Amended proposal for a European Parliament and Council Directive combating late payment in commercial transactions
C 374/4 EN Official Journal of the European Communities 3. 12. 98 II (Preparatory Acts) COMMISSION Amended proposal for a European Parliament and Council Directive combating late payment in commercial transactions (˛) (98/C 374/04) (Text with EEA relevance) COM(1998) 615 final - 98/0099(COD) (Submitted by the Commission pursuant to Article 189a(2) of EC Treaty on 30 October 1998) (˛) OJ C 168, 3. 6. 1998, p. 13. ORIGINAL PROPOSAL AMENDED PROPOSAL THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof, Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof, Having regard to the proposal from the Commission, Having regard to the proposal from the Commission, Having regard to the opinion of the Economic and Social Committee, Having regard to the opinion of the Economic and Social CommitteeØ(˛), Acting in accordance with the procedure laid down in Article 189b of the Treaty, Acting in accordance with the procedure laid down in Article 189b of the TreatyØ(ˇ), (1) Whereas the European Parliament its ResolutionØ(˛) on in favour of SMEs and the craft sectorØ(ˇ) emphasised that the Commission should forward proposals to deal with the problem of late payment; the Integrated Programme in Unchanged (2) Whereas on 12 May 1995 the Commission adopted a Recommendation on payment periods in comÜ mercial transactionsØ(—). (˛) OJ C 323, 21. 11. 1994, p. 19. (ˇ) COM(94) 207 final, 3. 6. 1994. (—) OJ L 127, 10. 6. 1995, p. 19. (˛) Adopted on 10. 9. 1998, not yet published in the Official Journal. (ˇ) Opinion of the European Parliament adopted on 17. 9. 1998, not yet published in the Official Journal. 3. 12. 98 EN Official Journal of the European Communities C 374/5 ORIGINAL PROPOSAL AMENDED PROPOSAL (3) Whereas the European Parliament in its Resolution on the Commission Recommendation on payment periods in commercial transactionsØ(˛) called on the Commission to consider transforming its recomÜ mendation into a proposal for a Council Directive to be submitted as soon as possible; an adopted (4) Whereas on 29 May 1997 the Economic and Social Committee the Commission’s Green Paper on Public procurement in the Way ForwardØ(ˇ), recommending maximum payment periods and interest on late payments by public authorities; the European Union: Exploring opinion on (5) Whereas on 4 June 1997 the Commission published an Action Plan for the Single MarketØ(—), which underlined an increasingly serious obstacle for the success of the Single Market; late payment represents that (6) Whereas on 17 the Commission July 1997 published a Report on late payments in commercial the results of an transactionsØ(Ñ), evaluation of the Commission’s Recommendation of 12 May 1995; summarising the effects of (7) Whereas heavy administrative and financial burdens are placed on businesses, particularly small and medium sized ones, as a result of late payment; whereas moreover, late payments are a major cause of insolvencies threatening the survival of businesses and result in numerous job losses; (7) Whereas heavy administrative and financial burdens are placed on businesses, particularly small and medium sized ones, as a result of the excessive late payment; whereas payment periods and moreover, these problems are a major cause of insolvencies threatening the survival of businesses and result in numerous job losses; (8) Whereas the differences between the payment rules and practices in the Member States constitute an obstacle to the proper functioning of the internal market; whereas a creditor who needs to collect receivables from debtors situated in several Member States is confronted with widely differing rules of time legislation making national consuming and costly for him to do so; it difficult, Unchanged (˛) OJ C 211, 22. 7. 1996, p. 43. (ˇ) OJ C 287, 22. 9. 1997, p. 92. (—) CSE(97) 1 final, 4. 6. 1997, pp. 8 and 38. (Ñ) OJ C 216, 17. 7. 1997, p. 10. C 374/6 EN Official Journal of the European Communities 3. 12. 98 ORIGINAL PROPOSAL AMENDED PROPOSAL (9) Whereas this has the effect of considerably limiting commercial transactions between Member States; whereas this is in contradiction with Article 7a of the Treaty as entrepreneurs should be able to trade throughout the Internal Market under conditions which ensure that transborder operations do not entail greater risks than domestic sales; whereas it would lead to distortions of competition if different rules transborder operations; to domestic applied and (10) Whereas the most recent statistics indicate that there has been, at best, no improvement in late payments the in many Member States adoption of the Recommendation of 12 May 1995; since late payments (11) Whereas, in accordance with the principle of subÜ sidiarity and the principle of proportionality as set out in Article 3b of the Treaty, the objective of combating internal market cannot be sufficiently achieved by the Member States acting individually and can, therefore, be better achieved by the Community; whereas this Directive confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose; in the (12) Whereas late payments and/or late payment constitutes a breach of contract which has been made financially attractive to debtors in most Member States by low interest rates on redress procedures; whereas a decisive shift is necessary to reverse this trend and the consequences of late payments must be such as both to discourage late payment and to