Artikelen bij COM(2023)533 - Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating late payment in commercial transactions

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dossier COM(2023)533 - Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on combating late payment in commercial transactions.
document COM(2023)533 EN
datum 12 september 2023

Inhoudsopgave

Article 1 - Scope

1.This Regulation shall apply to payments made in transactions between undertakings or between undertakings and public authorities, where the public authority is the debtor, which lead to the delivery of goods or the provision of services for remuneration (‘commercial transactions’).

2.The delivery of goods or the provision of services referred to in paragraph 1 shall include the design and execution of public works, construction and civil engineering works.

3.This Regulation shall not apply to any of the following payments:

(a)payments for transactions with consumers;

(b)payments made as compensation for damages, including payments from insurance companies;

(c)payments resulting from obligations that can be cancelled, postponed, or waived under or in relation to insolvency proceedings or restructuring proceedings, including preventive restructuring proceedings under Directive (EU) 2019/1023 55 of the European Parliament and of the Council.

4.With the exception of Article 3(1), this Regulation shall not affect the provisions laid down in Directive (EU) 2019/633.

Article 2 - Definitions

For the purposes of this Regulation, the following definitions shall apply:

(1)‘undertaking’ means any organisation, irrespective of its form and way of financing, carrying out an economic or professional activity independently;

(2)‘public authority’ means any contracting authority, as defined in Article 6(1) of Directive 2014/23/EU, Article 2(1), point (1), of Directive 2014/24/EU or in Article 3(1) of Directive 2014/25/EU;

(3)‘late payment’ means payment not made within the contractual or statutory payment period as set out in Article 3;

(4)‘amount due’ means the sum which should have been paid within the contractual or statutory payment period, as set out in Article 3, including the applicable taxes, duties, levies or charges specified in the invoice or the equivalent request for payment;

(5)‘enforceable title’ means any decision, judgement, order for payment issued by a court or other competent authority, private deed or any other document issued, including those that are provisionally enforceable, whether for immediate payment or payment by instalments, which permits the creditor to have his or her claim against the debtor collected by means of forced execution;

(6)‘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;

(7)‘procedure of acceptance or verification’ means the procedure for ascertaining the conformity of the goods delivered or services provided, with the requirements of the contract;

(8)‘debtor‘ means any natural or legal person or any public authority that owes a payment for a good delivered or a service provided;

(9)‘creditor‘ means any natural or legal person or any public authority that delivered goods to a debtor or provided services to a debtor.

Article 3 - Payment periods

1.In commercial transactions, the payment period shall not exceed 30 calendar days, from the date of the receipt of the invoice or an equivalent request for payment by the debtor, provided that the debtor has received the goods or services. This period shall apply both to the transactions between undertakings and between public authorities and undertakings. The same payment period shall also apply to the supply of non-perishable agricultural and food products on a regular and non-regular basis as referred to in Articles 3(1)(a), point (i), second indent and 3(1)(a), point (ii), second indent of Directive (EU) 2019/633, unless Member States provide for a shorter payment period for such products.

2.A procedure of acceptance or verification may be exceptionally provided for in national law only where strictly necessary due to the specific nature of the goods or services. In that case, the contract shall describe the details of the procedure of acceptance or verification, including its duration.

3.Where the contract provides for a procedure of acceptance or verification, in accordance with paragraph 2, the maximum duration of that procedure shall not exceed 30 calendar days from the date of receipt of the goods or services by the debtor, even if such goods or services are supplied prior to the issuance of the invoice or an equivalent request for payment. In this case, the debtor shall initiate the procedure for acceptance or verification immediately upon reception from the creditor of the goods and/or the services that are the object of the commercial transaction. The payment period shall not exceed 30 calendar days after such procedure has taken place.

4.The payment period set out in paragraph 1 is the maximum payment period and is without prejudice to a shorter period which may be provided for in national law.

Article 4 - Payments to subcontractors in public procurement

1.For public works contracts falling within the scope of Directives 2014/23/EU, 2014/24/EU, 2014/25/EU, and 2009/81/EC 56 of the European Parliament and of the Council, contractors shall provide evidence to contracting authorities or contracting entities within the meaning of those Directives that, where applicable, they have paid their direct subcontractors involved in the execution of the contract within the deadlines and under the conditions set out in this Regulation. The evidence may take the form of a written declaration by the contractor and shall be provided by the contractor to the contracting authority or contracting entity prior to, or at the latest together with, any request for payment.

2.Where the contracting authority or contracting entity has not received the evidence as provided for in paragraph 1 or has information of a late payment by the main contractor to its direct subcontractors, the contracting authority or contracting entity shall notify the enforcement authority of its Member State thereof without delay.

