23.2.2011   

EN

Official Journal of the European Union

L 48/1

(1)

A number of substantive changes are to be made to Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (3). It is desirable, for reasons of clarity and rationalisation, that the provisions in question be recast.

(2)

Most goods and services are supplied within the internal market by economic operators to other economic operators and to public authorities on a deferred payment basis whereby the supplier gives its client time to pay the invoice, as agreed between parties, as set out in the supplier’s invoice or as laid down by law.

(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. The risk of such negative effects strongly increases in periods of economic downturn when access to financing is more difficult.

(4)

Judicial claims related to late payment are already facilitated by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (4), Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (5), Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (6) and Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (7). However, in order to discourage late payment in commercial transactions, it is necessary to lay down complementary provisions.

(5)

Undertakings should be able to trade throughout the internal market under conditions which ensure that transborder operations do not entail greater risks than domestic sales. Distortions of competition would ensue if substantially different rules applied to domestic and transborder operations.

(6)

In its Communication of 25 June 2008 entitled ‘ “Think Small First” — A “Small Business Act” for Europe’, the Commission emphasised that small and medium-sized enterprises’ (SMEs) access to finance should be facilitated and that a legal and business environment supportive of timely payments in commercial transactions should be developed. It should be noted that public authorities have a special responsibility in this regard. The criteria for the definition of SMEs are set out in Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (8).

(7)

One of the priority actions of the Commission Communication of 26 November 2008 entitled ‘European Economic Recovery Plan’ is the reduction of administrative burdens and the promotion of entrepreneurship by, inter alia, ensuring that, as a matter of principle, invoices, including to SMEs, for supplies and services are paid within 1 month to ease liquidity constraints.

(8)

The scope of this Directive should be limited to payments made as remuneration for commercial transactions. This Directive should not regulate transactions with consumers, interest in connection with other payments, for instance payments under the laws on cheques and bills of exchange, or payments made as compensation for damages including payments from insurance companies. Furthermore, Member States should be able to exclude debts that are subject to insolvency proceedings, including proceedings aimed at debt restructuring.

(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. It should therefore also regulate all commercial transactions between main contractors and their suppliers and subcontractors.

(10)

The fact that the liberal professions are covered by this Directive should not oblige Member States to treat them as undertakings or merchants for purposes outside the scope of this Directive.

(11)

The delivery of goods and the provision of services for remuneration to which this Directive applies should also include the design and execution of public works and building and civil engineering works.

(12)

Late payment constitutes a breach of contract which has been made financially attractive to debtors in most Member States by low or no interest rates charged on late payments and/or slow procedures for redress. A decisive shift to a culture of prompt payment, including one in which the exclusion of the right to charge interest should always be considered to be a grossly unfair contractual term or practice, is necessary to reverse this trend and to discourage late payment. Such a shift should also include the introduction of specific provisions on payment periods and on the compensation of creditors for the costs incurred, and, inter alia, that the exclusion of the right to compensation for recovery costs should be presumed to be grossly unfair.

(13)

Accordingly, provision should be made for business-to-business contractual payment periods to be limited, as a general rule, to 60 calendar days. However, there may be circumstances in which undertakings require more extensive payment periods, for example when undertakings wish to grant trade credit to their customers. It should therefore remain possible for the parties to expressly agree on payment periods longer than 60 calendar days, provided, however, that such extension is not grossly unfair to the creditor.

(14)

In the interest of consistency of Union legislation, the definition of ‘contracting authorities’ in 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 (9) and in 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 services contracts (10) should apply for the purposes of this Directive.

(15)

Statutory interest due for late payment should be calculated on a daily basis as simple interest, in accordance with Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (11).

(16)

This Directive should not oblige a creditor to claim interest for late payment. In the event of late payment, this Directive should allow a creditor to resort to charging interest for late payment without giving any prior notice of non-performance or other similar notice reminding the debtor of his obligation to pay.

(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. For the purposes of this Directive, Member States should promote systems that give legal certainty as regards the exact date of receipt of invoices by the debtors, including in the field of e-invoicing where the receipt of invoices could generate electronic evidence and which is partly governed by the provisions on invoicing contained in Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (12).

(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. Compensation for the recovery costs should be determined without prejudice to national provisions according to which a national court may award compensation to the creditor for any additional damage regarding the debtor’s late payment.

(20)

In addition to an entitlement to payment of a fixed sum to cover internal recovery costs, creditors should also be entitled to reimbursement of the other recovery costs they incur as a result of late payment by a debtor. Such costs should include, in particular, those incurred by creditors in instructing a lawyer or employing a debt collection agency.

(21)

This Directive should be without prejudice to the right of Member States to provide for fixed sums for compensation of recovery costs which are higher and therefore more favourable to the creditor, or to increase those sums, inter alia, in order to keep pace with inflation.