fully compensate creditors for the costs incurred; slow (13) Whereas the use of retention of title clauses as a means of speeding up payment is at present constrained by a number of differences in national law; whereas 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; (13) Whereas the use of retention of title clauses as a means of speeding up payment is at present constrained by a number of differences in national law; whereas 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 length of payment periods and late payments do not distort commercial transactions in the funcÜ tioning of the internal market; (14) Whereas the consequences of late payment can be dissuasive only if they are accompanied by redress procedures which are rapid, effective and inexÜ pensive for the creditor; whereas in conformity with in the principle of non discrimination contained Article 6 of the Treaty, these procedures should be available to creditors from all Member States irreÜ spective of their residence; Unchanged 3. 12. 98 EN Official Journal of the European Communities C 374/7 ORIGINAL PROPOSAL AMENDED PROPOSAL (15) Whereas public authorities handle a considerable volume of payments to businesses; whereas strict payment discipline on the part of these authorities would have a beneficial trickle down effect on the economy as a whole; whereas for payments executed by the Commission it has already been decided to give certain creditors the right to receive default interest on late payments; (15) Whereas public authorities handle a considerable volume of payments to businesses; whereas strict payment discipline on the part of these authorities would have a beneficial trickle down effect on the economy as a whole; whereas, with regard to public contracts, contracting enterprises in turn likewise delay payments to their suppliers and subconÜ disproportionate tractors, payment periods - practices which seriously damage the interests of many businesses, especially SMEs; whereas for payments executed by the Commission it has already been decided to give certain creditors the right to receive default interest on late payments; habitually imposing (16) Whereas for the purposes of the implementation of this Directive, the Commission should be assisted by a committee of an advisory nature, Unchanged (17) Whereas it could be necessary, when this Directive is reviewed, to take into consideration the possiÜ bility of addressing long contractual payment periods; the consequences of (18) Whereas the term "contracting authorities’ should correspond to the definition laid down in Directive 92/50/EECØ(˛) and Directive 93/37/EECØ(ˇ) and should include, for the purposes of the present Directive, the "contracting entities’ as defined in Directive 93/38/EECØ(—). HAVE ADOPTED THIS DIRECTIVE: CHAPTER I Article 1 Scope The provisions of this Directive shall apply to all payments made in commercial transactions. Unchanged Article 2 Definitions Article 1 Scope Article 2 Definitions For the purposes of this Directive: For the purposes of this Directive: 1. "commercial transactions’ means transactions between two or more natural or legal persons carrying on a trade or profession acting in the course of their business, or between such persons and public authÜ orities, which lead to delivery of goods or provision of services for remuneration; 1. "commercial transactions’ means transactions between lead to delivery of goods or undertakings which provision of services for remuneration; an underÜ taking is any organisation set up on a permanent basis with an independent economic activity, even where it is carried on by a single person and even where it is not intended to make a profit; constracting authorities shall in every case be deemed to be undertakings for the purposes of this Directive; (˛) OJ L 209, 24. 7. 1992, p. 1. (ˇ) OJ L 199, 9. 8. 1993, p. 54. (—) OJ L 199, 9. 8. 1993, p. 84. C 374/8 EN Official Journal of the European Communities 3. 12. 98 ORIGINAL PROPOSAL AMENDED PROPOSAL 2. "late payment’ means failure to observe the centractual Unchanged or statutory terms of payment; 3. "retention of title’ means retention by the seller of title to the goods in question until the buyer has paid the price in full; 3. "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; 4. "contracting authorities’ corresponds to the definition laid down in Directive 92/50/EECØ(˛) and Directive 93/37/EECØ(ˇ) and includes the "contracting entities’ as defined in Directive 93/38/EECØ(—). 4. "public authorities’ means the State, regional or local authorities, bodies governed by public law, or associations formed by one or more of such authÜ orities or bodies governed by public law. A body is considered to be governed by public law where it is established for the specific purpose of meeting needs in the general interest, not being of an industrial or commercial nature, has is financed for the most part by the State, or regional or local authorities, or other bodies governed by public law, or is subject to management supervision by those bodies, or has an administrative, managerial or superÜ visory board more than half of whose members are appointed by the State, regional or local authorities, or other bodies governed by public law; legal personality, and 5. "public procurement contracts’ means contracts for pecuniary interest concluded in writing between a natural or legal person and public authorities. 