Article 5 - Interest for late payment 

1.In case of late payment, the debtor shall be liable to pay interest for late payment, except where the debtor is not responsible for the payment delay.

2.Interest for late payment shall be automatically due by the debtor to the creditor, without the creditor needing to send a reminder, where the following conditions are satisfied:

(a)the creditor has fulfilled its contractual obligations and obligations provided for by law;

(b)the debtor has received the invoice or equivalent request for payment;

(c)the creditor has not received the amount due specified in the invoice or the equivalent request for payment, within the contractual or statutory payment period as set out in Article 3.

3.It shall not be possible for the creditor to waive its right to obtain interest for late payment.

4.The date of receipt of the invoice, or equivalent request for payment, shall not be subject to a contractual agreement between the debtor and the creditor.

5.The debtor shall provide all relevant information to the creditor to ensure that the creditor’s invoice or equivalent request for payment is accepted and processed by the debtor as soon as it is received.

6.Where the conditions set out in paragraph 2 are satisfied, interest for late payment shall start accruing from the last one of the following events:

(a)receipt by the debtor of the invoice or an equivalent request for payment;

(b)receipt by the debtor of the goods or services.

7.The interest for late payment shall accrue until payment of the amount due.

Article 6 - Rate of the interest for late payment

1.The interest for late payment shall be equal to the reference rate plus 8 percentage points. 

2.Member States whose currency is the euro, shall ensure that the reference rate corresponds to either of the following:

(a)the interest rate applied by the European Central Bank to its main refinancing operations; 

(b)the marginal interest rate resulting from variable-rate tender procedures for the most recent main refinancing operations of the European Central Bank.

3.In Member States whose currency is not the euro the reference rate shall be the rate set by its national central bank.

4.The reference rate for the first semester of the year concerned shall be the rate as determinable on 1 January of that year. The reference rate for the second semester of the year concerned shall be the rate as determinable on 1 July of that year.

Article 7 - Payment schedules

Where payment is done on the basis of schedules providing for instalments, and any of the instalments is not paid by the agreed date, interest for late payment referred to in Article 5, shall be calculated on the basis of any overdue amount. Compensation shall also be paid in accordance with Article 8.

Article 8 - Compensation for recovery costs

1.Where interest for late payment becomes payable in accordance with Article 5, a flat fee compensation for recovery costs shall be automatically due by the debtor to the creditor and shall amount to a fixed sum of EUR 50, per every single commercial transaction.

2.The flat fee compensation referred to in paragraph 1 shall be payable by the debtor to the creditor as a compensation for the creditor’s own recovery costs, without the necessity of a reminder.

3.It shall not be possible for the creditor to waive its right to obtain the flat fee compensation laid down in paragraph 1.

4.In addition to the flat fee compensation referred to in paragraph 1, the creditor shall be entitled to obtain reasonable compensation from the debtor for any recovery costs exceeding that flat fee compensation and incurred due to the debtor’s late payment.

5.This Article shall apply without prejudice to the creditor’s rights to receive any other compensation.

Article 9 - Null and void contractual terms and practices

1.The following contractual terms and practices shall be null and void:

(a)setting the payment period in breach of Article 3;

(b)excluding or limiting the right of the creditor to obtain interest for late payment provided for in Article 5 or the right to obtain compensation for recovery costs provided for in Article 8;

(c)extending the duration of the procedure of verification or acceptance beyond the term set in Article 3(3);

(d)intentionally delaying or preventing the moment of sending the invoice.

2.Member States shall ensure that adequate and effective means exist to end the contractual terms and practices referred to in paragraph 1.

3.The means referred to in paragraph 2 shall include the possibility for an organisation officially recognised as representing creditors or organisations with a legitimate interest in representing undertakings to take action before the courts or before competent administrative bodies.

Article 10 - Retention of title

A creditor shall retain title to goods until they are fully paid for if a retention of title has been expressly agreed between the debtor and the creditor before the delivery of the goods.

Article 11 - Transparency

1.Member States shall ensure transparency regarding the rights and obligations laid down in this Regulation, including by making publicly available the applicable rate of interest for late payment.

2.The Commission shall make publicly available on the internet the current rates of interest for late payment which apply in the Member States.

Article 12 - Recovery procedures for unchallenged claims

1.Creditors shall obtain an enforceable title, including through an expedited procedure and irrespective of the amount of debt, within 90 calendar days of the lodging of the action or application at the court or other competent authority, provided that the debt and the procedure are not disputed.

