1. Delivers afavourable opinionontheappointmentofMr JanO. Karlssontotheoffice ofMember of
the Court ofAuditors;
2. Instructs its President to forward this opinion to the Council and, for information, to the Court of
Auditors,theotherinstitutionsoftheEuropeanCommunitiesandtheAuditOfficesoftheMemberStates.
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 Gdash C5-0125/1999 Gdash 1998/0099(COD))
(Codecisionprocedure: secondreading)
The European Parliament,
-dash having regard tothe Council commonposition(8790/1/1999-dashC5-0125/1999)(1),
-dash having regard to its position at first reading(2) on the Commission proposal to Parliament and the
Council(COM(1998)126)(3),
-dash having regard tothe Commission’samendedproposal(COM(1998)615)(4),
-dash having regard toArticle 251(2)ofthe EC Treaty,-dash having regard toRule 80ofits Rules ofProcedure,
-dash having regard to the recommendation for second reading of the Committee on Industry, External
Trade, Research andEnergy (A5-0099/1999),
1. Amendsthe commonpositionas follows;
2. Instructsits Presidenttoforward its positiontothe CouncilandCommission.
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
(Amendment1)
Recital 3a (new)
(3a) On 29 May 1997 the Economic andSocial Commit-
tee adopted an opinion on the Commission’s Green Paperon Public Procurement in the European Union: Exploringthe 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 C284,6.10.1999,p. 1.
(2) OJ C313,12.10.1998,p. 142.
(3) OJ C168,3.6.1998,p. 13.
(4) OJ C374,3.12.1998,p. 4.18.10.2000 EN C296/173 Official Journal ofthe European Communities
Thursday 16 December 1999
(Amendment2)
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 competitionwhich shouldbe corrected ;
(Amendment3)
Recital 6b (new)
(6b) In some Member States contractual payment peri-
ods differ significantly from the Community average;
(Amendment4)
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 withother payments, e.g. payments under the laws on cheques andbills of exchange, payments made as compensation fordamagesincluding 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 withother payments, e.g. payments under the laws on cheques andbills of exchange ,o rpayments made as compensation for
damages;
(Amendment5)
Recital 14
(14) Late paymentconstitutesabreach ofcontractwhich has
been made financially attractive to debtors in most MemberStates by lowinterest rates on late payments and/or slowpro-cedures for redress; a decisive shift is necessary to reverse thistrendandtoensurethattheconsequencesoflatepaymentsaresuch astodiscourage late payment;(14) Late paymentconstitutesabreach ofcontractwhich has
been made financially attractive to debtors in most MemberStates by lowinterest rates on late payments and/or slowpro-cedures for redress; a decisive shift is necessary to reverse thistrendandtoensurethattheconsequencesoflatepaymentsaresuchasbothtodiscouragelate payments andto compensate
creditors for the costs incurred ;
(Amendment6)
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 ensurethat creditors are in a position to exercise the retention oftitle throughout the Community, using a single clauserecognisedby all Member States, andthat excessive pay-ment periods and late payments in commercial transac-tions do not distort the functioning of the internal mar-ket;C296/174 EN18.10.2000 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
(Amendment7)
Recital 17b (new)
(17b) Public authorities handle a considerable volume of
payments to businesses; strict payment discipline on thepart of these authorities wouldhave a beneficial trickle-
down effect on the economy as a whole; with regard to
public contracts, contracting enterprises in turn likewisedelay payments to their suppliers and subcontractors,habitually imposing excessive payment periods Gdash prac-tices which seriously damage the interests of many busi-nesses, especially SMEs; for payments executedby theCommission it has already been decided to give certaincreditors the right to receive default interest on late pay-ments;
(Amendment8)
Recital 18
(18) Article4ofthisDirectiverequiresthattherecoverypro-
cedure for unchallenged claims be completed within a shortperiod of time in conformity with national legislation, but does
not require Member States to adopt a specific procedure or to amendtheir existing legal procedures in a specific way;(18) Article4ofthisDirectiverequiresthattherecoverypro-
cedure for unchallenged claims be completed within a shortperiod oftime in conformitywith nationallegislation;
(Amendment9)
Recital 18a (new)
(18a) It is necessary that this Directive address the pro-
blem of long contractual payment periods;
(Amendment10)
Recital 18b (new)
(18b) The term ‘contracting authorities’ shouldcorre-
spond to the definition laid down in Directive 92/50/EEC(
1) andDirective 93/37/EEC(2) andshouldinclud e, for
the purposes of the present Directive, the ‘contractingentities’ 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.
