European Parliament legislative resolution on the common position adopted by the Council with a view to adopting a European Parliament and Council directive on combating late payment in commercial transactions (8790/1/1999 - C5-0125/1999 - 1998/0099(COD))
18. 10. 2000 EN Official Journal of the European Communities C 296/173 Thursday 16 December 1999 Delivers a favourable opinion on the appointment of Mr Jan O. Karlsson to the office of Member of 1. the Court of Auditors; Instructs its President to forward this opinion to the Council and, for information, to the Court of 2. Auditors, the other institutions of the European Communities and the Audit Offices of the Member States. 2. Late payment in commercial transactions ***II A5-0099/1999 European Parliament legislative resolution on the common position adopted by the Council with a view to adopting a European Parliament and Council directive on combating late payment in com- mercial transactions (8790/1/1999 ’ C5-0125/1999 ’ 1998/0099(COD)) (Codecision procedure: second reading) The European Parliament, ( having regard to the Council common position (8790/1/1999 ( C5-0125/1999) (1), ( having regard to its position at first reading (2) on the Commission proposal to Parliament and the Council (COM(1998) 126) (3), ( having regard to the Commission’s amended proposal (COM(1998) 615) (4), ( having regard to Article 251(2) of the EC Treaty, ( having regard to Rule 80 of its Rules of Procedure, ( having regard to the recommendation for second reading of the Committee on Industry, External Trade, Research and Energy (A5-0099/1999), 1. 2. Amends the common position as follows; Instructs its President to forward its position to the Council and Commission. COMMON POSITION OF THE COUNCIL AMENDMENTS BY PARLIAMENT (Amendment 1) Recital 3a (new) (3a) On 29 May 1997 the Economic and Social Commit- tee adopted an opinion on the Commission’s Green Paper on Public Procurement in the European Union: Exploring the Way Forward (1), recommending maximum payment periods and interest on late payments by public authori- ties; (1) OJ C 287, 22. 9. 1997, p. 92. (1) OJ C 284, 6. 10. 1999, p. 1. (2) OJ C 313, 12. 10. 1998, p. 142. (3) OJ C 168, 3. 6. 1998, p. 13. (4) OJ C 374, 3. 12. 1998, p. 4. C 296/174 Official Journal of the European Communities EN 18. 10. 2000 Thursday 16 December 1999 COMMON POSITION OF THE COUNCIL AMENDMENTS BY PARLIAMENT (Amendment 2) Recital 6a (new) (6a) In the case of certain products, such as perishable foodstuffs, late payments are attributable not to real mar- ket requirements but rather to distortions of competition which should be corrected; (Amendment 3) Recital 6b (new) In some Member States contractual payment peri- (6b) ods differ significantly from the Community average; (Amendment 4) Recital 11 (11) This Directive should be limited to payments made as remuneration for commercial transactions and does not regu- late transactions with consumers, interest in connection with other payments, e. g. payments under the laws on cheques and bills of exchange, payments made as compensation for damages including payments from insurance companies; (11) This Directive should be limited to payments made as remuneration for commercial transactions and does not regu- late transactions with consumers, interest in connection with other payments, e. g. payments under the laws on cheques and bills of exchange, or payments made as compensation for damages; (Amendment 5) Recital 14 (14) Late payment constitutes a breach of contract which has been made financially attractive to debtors in most Member States by low interest rates on late payments and/or slow pro- cedures for redress; a decisive shift is necessary to reverse this trend and to ensure that the consequences of late payments are such as to discourage late payment; (14) Late payment constitutes a breach of contract which has been made financially attractive to debtors in most Member States by low interest rates on late payments and/or slow pro- cedures for redress; a decisive shift is necessary to reverse this trend and to ensure that the consequences of late payments are such as both to discourage late payments and to compensate creditors for the costs incurred; (Amendment 6) Recital 17a (new) (17a) The use of retention of title clauses as a means of speeding up payment is at present constrained by a num- ber of differences in national law; it is necessary to ensure that creditors are in a position to exercise the retention of title throughout the Community, using a single clause recognised by all Member States, and that excessive pay- ment periods and late payments in commercial transac- tions do not distort the functioning of the internal mar- ket; 18. 10. 