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However, it has brought further proceedings challenging the exclusion of interest and recovery costs, which it considers to be contrary to the Late Payments Directive.
In order to determine whether that argument is valid, the Juzgado Contencioso-Administrativo (Court for Contentious Administrative Proceedings) No 6, Murcia, seeks a preliminary ruling on the interpretation of that directive.
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Opinion of Advocate General Sharpston delivered on . Request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo n° 6 de Murcia.
…; 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 shall provide that an agreement on the date for payment or on the consequences of late payment which is not in line with the provisions of paragraphs 1(b) to (d) and 2 either shall not be enforceable or shall give rise to a claim for damages if, when all circumstances of the case, including good commercial practice and the nature of the product, are considered, it is grossly unfair to the creditor.
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the level of interest for late payment (“the statutory rate”), which the debtor is obliged to pay, shall be the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question (“the reference rate”), plus at least seven percentage points (“the margin”), unless otherwise specified in the contract.
In May 2014, IOS Finance brought proceedings before the Juzgado Contencioso-Administrativo No 6, Murcia (Court for Contentious Administrative Proceedings No 6, Murcia) claiming EUR 272771.03 in respect of interest for late payment and EUR 14256.35 in respect of compensation for recovery costs.
It argues that: (a) the right to receive interest for late payment and compensation for recovery costs cannot be waived and arises by operation of law as a result of the expiry of the deadline for payment without the administrative authority having paid the principal sum due; (b) Law 8/2013 is contrary to EU law, in so far as it provides that payment of the principal sum leads to extinguishment of the interest, legal costs and any other additional expenses; and (c) the Late Payments Directive is directly applicable in so far as it states that contractual terms and practices which exclude interest for late payment and compensation for recovery costs are grossly unfair.
) In September 2013, it claimed payment from the Health Service of: EUR 2780463.37 corresponding to the amount of the unpaid invoices in respect of which the right of recovery had been assigned to it; EUR 165164.24 in respect of interest for late payment accrued on the unpaid invoices as at 2 September 2013, without prejudice to the interest continuing to accrue; and EUR 14256.35 in respect of compensation for recovery costs. In December 2013, IOS Finance gave notice that it would bring an administrative action against the implied rejection of its request for payment.
Subsequently, however, it joined the extraordinary financing mechanism for payment of suppliers of the Autonomous Community of the Region of Murcia, in period 2, phase 3 of that mechanism as laid down in Law 8/2013, with the effects provided for therein.