(22)

This Directive should not prevent payments by instalments or staggered payments. However, each instalment or payment should be paid on the agreed terms and should be subject to the rules for late payment set out in this Directive.

(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.

(24)

However, account should be taken of the specific situation of public authorities carrying out economic activities of an industrial or commercial nature by offering goods or services on the market as a public undertaking. For that purpose, Member States should be allowed, under certain conditions, to extend the statutory payment period up to a maximum of 60 calendar days.

(25)

A particular cause for concern in connection with late payment is the situation of health services in a large number of Member States. Healthcare systems, as a fundamental part of Europe’s social infrastructure, are often obliged to reconcile individual needs with the available finances, as the population of Europe ages, as expectations rise, and as medicine advances. All systems have to deal with the challenge of prioritising healthcare in a way that balances the needs of individual patients with the financial resources available. Member States should therefore be able to grant public entities providing healthcare a certain amount of flexibility in meeting their commitments. For that purpose, Member States should be allowed, under certain conditions, to extend the statutory payment period up to a maximum of 60 calendar days. Member States should, nonetheless, make every effort to ensure that payments in the healthcare sector are made within the statutory payment periods.

(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.

(27)

The Union institutions are in a situation comparable to that of the public authorities of Member States with regard to their financing and commercial relationships. Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (13) specifies that the validation, authorisation and payment of expenditure by Union institutions must be completed within the time limits laid down in its implementing rules. Those implementing rules are currently set out in Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (14), and specify the circumstances in which creditors which are paid late are entitled to receive default interest. In the context of the ongoing review of those Regulations, it should be ensured that the maximum time limits for payment by the Union institutions are aligned with statutory periods applicable to public authorities in accordance with this Directive.

(28)

This Directive should prohibit abuse of freedom of contract to the disadvantage of the creditor. As a result, where a term in a contract or a practice relating to the date or period for payment, the rate of interest for late payment or the compensation for recovery costs is not justified on the grounds of the terms granted to the debtor, or it mainly serves the purpose of procuring the debtor additional liquidity at the expense of the creditor, it may be regarded as constituting such an abuse. For that purpose, and in accordance with the academic ‘Draft Common Frame of Reference’, any contractual term or practice which grossly deviates from good commercial practice and is contrary to good faith and fair dealing should be regarded as unfair to the creditor. In particular, the outright exclusion of the right to charge interest should always be considered as grossly unfair, whereas the exclusion of the right to compensation for recovery costs should be presumed to be grossly unfair. This Directive should not affect national provisions relating to the way contracts are concluded or regulating the validity of contractual terms which are unfair to the debtor.

(29)

In the context of enhanced efforts to prevent the abuse of freedom of contract to the detriment of creditors, organisations officially recognised as representing undertakings and organisations with a legitimate interest in representing undertakings should be able to take action before national courts or administrative bodies in order to prevent the continued use of contract terms or practices which are grossly unfair to the creditor.

(30)

In order to contribute to the achievement of the objective of this Directive, Member States should foster the spread of good practices, including by encouraging the publication of a list of prompt payers.

(31)

It is desirable to ensure that creditors are in a position to exercise a retention of title clause on a non-discriminatory basis throughout the Union, if the retention of title clause is valid under the applicable national provisions designated by private international law.

(32)

This Directive only defines the term ‘enforceable title’ but should not regulate the various procedures for forced execution of such a title or the conditions under which forced execution of such a title can be stopped or suspended.

(33)

The consequences of late payment can be dissuasive only if they are accompanied by procedures for redress which are rapid and effective for the creditor. In accordance with the principle of non-discrimination set out in Article 18 of the Treaty on the Functioning of the European Union, those procedures should be available to all creditors who are established in the Union.

(34)

In order to facilitate compliance with the provisions of this Directive, Member States should encourage recourse to mediation or other means of alternative dispute resolution. Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (15) already sets a framework for systems of mediation at Union level, especially for cross-border disputes, without preventing its application to internal mediation systems. Member States should also encourage interested parties to draw up voluntary codes of conduct aimed, in particular, at contributing to the implementation of this Directive.

(35)

It is necessary to ensure that the recovery procedures for unchallenged claims related to late payment in commercial transactions be completed within a short period of time, including through an expedited procedure and irrespective of the amount of the debt.

(36)

Since the objective of this Directive, namely combating late payment in the internal market, cannot be sufficiently achieved by the Member States and can, therefore, by reason of its scale and effect, be better achieved at the Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(37)

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with Directive 2000/35/EC. The obligation to transpose the provisions which are unchanged arises under that Directive.

(38)

This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of Directive 2000/35/EC.