2.When calculating the period referred to in paragraph 1, the following period shall not be taken into account:

(a)periods for service of documents;

(b)any delays caused by the creditor.

3.This Article shall be without prejudice to the provisions of Regulation (EC) 1896/2006.

Article 13 - Enforcement authorities

1.Each Member State shall designate one or more authorities responsible for the enforcement of this Regulation (‘enforcement authority’).

2.Where appropriate, enforcement authorities shall take measures necessary to ensure that the deadlines for payments are complied with.

3.Enforcement authorities shall cooperate effectively with each other and with the Commission and shall provide each other with mutual assistance in investigations that have a cross-border dimension.

4.Enforcement authorities shall coordinate their activities with other authorities responsible for enforcing other Union or national legislation including through exchange of information obligations.

5.Enforcement authorities shall forward the complaints received regarding late payments in the agricultural and food sector to the competent enforcement authorities under Directive (EU) 2019/633.

Article 14 - Powers of enforcement authorities

1.Enforcement authorities shall have the necessary resources and expertise to perform their duties, and shall have the following powers:

(a)the power to initiate and conduct investigations on their own initiative or based on a complaint;

(b)the power to require creditors and debtors to provide all necessary information to conduct investigations related to late payments in commercial transactions;

(c)the power to carry out unannounced on-site inspections within the framework of their investigations;

(d)the power to take decisions finding an infringement of this Regulation and requiring the debtor to pay interest for late payment as provided for in Article 5 or requiring the debtor to compensate the creditor as provided for in Article 8;

(e)the power to impose, or initiate proceedings for the imposition of fines and other penalties and interim measures on the subjects responsible for the infringement;

(f)the power to require the debtor to bring the infringement to an end;

(g)the power to publish its decisions referred to in paragraphs (d), (e) and (f).

2.Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

3.Member States shall, [by …/without delay], notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them.

Article 15 - Complaints and confidentiality

1.Creditors may address complaints either to the enforcement authority of the Member State in which they are established or to the enforcement authority of the Member States in which the debtor is established. The enforcement authority to which the complaint is addressed shall be competent to enforce this Regulation.

2.Organisations officially recognised as representing creditors or organisations with a legitimate interest in representing undertakings shall have the right to submit a complaint to the enforcement authorities referred to in Article 13 at the request of one or more of their members or, where appropriate, at the request of one or more members of their member organisations, where those members consider that they have been affected by an infringement of this Regulation. 

3.Where the complainant so requests, the enforcement authority shall take the necessary measures for the appropriate protection of the identity of the complainant. The complainant shall identify any information for which it requests confidentiality.

4.The enforcement authority that receives the complaint shall inform the complainant within a reasonable period of time after the receipt of the complaint of how it intends to follow up on the complaint.

5.Where an enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall inform the complainant of the reasons of its decision within a reasonable period of time after the receipt of the complaint.

6.Where an enforcement authority considers that there are sufficient grounds for acting on a complaint, it shall initiate, conduct and conclude an investigation of the complaint within a reasonable period of time.

7.Where an enforcement authority finds that a debtor has infringed this Regulation, it shall require the debtor to bring the illegal practice to an end.

Article 16 - Alternative dispute resolution

1.Without prejudice to the right of creditors to submit complaints under Article 15, and to the obligations and powers of enforcement authorities laid down in Articles 13, 14, and 15, Member States shall promote the voluntary use of effective and independent alternative dispute resolution mechanisms for the settlement of disputes between debtors and creditors.

2.Alternative dispute resolution mechanisms for late payment disputes shall encourage the parties to a dispute to find the solution by themselves and shall be fast, efficient, and cost-effective, while maintaining confidence and trust between the parties. 

Article 17 - Digital tools, credit management and financial literacy training

1.To the extent possible, Member States shall use digital tools for effective enforcement of this Regulation.

2.Member States shall ensure that credit management tools and financial literacy trainings are available and accessible to small and medium sized enterprises, including on the use of digital tools for timely payments.

Article 18 - Report

By [OP: please insert the date = 4years after the entry into force of this Regulation], the Commission shall submit a report on the implementation of this Regulation to the European Parliament and the Council.

Article 19 - Repeal 

Directive 2011/7/EU is repealed.

References to the repealed Directive shall be construed as references to this Regulation.

Article 20 - Entry into force and application

1.This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

2.It shall apply from [OP: please insert the date = 12 months after the date of entry into force of this Regulation]. 

3.Commercial transactions carried out after the date of application of this Regulation shall be subject to the provisions of the present Regulation, including when the underlying contract has been concluded before that date.

This Regulation shall be binding in its entirety and directly applicable in all Member States.