2000 EN Official Journal of the European Communities C 296/175 COMMON POSITION OF THE COUNCIL Thursday 16 December 1999 AMENDMENTS BY PARLIAMENT (Amendment 7) Recital 17b (new) (17b) Public authorities handle a considerable volume of payments to businesses; strict payment discipline on the part of these authorities would have a beneficial trickle- down effect on the economy as a whole; with regard to public contracts, contracting enterprises in turn likewise delay payments to their suppliers and subcontractors, habitually imposing excessive payment periods ’ prac- tices which seriously damage the interests of many busi- nesses, especially SMEs; for payments executed by the Commission it has already been decided to give certain creditors the right to receive default interest on late pay- ments; (Amendment 8) Recital 18 (18) Article 4 of this Directive requires that the recovery pro- cedure for unchallenged claims be completed within a short period of time in conformity with national legislation, but does not require Member States to adopt a specific procedure or to amend their existing legal procedures in a specific way; (18) Article 4 of this Directive requires that the recovery pro- cedure for unchallenged claims be completed within a short period of time in conformity with national legislation; (Amendment 9) Recital 18a (new) It is necessary that this Directive address the pro- (18a) blem of long contractual payment periods; (Amendment 10) Recital 18b (new) (18b) The term ‘contracting authorities’ should corre- spond to the definition laid down in Directive 92/50/ EEC (1) and Directive 93/37/EEC (2) and should include, for the purposes of the present Directive, the ‘contracting entities’ as defined in Directive 93/38/EEC (3); (1) OJ L 209, 24. 7. 1992, p. 1. (2) OJ L 199, 9. 8. 1993, p. 54. (3) OJ L 199, 9. 8. 1993, p. 84. (Amendment 11) Article 2(2a) (new) 2a. ‘retention of title’ means the agreement, irrespective of any formal requirements, that the seller remains the owner of the goods in question until the price has been paid in full; the term ‘seller’ shall comprise the supplier of goods which are to be produced or manufactured; C 296/176 Official Journal of the European Communities EN 18. 10. 2000 Thursday 16 December 1999 COMMON POSITION OF THE COUNCIL AMENDMENTS BY PARLIAMENT (Amendment 12) Article 2(2b) (new) 2b. ‘interest rate applied by the European Central Bank to its main refinancing operations’ means the interest rate applied to such operations in the case of fixed rate tenders. In the event that a main refinancing operation was conducted according to a variable rate tender procedure, this interest rate refers to the mar- ginal interest rate which resulted from that tender. This applies both in the case of single rate and vari- able rate auctions; (Amendment 13) Article 2(3a) (new) 3a. ‘contracting authorities’ corresponds to the definition laid down in Directive 92/50/EEC and Directive 93/37/ EEC and includes the ‘contracting entities’ as defined in Directive 93/38/EEC (1). (1) OJ L 199, 9. 8. 1993, p. 84. (Amendment 14) Article 2(3b) (new) 3b. ‘public procurement contracts’ means contracts for pecuniary interest concluded in writing between a contracting authority within the meaning of point 3a and an undertaking which is not a contracting auth- ority. (Amendment 15) Article 3(1)(b) (b) if the date or period for payment is not fixed in the con- tract, interest shall become payable automatically without the necessity of a reminder: (i) 30 days following the date of receipt by the debtor of (ii) the invoice or an equivalent request for payment, or if the date of the receipt of the invoice or the equiva- lent request for payment is uncertain, 30 days after the date of receipt of the goods or services, or (iv) (iii) if the debtor receives the invoice or the equivalent request for payment earlier than the goods or the ser- vices, 30 days after the receipt of the goods or ser- vices, or if a procedure of acceptance or verification, by which the conformity of the goods or services with the con- tract 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 days after this latter date; (b) if the date or period for payment is not fixed in the con- tract, interest shall become payable automatically without the necessity of a reminder: (i) 21 days following the date of receipt by the debtor of (ii) the invoice or an equivalent request for payment, or if the date of the receipt of the invoice or the equiva- lent request for payment is uncertain, 21 days after the date of receipt of the goods or services, or (iv) (iii) if the debtor receives the invoice or the equivalent request for payment earlier than the goods or the ser- vices, 21 days after the receipt of the goods or ser- vices, or if a procedure of acceptance or verification, by which the conformity of the goods or services with the con- tract 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, 21 days after this latter date; 18. 10. 2000 EN Official Journal of the European Communities C 296/177 COMMON POSITION OF THE COUNCIL Thursday 16 December 1999 AMENDMENTS BY PARLIAMENT (Amendment 16) Article 3(1)(d) (d) 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 of the main refinancing facility of the European Central Bank (ECB) in the form of two-week-tenders at fixed interest rates in force on the first ECB business day of the half-year in question (‘the reference rate’), plus at least 6 percentage points (‘the margin’), unless otherwise speci- fied in the contract. For a Member State which is not par- ticipating in the third stage of Economic and Monetary Union, the reference rate referred to above shall be the equivalent rate set by its national central bank. In both cases, the reference rate in force on the first central bank business day of the half-year in question shall apply for the following 6 months. (d) 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 8 percentage points (‘the margin’), unless otherwise specified in the contract. For a Member State which is not participating in the third stage of Economic and Monetary Union, the reference rate referred to above shall be the equivalent rate set by its national central bank. In both cases, the reference rate in force on the first calendar day of the half-year in question