Legal provisions of COM(1998)126 - Proposal for a European Parliament and Council Directive combating late payment in commercial transactions - Main contents
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| dossier | COM(1998)126 - Proposal for a European Parliament and Council Directive combating late payment in commercial transactions. |
|---|---|
| document | COM(1998)126  |
| date | June 29, 2000 |
Contents
- CHAPTER - I
- Article 1 - Scope
- Article 2 - Definitions
- CHAPTER I - I
- Article 3 - Due date, interest and compensation for the damage incurred
- Article 4 - Retention of title
- Article 5 - Accelerated recovery procedures for undisputed debts
- Article 6 - Simplified legal procedures for small debts
- CHAPTER II - I
- Article 7 - Transparency in public procurement contracts
- Article 8 - Prompt payment, due date and automatic interest
- CHAPTER I - V
- Article 9 - Committee
- Article 10 - Transposition
- Article 11 - Entry into force
- Article 12 - Addressees
CHAPTER - I
Article 1 - Scope
Article 2 - Definitions
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 authorities, which lead to delivery of goods or provision of services for remuneration;
2. 'late payment` means failure to observe the contractual 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;
4. 'public authorities` means the State, regional or local authorities, bodies governed by public law, or associations formed by one or more of such authorities 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 legal personality, and 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 supervisory board more than half of whose members are appointed by the State, regional or local authorities, or other bodies governed by public law;
5. 'public procurement contracts` means contracts for pecuniary interest concluded in writing between a natural or legal person and public authorities.
CHAPTER I - I
Article 3 - Due date, interest and compensation for the damage incurred
(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;
(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 invoice is earlier than the date of delivery, the due date shall be calculated from the date of delivery of the goods or services;
(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;
(d) interest shall accrue automatically from the day after the due date without the necessity of a reminder;
(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);
(g) in addition to the right to interest, the creditor shall be entitled to claim full compensation from the debtor for the damage incurred.
2. 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 the buyer from paying late and 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.
Article 4 - Retention of title
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.
Member States shall recognise the validity of the clauses contained in the Annex or of clauses having equivalent effect.
2. Paragraph 1 shall apply only to debts payable in a single instalment.
3. Member States shall define the effect of 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.
Article 5 - Accelerated recovery procedures for undisputed debts
2. This procedure shall apply irrespective of the amount of the debt.
3. This procedure shall be available to creditors from all Member States, irrespective of their place of residence.
4. The creditor shall be able to choose whether or not he wishes to be represented by a third person.
5. 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 - Simplified legal procedures for small debts
This sum can if necessary be modified by the Commission to reflect changing economic conditions in accordance with the procedure referred to in Article 9.
These procedures shall be available to creditors from all Member States irrespective of their place of residence.
CHAPTER II - I
Article 7 - Transparency in public procurement contracts
Article 8 - Prompt payment, due date and automatic interest
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 contract shall in no circumstances override that maximum payment period;
2. a creditor shall be entitled to interest from the public authority on any outstanding amount when the due date has been exceeded; the interest 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;
3. the public authority is not permitted to request or require that the creditor waives any of the rights referred to in this Article.
CHAPTER I - V
Article 9 - Committee
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 the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes.
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
When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.
2. Member States may maintain or bring into force provisions which are stricter than the provisions necessary to comply with this Directive.
3. Member States shall communicate to the Commission the text of the mains laws, regulations or administrative provisions which they adopt in the field covered by this Directive.
Article 11 - Entry into force
Article 12 - Addressees
(1) OJ C 323, 21.11.1994, p. 19.
(2) COM(94) 207 final, 3.6.1994.
(3) OJ L 127, 10.6.1995, p. 19.
(4) OJ C 211, 22.7.1996, p. 43.
(5) OJ C 287, 22.9.1997, p. 92.
(6) SEC(97) 1 final, 4.6.1997, pp. 8 and 38.
(7) OJ C 216, 17.7.1997, p. 10.
ANNEX
List of clauses to be recognised by Member States for the purposes of Article 4
ES: «El vendedor conservará la propiedad de los bienes hasta el pago.»
DA: »Varen forbliver sælgerens ejendom, indtil den er betalt.«
DE: 'Die Ware verbleibt bis zur Bezahlung im Eigentum des Verkäufers.'
EL: «Ï ðùëçôÞò ðáñáêñáôåß ôçí êõñéüôçôá ôùí áãáèþí ìÝ÷ñé íá åîïöëçèåß ôï ôßìçìÜ ôïõò.»
EN: 'The goods remain the property of the seller until payment.`
FR: «Les marchandises restent la propriété du vendeur jusqu'au paiement.»
IT: «Le merci restano di proprietà del venditore fino al pagamento.»
NL: 'De waren blijven tot de betaling eigendom van de verkoper.'
PT: «O vendedor conservará a propriedade dos bens até ao momento do pagamento.»
FI: 'Tavara on myyjän omaisuutta, kunnes kauppahinta on maksettu.'
SV: 'Varorna förblir säljarens egendom tills de betalats.'