(Amendment11)
Article 2(2a) (new)
2a. ‘retention of title’ means the agreement, irrespective
of any formal requirements, that the seller remainsthe owner of the goods in question until the pricehas been paidin full; the term ‘seller’ shall comprisethe supplier of goods which are to be produced ormanufactured;18.10.2000 EN C296/175 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
(Amendment12)
Article 2(2b) (new)
2b. ‘interest rate appliedby the European Central Bank to
its main refinancing operations’ means the interestrate appliedto such operations in the case of fixedrate tenders. In the event that a main refinancingoperation was conducted according to a variable ratetender procedure, this interest rate refers to the mar-ginal interest rate which resultedfrom that tend er.This applies both in the case of single rate andvari-able rate auctions;
(Amendment13)
Article 2(3a) (new)
3a. ‘contracting authorities’ corresponds to the definition
laidd own in Directive 92/50/EEC andDirective 93/37/EEC and includes the ‘contracting entities’ as definedin Directive 93/38/EEC(
1).
(1) OJ L 199, 9.8.1993, p. 84.
(Amendment14)
Article 2(3b) (new)
3b. ‘public procurement contracts’ means contracts for
pecuniary interest concluded in writing between acontracting authority within the meaning of point 3aandan und ertaking which is not a contracting auth-ority.
(Amendment15)
Article 3(1)(b)
(b) if the date or period for payment is not fixed in the con-
tract, interest shall become payable automatically withoutthe necessity ofa reminder:
(i)30daysfollowingthedateofreceipt bythedebtorof
the invoice oran equivalent request for payment, or
(ii) if the date ofthe receipt of the invoice or the equiva-
lent request for payment is uncertain, 30days after
the date ofreceipt ofthe goodsor services, or
(iii) if the debtor receives the invoice or the equivalent
request forpayment earlier thanthe goodsor theser-vices,30days after the receipt of the goods or ser-
vices, or
(iv) if a procedure of acceptance or verification, by which
the conformity ofthe goodsor services with the con-tract is tobe ascertained, isprovided forbystatute orin the contract and if the debtor receives the invoiceortheequivalentrequestforpaymentearlieroronthedate on which such acceptance or verification takesplace,30daysafter this latter date;(b) if the date or period for payment is not fixed in the con-
tract, interest shall become payable automatically withoutthe necessity ofa reminder:
(i)21daysfollowingthedateofreceipt bythedebtorof
the invoice or anequivalent request for payment, or
(ii) if the date ofthe receipt of the invoice or the equiva-
lent request for payment is uncertain, 21days after
the date ofreceipt ofthe goodsor services, or
(iii) if the debtor receives the invoice or the equivalent
request forpayment earlier thanthe goodsor the ser-vices,21days after the receipt of the goods or ser-
vices, or
(iv) if a procedure of acceptance or verification, by which
the conformity ofthe goodsor services with the con-tract is tobe ascertained, is provided forbystatute orin the contract and if the debtor receives the invoiceortheequivalentrequestforpaymentearlieroronthedate on which such acceptance or verification takesplace,21daysafter this latter date;C296/176 EN18.10.2000 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
(Amendment16)
Article 3(1)(d)
(d) the level of interest for late payment (‘the statutory rate’),
whichthedebtorisobligedtopay,shallbethesumoftheinterest 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 least6percentage points (‘the margin’), unless otherwise speci-
fied in the contract. For a Member State which is notpar-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 bothcases, the reference rate in force on the first central bank
businessday of the half-year in question shall apply for
the following6 months.(d) the level of interest for late payment (‘the statutory rate’),
whichthedebtorisobligedtopay,shallbethesumoftheinterest rate appliedbythe European Central Bank to its
most recent main refinancing operation carriedoutbefore the first calendar day ofthe half-year in question
(‘the reference rate’), plus at least 8percentage points (‘the
margin’), unless otherwise specified in the contract. For aMember State which is not participating in the third stageof 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 inforceonthefirst calendardayofthehalf-yearinquestion
shallapply for the following6months.
