive 93/13, read in conjunction with Article 8 of that directive, must be interpreted as meaning that a natural person against whom a claim is made under a contract for the provision of legal services, the object of which is the formation of a commercial company of which that person was to become a co-founder, member and managing director, comes within the concept of ‘consumer’, within the meaning of that directive. The jurisdiction of the Court 34 The referring court states that the case in the main proceedings does not concern the issue of unfair terms contained in a contract between a seller or supplier and a consumer. It considers, however, that the interpretation of the provisions of Directive 93/13 sought is necessary, in the event that the defendant natural person in the main proceedings does not come within the concept of ‘undertaking’, within the meaning of Article 2(3) of Directive 2011/7, given that the concept of ‘consumer’ referred to in Paragraph 52(4) of the Civil Code, which transposes Article 2(b) of Directive 93/13 into Slovak law, is reproduced in Paragraph 18(4) of the Law on the profession of lawyer, which is at issue in the dispute in the main proceedings. 35 In that regard, it should be borne in mind that it is settled case-law that the Court has jurisdiction to give a preliminary ruling on questions concerning provisions of EU law in situations in which, even if the facts of the case in the main proceedings do not fall within the field of application of EU law directly, provisions of EU law have been rendered applicable by domestic law due to a reference made by that law to the content of those provisions (judgments of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 34 and the case-law cited, and of 24 November 2022, Cafpi and Aviva assurances, C‑691/21, EU:C:2022:926, paragraph 30). 36 In such circumstances, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from EU law should be interpreted uniformly (judgments of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 35 and the case-law cited, and of 24 November 2022, Cafpi and Aviva assurances, C‑691/21, EU:C:2022:926, paragraph 31). 37 Thus, an interpretation by the Court of provisions of EU law in situations not falling within the scope of EU law is warranted where such provisions have been made applicable to such situations by national law directly and unconditionally, in order to ensure that those situations and situations falling within the scope of EU law are treated in the same way (judgments of 7 November 2018, K and B, C‑380/17, EU:C:2018:877, paragraph 36 and the case-law cited, and of 24 November 2022, Cafpi and Aviva assurances, C‑691/21, EU:C:2022:926, paragraph 32). 38 In the present case, the referring court, which alone has jurisdiction to interpret national law in the framework of the system of judicial cooperation established in Article 267 TFEU, states that the Slovak legislature decided to apply, directly and unconditionally, the concept of ‘consumer’ referred to in Paragraph 52(4) of the Civil Code also in the area of fees payable to lawyers, by means of Paragraph 18(4) of the Law on the profession of lawyer. For that reason, interpreting that concept is necessary to enable the referring court to resolve the dispute before it. 39 The referring court also states, first, that Paragraph 52(1) of the Civil Code, in common with Directive 93/13, applies to ‘any contract, regardless of its legal form, concluded between a seller or supplier and a consumer’ and, second, that Paragraph 52(4) of the Civil Code transposes Article 2(b) of Directive 93/13 into Slovak law by reproducing, in essence, the wording of that provision. 40 In those circumstances, it is clearly in the interest of the European Union that the Court rule on the interpretation sought. 41 Accordingly, it must be held that the Court has jurisdiction to answer the second question asked by the referring court. Substance 42 It should be noted at the outset that Article 8 of Directive 93/13 is intended to enable Member States, with due regard for the FEU Treaty, to afford the consumer concerned a higher level of protection through national provisions that are more stringent than those of that directive (see, to that effect, judgment of 21 September 2023, mBank (Polish register of unlawful terms), C‑139/22, EU:C:2023:692, paragraph 39). However, in the present case, the second question asked by the referring court concerns the definition of the concept of ‘consumer’ and not the assessment of whether the national provisions concerned are more stringent. 43 It follows that Article 8 of Directive 93/13 is not relevant for the purposes of providing a useful answer to the second question. 44 As regards Article 2(b) of that directive, that provision defines a ‘consumer’ as any natural person who, in contracts covered by that directive, is acting for purposes which are outside his or her trade, business or profession. 45 Thus, the status of the person concerned as a ‘consumer’ must be assessed by reference to a functional criterion, consisting in an assessment of whether the contractual relation at issue has arisen in the course of activities outside a trade, business or profession. The Court has also had occasion to state that the concept of ‘consumer’, within the meaning of Article 2(b) of Directive 93/13, is objective in nature and is distinct from the concrete knowledge the person in question may have, or from the information that person actually has (judgment of 8 June 2023, YYY. (Concept of consumer), C‑570/21, EU:C:2023:456, paragraph 30 and the case-law cited). 46 It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that Directive 93/13 defines the contracts to which it applies (judgment of 21 March 2019, Pouvin and Dijoux, C‑590/17, EU:C:2019:232, paragraph 23 and the case-law cited). 47 In the present case, as noted in paragraph 25 above, and subject to the verifications to be carried out by the referring court, none of the information provided by that court indicates that the defendant natural person in the main proceedings was, at the time the contract for the provision of legal services was concluded, engaged in an independent economic or professional activity of which that contract could have formed part. 48 That assessment cannot be invalidated by the fact that the aim pursued by RU was to engage in commercial activity. 49 The Court has previously held that the status of a person as ‘consumer’ within the meaning of Directive 93/13 must be assessed at the time when the contract in question is concluded (see, to that effect, judgment of 20 March 2025, Arce, C‑365/23, EU:C:2025:192, paragraph 49 and the case-law cited). 50 In that regard, the fact that the situation of the defendant natural person in the main proceedings was liable to change is not such as to alter the status he held on the date on which the contract at issue was concluded (see, to that effect, judgment of 20 March 2025, Arce, C‑365/23, EU:C:2025:192, paragraph 51). 51 In the light of all the foregoing considerations, the answer to the second question is that Article 2(b) of Directive 93/13 must be interpreted as meaning that a natural person who has concluded a contract for the provision of legal services with a view to the formation of a commercial company of which that person was to become a co-founder, member and managing director, comes within the concept of ‘consumer’, within the meaning of that provision, provided that, at the time the contract was concluded, that person was not engaged in an independent economic or professional activity of which that contract could have formed part. Costs 52 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 (Fourth Chamber) hereby rules: 1. Article 1(2) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, read in conjunction with Article 2(1) and (3) of that directive, must be interpreted as meaning that the fact that a natural person has engaged the services of a lawyer with a view to the formation of a commercial company, of which he or she was to become a co-founder, member and managing director, is not, in itself, sufficient to classify that person as an ‘undertaking’ and, accordingly, the transaction concluded with that lawyer as ‘commercial’, within the meaning of those provisions. 2. Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a natural person who has concluded a contract for the provision of legal services with a view to the formation of a commercial company of which he or she was to become a co-founder, member and managing director, comes within the concept of ‘consumer’, within the meaning of that provision, provided that, at the time the contract was concluded, that person was not engaged in an independent economic or professional activity of which that contract could have formed part. [Signatures] ( *1 ) Language of the case: Slovak. ( i ) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.