shall apply for the following 6 months. (Amendment 17) Article 3(1)(da) (new) (da) in addition to the right to interest, the creditor shall be entitled to claim compensation from the debtor for the losses incurred through the latter’s late payment, including the following costs: (i) the cost of the creditor’s bank loans or overdraft, to the extent that this is not already fully com- pensated by the right to interest; (ii) the administrative costs of recovery within the creditor’s business; (iii) the costs of recovery through debt recovery agencies, and (iv) the costs of recovery through court proceedings. Member States may act to ensure that any claims for com- pensation under items (ii), (iii) and (iv) above are in rea- sonable proportion to the debt in question. (Amendment 19) Article 3(3) 3. Member States shall ensure 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 and 2 either shall not be enforceable or shall give rise to a claim for damages if, when all circumstances of including good commercial practice, are considered, it is grossly unfair If such an agreement to the creditor. is determined to be grossly unfair, the statutory terms will apply, unless the national courts determine different conditions which are fair. the case, 3. Member States shall ensure 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 con- sidered, it is grossly unfair to the creditor. In determining whether an agreement is grossly unfair to the creditor, it will be taken into account whether the debtor has any C 296/178 Official Journal of the European Communities EN 18. 10. 2000 Thursday 16 December 1999 COMMON POSITION OF THE COUNCIL AMENDMENTS BY PARLIAMENT objective reason to deviate from the provisions of para- graphs 1 (b) to (d) and 2 or whether the agreement mainly serves the purpose of procuring the debtor additional liquidity at the expense of the creditor. If such an agree- ment is determined to be grossly unfair, the statutory terms will apply, unless the national courts determine different condi- tions which are fair. 3a. Member States shall ensure that, in the interests of creditors and of competitors, adequate and effective means exist to prevent the continued use of terms which are grossly unfair within the meaning of paragraph 3. 3b. The means referred to in paragraph 3a shall include provisions whereby persons or organisations representing the interests of small and medium-sized enterprises, as defined in Commission Recommendation 96/280/EC (1), may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are grossly unfair within the meaning of paragraph 3, so that they can apply appropri- ate and effective means to prevent the continued use of such terms. 3c. With due regard for national laws, the legal reme- dies referred to in paragraph 3b may be directed sepa- rately or jointly against a number of buyers from the same economic sector or their associations who use or recommend the use of the same general contractual terms or similar terms. (1) OJ L 107, 30. 4. 1996, p. 4. (Amendment 20) Article 3a (new) Article 3a Retention of title 1. Member States shall ensure that the seller retains title to durable and/or capital goods if a retention of title clause has been agreed. Apart from an individual contract, such an agreement shall be considered valid if the reten- tion of title clause is contained in the seller’s standard contract, to which the buyer has not objected. No other formality shall be required. 2. Member States shall recognise the validity of the clauses in the Annex, or of clauses having equivalent effect. 3. Once the period for payment has passed without the buyer having paid, the seller may demand that the goods in question be returned to him. Member States shall pro- vide for retention of title to be enforceable against third parties, even in the case of bankruptcy of the debtor or in the case of any other procedure recognised as being simi- lar under the legislation of the Member States. No later 18. 10. 2000 EN Official Journal of the European Communities C 296/179 COMMON POSITION OF THE COUNCIL Thursday 16 December 1999 AMENDMENTS BY PARLIAMENT than when the buyer takes possession of the goods, he becomes responsible for any damage to or loss of the goods. 4. Member States may adopt provisions dealing with down-payments already made by the debtor. They may limit or exclude recourse to retention of title in the fol- lowing cases: (a) where a third party has acquired the goods in ques- tion in good faith; (b) where the goods in question have been incorporated into or mixed with other goods, unless the process can be reversed without causing significant damage to the other goods. (Amendment 21) Article 3b (new) Article 3b Transparency of public procurement contracts Member States shall ensure that calls for tender and public procurement contracts contain precise details of the pay- ment periods and deadlines applied by the contracting authorities, even if these payment periods and deadlines are determined in general contract conditions laid down by law. In particular, time limits shall be set for the com- pletion of pre-payment administrative formalities, such as public works reception procedures. A similar obligation of transparency shall apply in the relationship between a main contractor and a subcontractor carrying out public works. (Amendment 22) Article 3c (new) Article 3c Prompt payment, default date and automatic interest Member States shall ensure that: the period for payment of contractual debts by the 1. contracting authorities as determined under Article 3(1)(a) to (c) is not more than 45 calendar days except in where the value of the contract exceeds € 100 000, which case the maximum period for payment shall be 60 calendar days; the contract may under no circum- stances override these time limits; in a public contract, the main contractor shall grant conditions to the suppliers and subcontractors which are at least as favourable as those granted to the main contractor by the contracting authority; in order to guarantee these conditions to sup- pliers and subcontractors, the main contractor shall be required to provide a guarantee made out to the supplier or subcontractor covering payment of all the amounts C 296/180 Official Journal of the European Communities EN 18. 