(Amendment17)
Article 3(1)(da) (new)
(da) in addition to the right to interest, the creditor shall
be entitledto claim compensation from the d ebtor forthe losses incurredthrough 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-pensatedby 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.
(Amendment19)
Article 3(3)
3. MemberStatesshallensurethatanagreementonthedate
for payment or on the consequences of late payment which isnot in line with the provisions of paragraphs 1 and 2 eithershall not be enforceable or shall give rise to a claim fordamages if, when all circumstances of the case, includinggood commercial practice, are considered, it is grossly unfairto the creditor. If such an agreement is determined to begrossly unfair, the statutory terms will apply, unless thenationalcourtsdetermine different conditionswhich are fair.3. MemberStatesshallensurethatanagreementonthedate
for payment or on the consequences of late payment which isnotinlinewiththeprovisionsofparagraphs1( b) to (d)and2
either shall not be enforceable or shall give rise to a claim fordamagesif, when allcircumstances ofthe case, including goodcommercial practice andthe nature of the prod uct , are con-
sidered, it is grossly unfair to the creditor. In determining
whether an agreement is grossly unfair to the creditor, itwill be taken into account whether the debtor has any18.10.2000 EN C296/177 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
objective reason to deviate from the provisions of para-
graphs 1 (b) to (d) and 2 or whether the agreement mainlyserves 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 termswillapply,unlessthenationalcourtsdeterminedifferentcondi-tionswhich are fair.
3a. Member States shall ensure that, in the interests of
creditors and of competitors, adequate and effectivemeans exist to prevent the continueduse of terms whichare grossly unfair within the meaning of paragraph 3.
3b. The means referredto in paragraph 3a shall includ e
provisions whereby persons or organisations representingthe interests of small andmed ium-sizedenterprises, asdefined in Commission Recommendation 96/280/EC(
1),
may take action according to the national law concernedbefore the courts or before competent administrativebodies for a decision as to whether contractual termsdrawn up for general use are grossly unfair within themeaning of paragraph 3, so that they can apply appropri-ate andeffective means to prevent the continueduse ofsuch 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 orrecommendthe use of the same general contractualterms or similar terms.
(1) OJ L 107, 30.4.1996, p. 4.
(Amendment20)
Article 3a (new)
Article 3a
Retention of title1. Member States shall ensure that the seller retains
title to durable and/or capital goods if a retention of titleclause has been agreed. Apart from an individual contract,
such an agreement shall be considered valid if the reten-
tion of title clause is containedin the seller’s stand ardcontract, to which the buyer has not objected. No otherformality shall be required.
2. Member States shall recognise the validity of the
clauses in the Annex, or of clauses having equivalenteffect.
3. Once the periodfor payment has passedwithout the
buyer having paid, the seller may demand that the goodsin question be returnedto him. Member States shall pro-vide for retention of title to be enforceable against thirdparties, even in the case of bankruptcy of the debtor or inthe case of any other procedure recognised as being simi-lar under the legislation of the Member States. No laterC296/178 EN18.10.2000 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
than when the buyer takes possession of the goods, he
becomes responsible for any damage to or loss of thegoods.
4. Member States may adopt provisions dealing with
down-payments already made by the debtor. They maylimit or exclude recourse to retention of title in the fol-lowing cases:
(a) where a thirdparty has acquiredthe good s in ques-
tion in goodfaith;
(b) where the goods in question have been incorporated
into or mixedwith other good s, unless the processcan be reversedwithout causing significant d amageto the other goods.
(Amendment21)
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 contractingauthorities, even if these payment periods and deadlinesare determined in general contract conditions laid downby law. In particular, time limits shall be set for the com-pletion of pre-payment administrative formalities, such aspublic works reception procedures. A similar obligation oftransparency shall apply in the relationship between amain contractor anda subcontractor carrying out publicworks.
