----

(2004/C 65 E/276)

WRITTEN QUESTION E-3040/03

by Jo Leinen (PSE) to the Commission

(17 October 2003)

Subject:   Application of Directive 2000/35/EC (deadlines for payment) to payments in connection with projects covered by the European Development Fund

Is it true that Directive 2000/35/EC (1), which was to be transposed by the Member States into national law by 8 August 2002 and laid down a 30-day deadline for the payment of invoices, also applies to payment transactions between EU authorities (such as the European Development Fund) and their contractual partners?

In response to an inquiry, a member of the EDF administrative staff told us in March 2003 that she was unaware of the Directive and that the EDF continued to apply a 90-day deadline to the settlement of its accounts. What will the European Commission now do in order to avoid giving the impression that the Union issues generally binding rules which their own bodies feel do not apply to them?

Answer given by Mr Liikanen on behalf of the Commission

(20 November 2003)

Directive 2000/35/EC of the Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions, does not harmonise the payment period at 30 days. The contracting parties may define the payment period as they wish. Article 3(1) of the Directive stipulates that interest shall become payable from the day following the date or the end of the period for payment fixed in the contract. If the date or period for payment is not fixed in the contract, interest automatically becomes payable 30 days following the date of receipt of the invoice or the date of receipt of the goods or services.

The Directive regulates all commercial transactions, including those between undertakings and public authorities, the latter as defined by the Public Procurement Directives (2) 92/50/EEC, 93/36/EEC, 93/37/EEC and 93/38/EEC. The Commission has undertaken to apply the terms of Directive 2000/35/EC (3) to its own contracting procedures, following the provisions set down in the Implementing Rules of the Financial Regulation applicable to the general budget of the European Community (4).

Article 106 of the Implementing Rules states that sums due shall be paid within no more than 45 calendar days from the date on which an admissible payment request is registered by the authorised department of the authorising officer responsible. The payment period shall be 30 calendar days for payments relating to service or supply contracts, save where the contract provides otherwise.

However, the Implementing Rules apply only to the general budget. The European Development Fund (EDF) is not included in the budget but organised and financed on an inter-governmental basis. It has its own specific Financial Regulation adopted on 27 March 2003 and applicable to the 9th European Development Fund (5). The EDF Financial Regulation has to respect the obligations of the Community contained in the Partnership Agreement with the African, Caribbean and Pacific (ACP) States signed on 23 June 2000 in Cotonou (Benin) (6).

In Annex IV of the Agreement, Article 37 (6) lays down that the procedures for clearance, authorisation and payment of expenditure must be completed within a period of 90 days from the date on which the payment becomes due.

Under the Cotonou Agreement, financial management is decentralised to the authorities of the ACP countries. Their National Authorising Officers (NAO) manage EDF programmes. Under the terms of Article 37(6) mentioned above the NAO has 45 days to process and deliver the payment authorisation to the Commission's Head of Delegation responsible for the country concerned. The Commission then has, within the overall 90-days limit, 45 days to complete its internal procedures and make the payment.

This rule contained in the Cotonou Agreement was taken over in Article 67 of the EDF Financial Regulation.

----

(1)OJ L 200, 8.8.2000, p. 35.

(2)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24.7.1992 Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, OJ L 199, 9.8.1993 Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts, OJ L 199, 9.8.1993 Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, OJ L 199, 9.8.1993.

(3)  Directive 2000/35/EC of the Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions, OJ L 200, 8.8.2000, 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.

(4)OJ L 357, 31.12.2002.

(5)OJ L 83, 1.4.2003.

(6)OJ L 317, 15.12.2000.

----