(39)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (16), Member States are encouraged to draw up, for themselves and in the interest of the Union, their own tables which will, as far as possible, illustrate the correlation between this Directive and their transposition measures, and to make those tables public,

(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 and in Article 1(9) of Directive 2004/18/EC, regardless of the subject or value of the contract;

(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;

(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;

(5)

‘interest for late payment’ means statutory interest for late payment or interest at a rate agreed upon between undertakings, subject to Article 7;

(6)

‘statutory interest for late payment’ means simple interest for late payment at a rate which is equal to the sum of the reference rate and at least eight percentage points;

(7)

‘reference rate’ means either of the following:

(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;

(9)

‘retention of title’ means the contractual agreement according to which the seller retains title to the goods in question until the price has been paid in full;

(10)

‘enforceable title’ means any decision, judgment or order for payment issued by a court or other competent authority, including those that are provisionally enforceable, whether for immediate payment or payment by instalments, which permits the creditor to have his claim against the debtor collected by means of forced execution.

(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.

(a)

for the first semester of the year concerned shall be the rate in force on 1 January of that year;

(b)

for the second semester of the year concerned shall be the rate in force on 1 July of that year.

(a)

that the creditor is entitled to interest for late payment from the day following the date or the end of the period for payment fixed in the contract;

(b)

where the date or period for payment is not fixed in the contract, that the creditor is entitled to interest for late payment upon the expiry of any of the following time limits:

(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.

(a)

for the first semester of the year concerned shall be the rate in force on 1 January of that year;

(b)

for the second semester of the year concerned shall be the rate in force on 1 July of that year.

(a)

the period for payment does not exceed any of the following time limits:

(b)

the date of receipt of the invoice is not subject to a contractual agreement between debtor and creditor.

(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 (17);

(b)

public entities providing healthcare which are duly recognised for that purpose.

(a)

any gross deviation from good commercial practice, contrary to good faith and fair dealing;

(b)

the nature of the product or the service; and

(c)

whether the debtor has any objective reason to deviate from the statutory rate of interest for late payment, from the payment period as referred to in Article 3(5), point (a) of Article 4(3), Article 4(4) and Article 4(6) or from the fixed sum as referred to in Article 6(1).

(a)

periods for service of documents;

(b)

any delays caused by the creditor, such as periods devoted to correcting applications.

23.2.2011   

EN

Official Journal of the European Union

L 48/11

(1)

A fishing quota for mackerel in zone VIIIc, IX and X; EU waters of CECAF 34.1.1 was allocated to Spain for 2010 by Council Regulation (EU) No 53/2010 (2) and for 2011 by Council Regulation (EU) No 57/2011 (3).

(2)

The mackerel fishing quota for 2010 was reduced following exchanges made by Spain with France and Portugal, pursuant to Article 20(5) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (4).

(3)

The Commission detected inconsistencies in the Spanish data about the mackerel fishery in 2010 by crosschecking such data as they had been recorded and reported at different stages of the value chain, from catch to first sale. These inconsistencies were further corroborated through the conduct of several audits, verification missions and inspections in Spain in accordance with Regulation (EC) No 1224/2009. The evidence gathered in the course of the investigation allows the Commission to establish that this Member State has exceeded its mackerel quota in the year 2010 by 19 621 tonnes.

(4)

According to paragraph 1 of Article 105 of Regulation (EC) No 1224/2009, when the Commission has established that a Member State has exceeded the fishing quotas which have been allocated to it, the Commission shall operate deductions from future fishing quotas of that Member State.

(5)

Paragraph 2 of Article 105 of Regulation (EC) No 1224/2009 provides that deductions from fishing quotas shall be operated in the following year or years by applying certain multiplying factors set out in that paragraph.

(6)

The deductions applicable for overfishing in 2010 are higher than the quota allocated to Spain in 2011 for the stock concerned.

(7)

The mackerel stock in question is currently within safe biological limits and scientific advice indicates that this is likely to remain so in the foreseeable future. An immediate and full application of the deduction from the Spanish mackerel quota for 2011 would lead to a complete closure of this fishery in 2011. In the specific circumstances of this case, such complete closure is likely to involve serious risks of disproportionate socio-economic consequences for both the fishing sector concerned and the associated processing industry. On balance, and taking into consideration the objectives of the Common Fisheries Policy, it is considered appropriate in this particular case to operate the deductions needed for the restitution of the overfishing amount due over a period of 5 years, from 2011 to 2015 and, if necessary, to operate any remainder deduction from the mackerel quota allocated in immediately subsequent years.