(Amendment22)
Article 3c (new)
Article 3c
Prompt payment, default date and automatic interestMember States shall ensure that:1. the periodfor payment of contractual d ebts by the
contracting authorities as determined under Article3(1)(a) to (c) is not more than 45 calendar days except
where the value of the contract exceeds €100000, in
which case the maximum periodfor payment shall be60 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 suppliersandsubcontractors which are at least as favourable asthose grantedto the main contractor by the contractingauthority; in order to guarantee these conditions to sup-pliers andsubcontractors, the main contractor shall berequired to provide a guarantee made out to the supplieror subcontractor covering payment of all the amounts18.10.2000 EN C296/179 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
owed. This guarantee shall be executable upon expiry of
60 calendar days from the date of submission of theinvoice to the main contractor by the supplier or subcon-
tractor. The same conditions shall apply between the main
contractor andthe contracting authority;
2. a creditor is entitled to interest from the contracting
authority on any amount outstanding when the defaultdate has passed; the interest shall be calculated as set outin Article 3(1)(d), and shall be paid automatically by thecontracting authority without the necessity of a claim;
3. the contracting authority is not permittedto request
or require that the creditor waive any of the rightsreferredto in this Article, nor may the cred itor requestor require that his suppliers or subcontractors waivethose rights.
(Amendment23)
Article 4(1) to (3)
1. Member States shall ensure that an enforceable title can
be obtained, irrespective of the amount of the debt, normallywithin90calendar 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 dutyshallbecarried outbyMember Statesin con-formity with their respective national legislation, regulationsandadministrative provisions.
2. The respective national legislation, regulations and
administrative provisions shall apply the same conditions forallcreditors who are estblishedin the European Community.
3. The 90-calendar-day period referred to in paragraph 1
shallnotinclude the following:
(a) periods forservice ofdocuments,(b) any delayscaused bythe creditor, such as periodsdevoted
tocorrecting invalid applications.1. Member States shall ensure that an enforceable title can
be obtained, irrespective of the amount of the debt, normallywithin60calendar 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 dutyshallbe carried outbyMember Statesin con-formity with their respective national legislation, regulationsandadministrative provisions.
2. The respective national legislation, regulations and
administrative provisions shall apply the same conditions forallcreditors who are estblishedin the European Community.
3. The 60-calendar-day period referred to in paragraph 1
shallnotinclude the following:
(a) periodsfor service ofdocuments,(b) any delayscaused bythe creditor, such asperiodsdevoted
tocorrecting invalid applications.
(Amendment24)
Article 5(3)(ba) (new)
(ba) claims for interest of less than €5.
(Amendment25)
Article 5(5)
5. The Commission shall undertake for at least the first
three years after …* an annual reviewof, inter alia, the statu-tory rate to assess the impact on commercial transactions andthe operation of the legislation in practice. The results of this5. The Commission shall undertake for at least the first
three years after …* an annual reviewof, inter alia, the statu-tory rate, contractual payment periods and late payments,
to assess the impact on commercial transactions and theC296/180 EN18.10.2000 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT
review and of other reviews will be made known to the Euro-
pean Parliament andthe Council.operation of the legislation in practice. The results of this
review and of other reviews will be made known to the Euro-peanParliamentandtheCouncil , accompaniedwhere appro-
priate by proposals for improvement of this Directive .
(Amendment26)
Annex (new)
ANNEX
List of clauses to be recognisedby Member States for the
purposes of Article 3a
ES: ‘El vendedor conservará la propiedad de los bienes
hasta el pago final.’
DA: ‘Varen forbliver sælgerens ejendom, indtil den er
fuldstændig betalt.’
DE: ‘Die Ware bleibt bis zur vollständigen Bezahlung im
Eigentum des Verkäufers.’
EL:‘Ο πωλητη ΄ς παρακρατει ΄την κυριο ΄τητα των αγαθω ΄νµ ε΄χρι
την πλη ΄ρη εξο ΄φληση του τιµη ΄µατος’
EN: ‘The goods remain the property of the seller until
fully paid.’
FR: ‘Les marchandises restent la propriété du vendeur jus-
qu’au paiement complet.’
IT: ‘Le merci restano di proprietà del venditore fino al
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.’18.10.2000 EN C296/181 Official Journal ofthe European Communities
Thursday 16 December 1999
COMMON POSITION
OF THE COUNCILAMENDMENTS
BY PARLIAMENT