WRITTEN QUESTION E-2837/02 by Jorge Hernández Mollar (PPE-DE) to the Commission. Implementation of Directive 2000/35/EC.
Date: 2002-10-09
Institutions: European Parliament, Provisional data
Subjects: building industry, business management, commercial law, deadline for payment, national implementing measure, small and medium-sized enterprises, subcontracting, unfair terms of contract

14.8.2003

EN

Official Journal of the European Union

C 192 E/79

Confident in the knowledge that the Commission undoubtedly shares the view that EU inventors can no
longer be abandoned to their fate without assistance or significant external help, it would seem logical to
investigate the current situation as regards the Commission’s proposals on enabling EU inventors to
emerge from the obscurity to which they have been consigned through EU negligence and legislative
inertia.

EU inventors are struggling to promote the EU’s level of competitiveness in technology and other areas,
and we should support them in our common cause so as to promote our global competitiveness. When
will the Commission be able to implement a realistic and effective policy of support, and thus reverse the
in comparison with the Community’s main competitors, EU inventors are
current situation whereby,
abandoned and ignored?

Answer given by Mr Bolkestein on behalf of the Commission

(5 November 2002)

The Honourable Member touches upon a very important issue. Whatever other measures might be put in
place to assist Union inventors, their situation will not be fully satisfactory until a true Community patent
is put in place. An affordable patent valid throughout the Community, which is simple to obtain and
which offers a high level of legal certainty, would also without doubt improve the competitiveness of
European industry.

It is therefore highly regrettable that, more than two years after the Commission presented its proposal for
a Regulation on the Community patent (1 August 2000), the discussions in the Council have still not even
resulted in a common approach on the main features of the Community patent. The Commission has
worked unceasingly to facilitate the discussions within the Council, most recently by presenting a working
document on the planned Community patent
the
Competitiveness Council of November 2002 to decide its position on the main issues involved, so that
the more detailed work on the setting up of the Community patent can continue. It should be recalled that
according to the Commission’s approach, not only will the Council have to adopt the Regulation on the
Community patent, but also the European Patent Convention will have to be revised to accommodate the
Community patent, and a Community jurisdiction for handling private party litigation concerning the
validity and infringement of the Community patent will have to be set up.

jurisdiction (30 August 2002).

is now for

It

In addition, several on-going activities are designed to provide operational support to European inventors
initiative (2). Moreover,
and innovators,
within the Community’s 6th Framework Programme for Research and Development, the new rules
applicable to Community-funded projects have been developed in order to better promote the manage-
ment of knowledge and innovation, with corresponding financial support.

including the ‘IPR-Helpdesk’ service (1) and the ‘Gate2Growth’

(1) http://www.ipr-helpdesk.org.
(2) http://www.gate2growth.com.

(2003/C 192 E/079)

WRITTEN QUESTION E-2837/02

by Jorge Hernández Mollar (PPE-DE) to the Commission

Subject: Implementation of Directive 2000/35/EC

(9 October 2002)

In business circles the EU Directive 2000/35/EC (1) of June 2000 has been criticised as lukewarm and
insufficient.
It does, however, represent a step forward for the construction industry, even though
European Parliament recommendations are further-reaching and despite the fact that the issue of payment
delays is not explicitly addressed.

It would be logical for subcontractors in the construction industry to demand payment 30 days after the
completion of an order, in view of the fact that, in general, there is still an 180-day period between the
date of completion of an order and the date of payment.

C 192 E/80

Official Journal of the European Union

EN

14.8.2003

To what degree has the Directive been transposed into national legislation of EU countries since June
2000, and what action might be taken in response to the subcontractors’ repeated call for the inclusion of
rules on fixed payment schedules?

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

Answer given by Mr Liikanen on behalf of the Commission

(4 November 2002)

Enterprises lacking the market power to negotiate short deadlines for payment may challenge standard
purchasing terms before a court or competent administrative body.

Article 3.3 of Directive 2000/35/EC (1) provides that contractual terms that have the effect of exceeding the
30 days period for payment specified in the Directive may be unenforceable, or give rise to a claim for
damages, if they are judged to be grossly unfair.

Member States are obliged to ensure that adequate and effective means exist to prevent the continued use
of such terms, to ensure swift procedures for recovery of unchallenged claims within 90 calendar days and
to provide mechanisms whereby organisations representing smaller enterprises may take legal action.

According to Article 3 paragraphs 3, 4 and 5, an industry association can sue in the name of some of their
members. One of the elements to consider in this context would be the question of whether the main
contractor benefits from relatively short payment periods, but pays his subcontractors according to much
longer payment periods. This case has been foreseen by the above-mentioned Directive, where it is
mentioned in Recital 19 and is addressed under Article 3, paragraphs 3 to 5.

Furthermore, a Member State is free to use Article 3(2) in order to limit the maximum payment period in a
given sector such as the construction industry, to a maximum of 60 days, provided it:

(cid:1) either declares at the same time that payment periods exceeding 60 days are void;

(cid:1) or fixes a mandatory interest rate that substantially exceeds the statutory rate, for instance 20 % per

annum.

Under Article 6, paragraph. 2, a Member State can combine these two measures, that is to say it can fix the
deadline and a high interest rate.

Since the deadline for transposition of Directive 2000/35/EC into national law on 2 August 2002, more
than half the Member States have notified the Commission of their transposing laws. As of 1 October
2002, notification has not yet been received from Greece, Spain, Italy, Luxembourg, the Netherlands,
Austria or Portugal. Up to date information concerning transpositions is posted on the Commission’s
website http://europa.eu.int/comm/enterprise/regulation/late_payments/index.htm.

The Commission has also recently received a formal complaint concerning non-transposition by the
Spanish Government.

As one of its obligations under Directive 2000/35/EC, the Commission has undertaken to review a number
of aspects two years after the transposition deadline. Included in that review will be an assessment of the
impact of the contractual payment periods on commercial practice, and the practical operation of the
legislation. The results will be made known to the Council and the Parliament, accompanied by proposals
for improvement, where appropriate.

(1) Directive 2000/35/EC of

the Parliament and the Council of 29 June 2000 on combating late payment

in

commercial transactions.