10. 2000 Thursday 16 December 1999 COMMON POSITION OF THE COUNCIL AMENDMENTS BY PARLIAMENT owed. This guarantee shall be executable upon expiry of 60 calendar days from the date of submission of the invoice to the main contractor by the supplier or subcon- tractor. The same conditions shall apply between the main contractor and the contracting authority; 2. a creditor is entitled to interest from the contracting authority on any amount outstanding when the default date has passed; the interest shall be calculated as set out in Article 3(1)(d), and shall be paid automatically by the contracting authority without the necessity of a claim; 3. the contracting authority is not permitted to request or require that the creditor waive any of the rights referred to in this Article, nor may the creditor request or require that his suppliers or subcontractors waive those rights. (Amendment 23) Article 4(1) to (3) 1. Member States shall ensure that an enforceable title can be obtained, irrespective of the amount of the debt, normally within 90 calendar days of the lodging of the creditor’s action or application at the court or other competent authority, pro- vided that the debt or aspects of the procedure are not dis- puted. This duty shall be carried out by Member States in con- formity with their respective national legislation, regulations and administrative provisions. 1. Member States shall ensure that an enforceable title can be obtained, irrespective of the amount of the debt, normally within 60 calendar days of the lodging of the creditor’s action or application at the court or other competent authority, pro- vided that the debt or aspects of the procedure are not dis- puted. This duty shall be carried out by Member States in con- formity with their respective national legislation, regulations and administrative provisions. The respective national 2. and administrative provisions shall apply the same conditions for all creditors who are estblished in the European Community. regulations legislation, The respective national 2. and administrative provisions shall apply the same conditions for all creditors who are estblished in the European Community. regulations legislation, The 90-calendar-day period referred to in paragraph 1 3. shall not include the following: (a) periods for service of documents, (b) any delays caused by the creditor, such as periods devoted The 60-calendar-day period referred to in paragraph 1 3. shall not include the following: (a) periods for service of documents, (b) any delays caused by the creditor, such as periods devoted to correcting invalid applications. to correcting invalid applications. (Amendment 24) Article 5(3)(ba) (new) (ba) claims for interest of less than € 5. (Amendment 25) Article 5(5) 5. The Commission shall undertake for at least the first three years after …* an annual review of, inter alia, the statu- tory rate to assess the impact on commercial transactions and the operation of the legislation in practice. The results of this 5. The Commission shall undertake for at least the first three years after …* an annual review of, inter alia, the statu- tory rate, contractual payment periods and late payments, transactions and the to assess the impact on commercial 18. 10. 2000 EN Official Journal of the European Communities C 296/181 COMMON POSITION OF THE COUNCIL Thursday 16 December 1999 AMENDMENTS BY PARLIAMENT review and of other reviews will be made known to the Euro- pean Parliament and the Council. operation of the legislation in practice. The results of this review and of other reviews will be made known to the Euro- pean Parliament and the Council, accompanied where appro- priate by proposals for improvement of this Directive. (Amendment 26) Annex (new) ANNEX List of clauses to be recognised by Member States for the purposes of Article 3a ‘El vendedor conservará la propiedad de los bienes ES: hasta el pago final. ’ ‘Varen forbliver sælgerens ejendom, DA: fuldstændig betalt. ’ indtil den er DE: ‘Die Ware bleibt bis zur vollständigen Bezahlung im Eigentum des Verkäufers. ’ EL: ‘Ο πωλητη΄ς παρακρατει΄ την κυριο΄τητα των αγαθω΄ν µε΄χρι την πλη΄ρη εξο΄φληση του τιµη΄µατος’ ‘The goods remain the property of the seller until EN: fully paid. ’ FR: ‘Les marchandises restent la propriété du vendeur jus- qu’au paiement complet. ’ ‘Le merci restano di proprietà del venditore fino al IT: pieno pagamento. ’ NL: ‘De waren blijven tot de volledige betaling eigendom van de verkoper. ’ PT: ‘O vendedor conservará a propriedade dos bens até ao momento do pagamento final. ’ FI: ‘Tavara on myyjän omaisuutta, kunnes kauppahinta on kokonaisuudessaan maksettu. ’ SV: ‘Varorna förblir säljarens egendom tills de betalats helt och hållet. ’