5. "public procurement contracts’ means contracts for pecuniary interest concluded in writing between a the meaning of contracting paragraph 4 and an undertaking which is not a contracting authority. authority within CHAPTER II Article 3 CHAPTER II Article 3 Due date, interest and compensation for the damage incurred Default date, interest and compensation for the damage incurred 1. Ú Member States shall ensure that: 1. Ú Member States shall enact the necessary legislation and amend their procedural rules in such a way that, subject to the goods or services having been duly legal conditions being provided and correctly fulfilled, the following is ensured: the underlying (a) the due date for the payment of debts shall not be more than 21 calendar days from the date of the invoice, unless otherwise specified in the contract or in the seller’s general conditions of sale; (a) the default date for the payment of debts shall not be more than 21 calendar days from the date of receipt of the in the invoice, unless otherwise specified contract or in the sellers’s general conditions of sale; (˛) OJ L 209, 24. 7. 1992, p. 1. (ˇ) OJ L 199, 9. 8. 1993, p. 54. (—) OJ L 199, 9. 8. 1993, p. 84. 3. 12. 98 EN Official Journal of the European Communities C 374/9 ORIGINAL PROPOSAL AMENDED PROPOSAL (b) the invoice shall be deemed to have been received no later than the fifth calendar day following the date of the invoice, unless the buyer or seller is able to furnish proof of receipt at another time; (b) in the absence of an invoice or if the date of the invoice cannot be determined with certainty or if the date of the is earlier than the date of delivery, the due date shall be calculated from the date of delivery of the goods or services; invoice (c) in the absence of an invoice or if the date of its receipt cannot be determined with certainty or if the date of receipt is earlier than the date of supply of the goods or services concerned, the default date shall be calculated from the latter date; (d) where the default date specified in the contract or in the seller’s general conditions of sale is more than 45 calendar days from the date of receipt of the invoice, the buyer shall provide the seller, at the buyer’s cost, with a bill of exchange, specifying explicitly the date for its payment and guaranteed by an accepted credit institution; (e) where the buyer fails to provide the seller with a bill of exchange in accordance with point (d) above, the normal default date and level of interest as foreseen in this article shall be applicable and any contractual derogations therefrom to the detriment of the seller shall be automatically null and void; the remainder of the contract shall remain in force; (c) the creditor shall be entitled to claim interest from the debtor on any outstanding amount when the due date as determined under points (a) and (b) has been exceeded without the creditor having received the amount due; (f) the creditor shall be entitled to claim interest from the debtor on any outstanding amount when the default date as determined under points (a) to (e) above has been exceeded without the creditor having received the amount due; (d) interest shall accrue automatically from the day after the due date without the necessity of a reminder; (g) interest shall accrue automatically from the day after the default date without the necessity of a reminder; New numbering: (e) becomes (h), otherwise unchanged. (e) the level of interest for late payment (the "statutory rate’), which the creditor is entitled to claim, shall be the sum of the tender (repo) interest rate of the European Central Bank (the "reference rate’) plus at least 8 percentage points (the "margin’), unless otherwise specified in the contract or in the seller’s general conditions of sale; for Member States which do not participate in the third phase of Economic and Monetary Union, the reference rates referred to above shall be the equivalent rates set by their central banks; (f) the statutory rate for interest on late payment shall change automatically in accordance with changes to the reference rate mentioned in point (e); New numbering: (f) becomes (i) and the reference to point (e) becomes (h), otherwise unchanged. (g) in addition to the right to interest, the creditor shall be entitled to claim full compensation from the debtor for the damage incurred. New numbering: (g) becomes (j), otherwise unchanged. C 374/10 EN Official Journal of the European Communities 3. 12. 98 ORIGINAL PROPOSAL AMENDED PROPOSAL 2. Ú The margin referred to in paragraph 1(e) may be modified by the Commission in accordance with the procedure referred to in Article 9 if it becomes apparent that the statutory rate is no longer sufficiently high to discourage to compensate the seller for any loss incurred as a result of late payment, in particular for any interest he would have to pay on overdraft credit. from paying the buyer late and 2. Ú New numbering: becomes 1(h), otherwise unchanged. the reference to point 1(e) 3. Ú Three years after the end of the period defined in Article 10(1) of the Directive, the Commission, having been advised by the Committee referred to in Article 9, shall undertake a review of, inter alia, the statutory rate to assess the impact on commercial transactions and the operation of the legislation in practice. The results of this reviews and of other reviews will be made known to the European Parliament. Article 4 Retention of title Article 4 Retention of title 1. Ú Member States shall ensure that the seller retains title if he notifies the buyer of his intention of doing so in writing no later than the date of delivery of the goods. 