23.2.2011   

EN

Official Journal of the European Union

L 48/14

23.2.2011   

EN

Official Journal of the European Union

L 48/16

(1)

Commission Regulation (EU) No 691/2010 of 29 July 2010 laying down a performance scheme for air navigation services and network functions and amending Regulation (EC) No 2096/2005 laying down common requirements for the provision of air navigation services (2) provides for the adoption by the Commission of European Union-wide performance targets.

(2)

The Commission held on 27 May 2010 a consultation on the approach and processes for setting European Union-wide performance targets, associating all stakeholders listed in Article 10(3) of Regulation (EC) No 549/2004.

(3)

A Performance Review Body was designated on 29 July 2010 by the Commission further to Article 3 of Regulation (EU) No 691/2010 to assist it in the implementation of the performance scheme.

(4)

The Performance Review Body prepared European Union-wide performance targets proposals in collaboration with EASA, which were submitted on 2 August 2010 for stakeholder consultation as required by Article 9(1) of Regulation (EU) No 691/2010.

(5)

The Performance Review Body’s proposed EU-wide performance targets for environment, capacity and cost-efficiency have been checked with EASA for consistency with the overriding safety objectives.

(6)

The Performance Review Body delivered on 27 September 2010 to the Commission its recommendations for European Union-wide performance targets for the period 2012-2014 in a report substantiating each of the recommendations with a description of the assumptions and rationale used for setting up the targets and containing in annexes a consultation document summarising the consultation process as well as a comments response document outlining how comments were taken into account in the preparation of the recommendations to the Commission.

(7)

The European Union-wide performance targets are based on the information available to the Commission and the Performance Review Body up to 24 November 2010. According to the forecasts provided by Member States to the Commission and Eurocontrol under the provisions of Commission Regulation (EC) No 1794/2006 (3) the average European Union-wide determined unit rate for en route air navigation services would be 55,91 EUR in 2014 (expressed in real terms, EUR 2009), with intermediate annual values of 58,38 EUR in 2012 and 56,95 EUR in 2013. These values take into account the latest planned costs of the Eurocontrol Agency, including for the EU Member States a one-off reduction of 0,69 EUR per en route service unit in 2011. The Commission, taking into account the report of the Performance Review Body and the efficiency improvements that can be expected from the gradual and coordinated implementation of all elements of the second Single European Sky package, is of the opinion that the EU-wide cost efficiency target can be set at a level that is lower than the latest consolidated Member States’ plans.

(8)

The European Air Traffic Management Master Plan, a living document which constitutes the commonly agreed roadmap covering both the development and the deployment of SESAR, has been endorsed by the Council on 30 March 2009 (4). It contains the political vision and high-level goal of the Commission for the Single European Sky and its technological pillar in the key performance areas of safety, environment, capacity and cost-efficiency, and the setting of the European Union-wide performance targets should be considered part of a process aiming at achieving these goals.

(9)

During the first reference period for the performance scheme the Commission, advised by EASA, should assess and validate the safety key performance indicators, with a view to ensuring that the safety risk is adequately identified, mitigated and managed. Member States should monitor and publish these key performance indicators and may set corresponding targets.

(10)

In application of recital 18, Articles 10 and 13, Annex II, point 1.2 and Annex III, point 1 of Regulation (EU) No 691/2010, the national or functional airspace block performance targets need not necessarily be equal to the European Union-wide performance targets; they should be consistent with these European Union-wide performance targets. The national or functional airspace block performance plans should reflect this consistency.

(11)

The assessment made by the Commission of the national or functional airspace block performance plans and targets should be global, weighting each target against the others in a balanced way, considering justified trade-offs between different performance areas, having regard to the overriding safety objectives. It should take into account local context, in particular for States with low unit rates or under the ‘European Support Mechanism’, such as cost containment measures already undertaken, planned costs for specific programmes to gain performance improvements in dedicated performance fields, and specificities including achievements as well as failures. In application of Article 13(1) of Regulation (EU) No 691/2010, it should take appropriate account of the evolution of the context that may have occurred between the date of adoption of the European Union-wide targets and the date of the assessment. The assessment should also take into account the progress already made by Member States since the adoption of Regulation (EC) No 1070/2009 of the European Parliament and of the Council (5) in the various key performance areas and in particular the cost-efficiency area.

(12)

In application of the provisions of Regulation (EC) No 1794/2006, Member States should be allowed to carry-over the profits or losses that they have incurred up to the year 2011 included.

(13)

The measures provided for in this Decision are in accordance with the opinion of the Single Sky Committee,

(1)

traffic forecasted at European Union-wide level, expressed in en route service units: 108 776 000 in 2012, 111 605 000 in 2013 and 114 610 000 in 2014;

(2)

reference determined costs forecasted at European Union-wide level (expressed in real terms, EUR 2009): 6 296 000 000 in 2012, 6 234 000 000 in 2013 and 6 179 000 000 in 2014.