1. Ú Member States shall ensure that the seller retains title if a retention of title clause has been agreed. Apart from an individual contract, such an agreement shall be is considered valid contained the invoice, or on delivery documents accompanying the goods, which the buyer has received no later than at the time of delivery, and to which he has not objected. No other formality shall be required. the seller’s standard contract, on the retention of title clause in if Once the due date has passed without the buyer having paid, the seller may claim that the goods in question be returned to him. As soon as the buyer takes possession of the goods, he becomes responsible for any damage to or loss of the goods. A valid notification may be made in the seller’s standard contract, on the invoice, or in an individual contract. 2. Ú Member States shall recognise the validity of the clauses contained in the Annex or of clauses having equivalent effect. 3. Ú Once the default date has passed without the buyer having paid, the seller may claim that the goods in question be returned to him. Member States shall provide for the 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 similar under the legislation of the Member States. No later than when the buyer takes possession of the goods, he becomes responsible for any damage to or loss of the goods. Member States shall recognise the validity of the clauses contained in the Annex or of clauses having equivalent effect. New numbering: this paragraph becomes 4(2), otherwise unchanged. 3. 12. 98 EN Official Journal of the European Communities C 374/11 ORIGINAL PROPOSAL AMENDED PROPOSAL 2. ÚParagraph 1 shall apply only to debts payable in a single instalment. Deleted 3. Ú Member States shall define the retention of title clause as regards those aspects not covered by this Directive and in particular as regards the effect on third parties acting in good faith. the effect of 4. Ú Member States may adopt provisions the protection of third parties acting in good faith, and as regards down payments already made by the debtor. They may also adopt provisions concerning goods which are immovable property. in other movable or incorporated for Article 5 Article 5 Accelerated recovery procedures for undisputed debts Accelerated recovery procedures for undisputed debts 1. ÚMember States shall ensure that there is an acÜ celerated debt recovery procedure for undisputed debts. Unchanged 2. Ú This procedure shall apply amount of the debt. irrespective of the 3. Ú This procedure shall be available to creditors from all Member States, their place of residence. irrespective of 4. ÚThe creditor shall be able to choose whether or not he wishes to be represented by a third person. 5. Ú The procedure before the court shall be formulated in such a way that a period of 60 calendar days is not exceeded from the receipt of the creditor’s request to the time when the writ of execution or equivalent document becomes enforceable. This period is without prejudice to: (a) the application of the rules governing notification or service; and (b) the rights of the defendant to dispute the debt. Article 6 Article 6 Simplified legal procedures for small debts Simplified legal procedures for small debts Member States shall ensure that simplified procedures are available for debts up to a threshold, which shall not be less than ECU 20Ø000. These procedures shall provide for simple, low cost methods for taking legal action for the settlement of debts. Member States shall ensure that simplified procedures are available for debts up to a ceiling, which shall not be less than ECU 20Ø000. These procedures shall provide for simple, low cost methods for taking legal action for the settlement of debts. C 374/12 EN Official Journal of the European Communities 3. 12. 98 ORIGINAL PROPOSAL AMENDED PROPOSAL sum can This the Commission to reflect changing economic conditions in accordance with the procedure referred to in Article 9. if necessary be modified by Unchanged These procedures shall be available to creditors from all Member States irrespective of their place of residence. CHAPTER III Article 7 CHAPTER III Article 7 Transparency in public procurement contracts Transparency in public procurement contracts Member States shall ensure that public procurement contracts contain precise details of the payment periods and deadlines applied by the public authorities. In particular, time limits shall be fixed for the completion of pre payment administrative formalities, such as public works reception procedures. Member States shall ensure that public procurement contracts contain precise details of the default dates and deadlines applied by the contracting authorities, even if in these default dates and deadlines are determined general contract conditions law. In particular, time limits shall be fixed for the completion 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. laid down by Article 8 Article 8 Prompt payment, due date and automatic interest Prompt payment, default date and automatic interest Member States shall ensure that: Member States shall ensure that: 1. the due date for the payment of contractual debts by the public authorities as determined under Article 3(1)(a) and (b) does not exceed 60 calendar days; the that contract shall maximum payment period; in no circumstances override 1. the default date for the payment of contractual debts by the contracting authorities as determined under Article 3(1)(a) to (c) shall not be more than 45 calendar days except where the value of the contract exceeds ECU 100Ø000 where the maximum default date will be 60 calendar days; the contract shall in no circumstances override these maximum default dates; in a public contract, the main contractor has to 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 suppliers 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 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 subcontractor; 3. 12. 98 EN Official Journal of the European Communities C 374/13 ORIGINAL PROPOSAL AMENDED PROPOSAL 2. a creditor shall be entitled to interest from the public authority on any outstanding amount when the due date has been exceeded; shall be calculated as set out in Article 3(1)(d) and (e), and shall be paid automatically by the public authority without the necessity of a claim; interest the 2. a creditor shall be entitled to interest from the contracting authority on any outstanding amount when the default date has been exceeded; the interest shall be calculated as set out in Article 3(1)(g) and (h), and shall be paid automatically by the contracting authority without the necessity of a claim; 3. the public authority is not permitted to request or require that the creditor waives any of the rights referred to in this Article. 3. the contracting authority is not permitted to request or require that the creditor waives any of the rights the main referred contractor request or require that his suppliers or subcontractors waive those rights. this Article, nor may to in CHAPTER IV Article 9 Committee CHAPTER IV Article 9 Committee For the purposes of reviewing the functioning of this Directive and in particular for the cases mentioned in Article 3(2) and Article 6, the Commission shall be assisted by a committee of an advisory nature composed of the representatives of the Member States and chaired by the representative of the Commission. Unchanged The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft, within a time limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote. The opinion shall be recorded in addition, each Member State shall have the right to ask to have its position recorded in the minutes. the minutes; in The Commission shall take the utmost account of the opinion delivered by the committee. It shall inform the committee of the manner in which its opinion has been taken into account. Article 10 Transposition Article 10 Transposition 1. ÚMember States shall bring laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2000 at the latest. They shall forthwith inform the Commission thereof. into force the Unchanged C 374/14 EN Official Journal of the European Communities 3. 12. 98 ORIGINAL PROPOSAL AMENDED PROPOSAL When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accomÜ panied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States. 2. Ú Member States may maintain or bring into force provisions which are the provisions than stricter necessary to comply with this Directive. States 3. ÚMember the shall Commission the text of the main laws, regulations or administrative provisions which they adopt in the field covered by this Directive. communicate to 2. Ú Member States may maintain or bring into force provisions which are more favourable to the creditor than this Directive. the provisions necessary to comply with Unchanged Article 11 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. Unchanged Article 12 Addressees This Directive is addressed to the Member States. Unchanged Article 11 Entry into force Article 12 Addressees ANNEX ANNEX List of clauses to be recognised by Member States for the purposes of Article 4 List of clauses to be recognised by Member States for the purposes of Article 4 ES:Ú El vendedor conservar‘ la propiedad de los bienes hasta ES:Ú El vendedor conservar‘ la propiedad de los bienes hasta el pago. ° el pago final. ° DA: °Varen forbliver s»lgerens ejendom, indtil den er betalt. DA: °Varen forbliver s»lgerens ejendom, indtil den er fuldÜ st»ndig betalt. DE: ,,Die Ware verbleibt bis zur Bezahlung im Eigentum des Verk…ufers. "" DE: ,,Die Ware bleibt bis zur vollst…ndigen Bezahlung Eigentum des Verk…ufers. "" im EL: O pvlhtþw parakrateò thn kyriöthta tvn agaq×n m~xri na EL: O pvlhtþw parakrateò thn kyriöthta tvn agaq×n m~xri ejoflhqeò to tòmhm‘ toyw. ° thn plþrh ejöflhsh toy timþmatow. ° EN: "The goods remain the property of the seller until payÜ ment. ’ EN: "The goods remain the property of the seller until fully paid. ’ Les marchandises jusqu’au paiement. ° restent la propri~t~ du vendeur FR: FR: IT: NL: PT: FI: Le merci restano di propriet{ del venditore fino al pagaÜ mento. ° ,,De waren blijven tot de betaling eigendom van de verÜ koper. ’’ O vendedor conservar‘ a propriedade dos bens at~ ao momento do pagamento. ° ’’Tavara on myyj…n omaisuutta, kunnes kauppahinta on maksettu. ’’ SV: ’’Varorna f‰rblir s…ljarens egendom tills de betalats. ’’ Les marchandises restent jusqu’au paiement complet. ° la propri~t~ du vendeur Le merci restano di propriet{ del venditore fino al pieno pagamento. ° ,,De waren blijven tot de volledige betaling eigendom van de verkoper. ’’ O vendedor conservar‘ a propriedade dos bens at~ ao momento do pagamento final. ° ’’Tavara on myyj…n omaisuutta, kunnes kauppahinta on kokonaisuudessaan maksettu. ’’ ’’Varorna f‰rblir s…ljarens egendom tills de betalats helt och h¿llet. ’’ IT: NL: PT: FI: SV: