Activities of Claude GRUFFAT related to 2023/0323(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on combating late payment in commercial transactions
Amendments (43)
Amendment 26 #
Proposal for a regulation
Recital 2
Recital 2
(2) Many payments in commercial transactions between economic operators or between economic operators and public authorities are made later than agreed in the contract or laid down in the general commercial conditions or by law, although the goods are delivered or the services provided.
Amendment 27 #
Proposal for a regulation
Recital 3
Recital 3
(3) Late payments and deferred payments beyond the periods established by law directly affect liquidity and predictability of cash flows, thus increasing working capital needs and compromising a company’s access to external financingprofitability, when the creditor needs to obtain external financing because of late payment. This affects competitiveness, reduces productivity and hiring, leads to redundancies, increases the likelihood of insolvencies and bankruptcies and is a critical barrier for growth, also considering that inflation reduces the real value of credits over time. The damaging effects of late payments spread along supply chains, as the payment delay is often passed onto suppliers. Small and medium sized enterprises (SMEs), who rely on regular and predictable streams of cash, are heavily affected by those negative consequences. Late payment thus represents a problem for the Union economy because of its negative economic and social consequences. The risk of such negative effects strongly increases in periods of economic downturn when access to financing is more difficult.
Amendment 32 #
Proposal for a regulation
Recital 6
Recital 6
(6) Directive 2011/7/EU of the European Parliament and of the Council40 lays down rules to combat late payment in commercial transactions. In 2019, the European Parliament identified several shortcomings of that Directive. The SME Strategy for a sustainable and digital Europe41 called for ensuring a ‘late- payment-free’ environment for SMEs and strengthening the enforcement of Directive 2011/7/EU. In 2021, the Fit for Future Platform highlighted critical issues in the implementation of that Directive in its opinion. The main shortcomings identified in these initiatives are related to: the ambiguous provisions on ‘grossly unfair’ regarding the deadlines for payment in business to business transactions (B2B), the unfair payment practices and the deadlines for the procedures of acceptance and verification; the flat fee compensation; the asymmetry of rules for payments terms between G2B and B2B transactions; the asymmetries in bargaining power between large and more powerful debtors and small creditors; the lack of a maximum payment term for commercial transactions in B2B transactions; the lack of monitoring of compliance and enforcement; the absence of tools to combat the asymmetries of information; as well as tools for creditors to take action against their debtors, and the lack of synergies with the public procurement framework. __________________ 40 Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (OJ L 48, 23.2.2011, p. 1). 41 COM (2020) 103 final.
Amendment 39 #
Proposal for a regulation
Recital 10
Recital 10
(10) Transactions with consumers, payments made as compensation for damages, including payments from insurance companies, interests in connection with other payments, for instance payments under the laws on cheques and bills of exchange, and obligations to pay that can be cancelled, postponed, or waived under or in relation to insolvency proceedings or restructuring proceedings, including preventive restructuring proceedings under Directive (EU) 2019/102342 of the European Parliament and of the Council, should be excluded from the scope of this Regulation. __________________ 42 Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (OJ L 172, 26.6.2019, p. 18).
Amendment 42 #
Proposal for a regulation
Recital 11
Recital 11
(11) Late payment constitutes a breach of contract which is financially attractive to debtors, due to low or no interest rates charged on late payment, or slow procedures for redress. A decisive shift to a culture of prompt payment, including one in which the exclusion of the right to charge interest for late payment is null and void, is necessary to reverse this trend and to discourage late payment. Consequently, contractual payment periods should be limited to 30 calendar days both in B2B transactions and G2B transactions, where the public authority is the debtor. This shift is also needed to limit the so-called ‘fear factor’ that micro and small undertakings suffer when they have a credit with bigger companies and that often brings such creditors to tolerate late payment against the promise of future business.
Amendment 47 #
Proposal for a regulation
Recital 11 a (new)
Recital 11 a (new)
(11a) National laws already provide flexibility for debtors, since the allowed time period between the receipt of the goods and services and the receipt of the invoice varies across Member States. Therefore, such a time period allows debtors to have more than 30 calendar days to pay their creditors from the moment they receive the goods or services and consequently from the moment they can use or sell such goods or services. In case where micro, small and medium undertakings are the debtors, this time period allows them to have more flexibility, in particular when dealing with slow moving goods or with goods that have a low turnover rate. However, where the creditors are micro-undertakings and the debtors are large undertakings, the asymmetry of bargaining power can bring about a significant extension of this time period in order to delay the final payment. To avoid this possibility and to allow micro-undertakings to be factually paid within 30 days by large undertakings, micro-undertakings should provide the invoice together with the goods and services.
Amendment 54 #
Proposal for a regulation
Recital 12
Recital 12
(12) The procedures of acceptance or verification for ascertaining the conformity of the goods or services provided with the requirements of the contract, as well as verification of the correctness and conformity of the invoice, are often used to delay intentionally the payment period. Their inclusion in the contract should therefore be objectively justified by the particular nature of the contract in question or by certain of its characteristics43 that would require an extensive and detailed verification. It should therefore be possible to provide for such procedure of verification or acceptance in a contract only when provided for in the national law of the Member State in which the creditor is established where necessary, due to the specific nature of the goods or services. To avoid that the procedure of acceptance or verification is used to extend the payment period, the contract should clearly describe the details of such procedure, including its duration. For the same purpose, the debtor should initiate the verification or acceptance procedure immediately upon reception from the creditor of the goods and/or the services that are the object of the commercial transaction, regardless of whether the creditor has issued an invoice or equivalent request for payment. In order not to jeopardise the achievement of the objectives of this Regulation, it is appropriate to set a maximum duration of a procedure of acceptance or verification. __________________ 43 Judgment of 20 October 2022, BFF Finance Iberia SAU v Gerencia Regional de Salud de la Junta de Castilla y León (OJ C 53, 15.2.2021, p. 19) C585/20, EU:C:2022:806, paragraph 53.
Amendment 62 #
Proposal for a regulation
Recital 14
Recital 14
(14) Public procurement can play a significant role in improving payment performance. Enhanced synergies should therefore be put in place between public procurement policies and rules and prompt payment objectives. Particularly introducing effective measures to discourage not only late payment by public authorities, but also the awarding of contracts to companies that do not pay on time and in the manner prescribed by this Regulation. Furthermore, in public construction works, subcontractors are often not paid on time by the main contractor, even when the contracting authorities or contracting entities have made the contractual payments to them, thus potentially creating a damaging domino-effect in the supply chain. It is therefore appropriate that contractors provide evidence to contracting authorities and contracting entities of payments to their direct subcontractors.
Amendment 70 #
Proposal for a regulation
Recital 22
Recital 22
(22) To enhance the efforts to prevent the abuse of freedom of contract to the detriment of creditors, organisations officially recognised as representing creditors or organisations with a legitimate interest in representing undertakings should be able to take action before national courts or administrative bodies in order to prevent late payments and to end null and void contractual terms and practices.
Amendment 72 #
Proposal for a regulation
Recital 23
Recital 23
(23) To guarantee full payment of the amount due, it is important to ensure that the seller as a creditor retains the title to goods until they are fully paid for, if a retention of title has been expressly agreed between the buyer and the selles a debtor and the seller as a creditor before the delivery of the goods.
Amendment 74 #
Proposal for a regulation
Recital 24
Recital 24
(24) To ensure correct application of this Regulation, it is important to provide transparency regarding the rights and obligations as laid down by this Regulation. To ensure that the correct rates of interest are applied, it is important that they are made public by the Member States and the Commission. In order to contribute to the achievement of the objective of this Regulation, Member States should increase awareness of the remedies for late payment among undertakings through publications and campaigns and should foster the spread of good practices, including by encouraging the publication of a list of prompt payers.
Amendment 76 #
Proposal for a regulation
Recital 25
Recital 25
(25) The sanctions for late payment can be dissuasive only if they are accompanied by procedures for redress which are rapid and effective for the creditor. Expedient recovery procedures for unchallenged claims should therefore be available to all creditors who are established in the Union, in accordance with the principle of non- discrimination set out in Article 18 of the Treaty on the Functioning of the European Union.
Amendment 81 #
Proposal for a regulation
Recital 28
Recital 28
(28) Invoices trigger requests for payment and are important documents in the chain of transactions for the supply of goods and services, inter alia, for determining payment deadlines. It is important to promote systems that give legal certainty as regards the exact date of receipt of invoices by the debtors, including in the field of e-invoicing where the receipt of invoices could generate electronic evidence and can also help improving compliance with VAT obligations, and which is partly governed by the provisions on invoicing contained in Council Directive 2006/112/EC49 and Directive 2014/55/EC50 of the European Parliament and the Council. __________________ 49 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1). 50 Directive 2014/55/EU of the European Parliament and of the Council of 16 April 2014 on electronic invoicing in public procurement (OJ L 133, 6.5.2014, p. 1).
Amendment 84 #
Proposal for a regulation
Recital 29
Recital 29
(29) Effective access of undertakings, especially of SMEs, to credit management and financial literacy training can have a significant impact in reducing payment delays, maintaining optimal cash flows, reducing the risk of default and increasing the potential for growth. Nevertheless, SMEs often lack the capacity to invest in such training, while very limited trainings and training material focusing on enhancing SMEs’ knowledge of credit and invoice management are currently available. It is therefore appropriate to provide that Member States need to ensure that credit management and financial literacy trainings are available and accessible to SMEs, including on the use of digital tools for timely payments. To this end, Member States should guarantee adequate resources to these measures by allocating a portion of sanctions collected by enforcement authorities for breaches of this Regulation.
Amendment 96 #
Proposal for a regulation
Article 1 – title
Article 1 – title
Subject matter and scope
Amendment 97 #
Proposal for a regulation
Article 1 – paragraph -1 (new)
Article 1 – paragraph -1 (new)
-1. The aim of this Regulation is to combat late payment in commercial transactions, in order to ensure the proper functioning of the internal market, thereby fostering the competitiveness of undertakings and in particular of micro- enterprises and SMEs.
Amendment 113 #
Proposal for a regulation
Article 2 – paragraph 1 – point -1 (new)
Article 2 – paragraph 1 – point -1 (new)
(-1) ‘commercial transactions’ means transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration;
Amendment 127 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
(8) ‘debtor‘ means any natural or legal person or any public authority that owes a payment beyond the payment period set out in Article 3 for a good delivered or a service provided;
Amendment 128 #
Proposal for a regulation
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
(9) ‘creditor‘ means any natural or legal person or any public authority that delivered goods to a debtor or provided serviceshas not received a payment within the payment period set out in Article 3 for a good delivered or a service provided to a debtor.
Amendment 165 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1a. Without prejudice to paragraph 1, micro-undertakings, which provide goods or services to undertakings that do not fall under the definition of micro, small, and medium-sized enterprises as defined in the Commission Recommendation 2003/361/EC, shall send the invoice together with the goods or services.
Amendment 191 #
Proposal for a regulation
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. Member States shall ensure that an undertaking which is a creditor within the meaning of Article 2(9) is able to obtain upon request to the public authority which has not paid the amount due within the maximum payment period set out in paragraph 1, the offsetting of the amount due against any outstanding amount that the creditor has towards the same public authority.
Amendment 209 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. For public works contracts falling within the scope of Directives 2014/23/EU, 2014/24/EU, 2014/25/EU, and 2009/81/EC56 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 set out in Article 3 of this Regulation and under the conditions set out in this Regulation. The evidence mayshall take the form of a written declaration by the contractor, which includes an official document stating the date of receipt of payment by the subcontractor 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. to the contracting authority or contracting entity. __________________ 56 Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC.
Amendment 217 #
Proposal for a regulation
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Member States shall ensure that, for public works contracts referred to in paragraph 1, contracting authorities include in the contract notice a demerit criterion for undertakings to which measures referred to in Article 14(1)(d) have been addressed and which have not been challenged within the time limits laid down by relevant legislation or upheld by judicial or administrative review.
Amendment 220 #
Proposal for a regulation
Article 4 – paragraph 2 b (new)
Article 4 – paragraph 2 b (new)
2b. For public works contracts falling within the scope of Directives 2014/23/EU, 2014/24/EU, 2014/25/EU and 2009/81/EC, Member States shall ensure that an undertaking which is a creditor within the meaning of Article 2(9) is able to obtain, upon request to the contracting authority which has not paid the amount due within the maximum payment period set out in Article 3 (1), the offsetting of the amount due against any outstanding amount that the creditor has towards the same public authority.
Amendment 226 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. In case of late payment, the debtor shall be liable to pay interest for late payment to the creditor, except where the debtor is not responsible for the payment delay.
Amendment 244 #
Proposal for a regulation
Article 5 – paragraph 6 – introductory part
Article 5 – paragraph 6 – introductory part
6. Where the conditions set out in paragraph 2 are satisfied, interest for late payment shall start accruing from30 days after the last one of the following events:
Amendment 254 #
Proposal for a regulation
Article 6 – paragraph 3 a (new)
Article 6 – paragraph 3 a (new)
3a. In case of transborder operations, the reference rate shall be the rate set by the national central bank in which the creditor is established.
Amendment 277 #
Proposal for a regulation
Article 9 – paragraph 1 – point d a (new)
Article 9 – paragraph 1 – point d a (new)
(da) using means of payment altering payment terms.
Amendment 286 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
A creditor shall retain title to any goods until they areit is fully paid for if a retention of title has been expressly agreed between the debtor and the creditor before the delivery of the goods. In case of contracts in which a retention of title has been expressly agreed, such as consignment agreements, the payment period laid down in Article 3 (1) shall start from the date of the receipt of the invoice or an equivalent request for payment by the supplier of goods, provided that the title to such goods has already been transferred to the debtor.
Amendment 288 #
Proposal for a regulation
Article 11 – title
Article 11 – title
Transparency and awareness raising
Amendment 292 #
Proposal for a regulation
Article 11 – paragraph 2 a (new)
Article 11 – paragraph 2 a (new)
2a. Member States shall, where appropriate, use professional publications, promotion campaigns or any other functional means to increase awareness of the remedies for late payment among undertakings.
Amendment 313 #
Proposal for a regulation
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1a. Enforcement authorities shall be independent from public authorities involved in public procurement procedures.
Amendment 316 #
Proposal for a regulation
Article 13 – paragraph 1 b (new)
Article 13 – paragraph 1 b (new)
1b. Member States shall notify the Commission, without undue delay, of the enforcement authorities designated under paragraph 1. The Commission can require the Member States to prove the independency of such enforcement authorities.
Amendment 324 #
Proposal for a regulation
Article 13 – paragraph 3
Article 13 – paragraph 3
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. The Commission shall supervise the effective cooperation of the enforcement authorities.
Amendment 329 #
Proposal for a regulation
Article 13 – paragraph 4
Article 13 – paragraph 4
4. Enforcement authorities shall coordinate their activities with other authorities responsible for enforcing other Union or national legislation including through exchange of information obligations, as well as with those authorities responsible for the allocation of public funds in order not to grant such funds to undertakings which are not in conformity with the maximum payment period set out in Article 3.
Amendment 335 #
Proposal for a regulation
Article 13 – paragraph 5 a (new)
Article 13 – paragraph 5 a (new)
5a. Every 2 years, Member States shall submit a report to the Commission specifying the actions carried out in relation to Article 14 (1) and the details of the penalties applied as set out in Article 14 (2).The Commission shall send the report to the EU Payment Observatory and to the EU SME Envoy.
Amendment 342 #
Proposal for a regulation
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
1. Enforcement authorities shall have the necessary human, financial and technical resources and expertise to perform their duties in an effective manner, and shall have the following powers:
Amendment 352 #
Proposal for a regulation
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2a. Member States shall ensure that an adequate portion of the penalties collected by the enforcement authorities contributes to the financing of the measures referred to in Article 17 of this Regulation.
Amendment 354 #
Proposal for a regulation
Article 14 a (new)
Article 14 a (new)
Article 14a Reporting obligations 1. Public authorities and undertakings that do not fall under the definition of micro, small and medium-sized enterprises as defined in Recommendation 2003/361/EC shall report on a yearly basis on their payment practices. Member States shall transmit their data to the EU Payment Observatory. 2. Reporting obligation referred to in paragraph 1 shall contain, at least: (a) the amount, in EUR, of invoices paid; (b) the amount, in EUR, of invoices received; (c) the average time to pay an invoice. 3. The report referred to paragraph 1 shall be submitted by the undertakings referred to in paragraph 1 to the enforcement authorities referred to in Article 13 and be accessible to the public.
Amendment 360 #
Proposal for a regulation
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. By ... [OP: 12 months after the entry into force of this Regulation], the Commission shall provide Member States with templates allowing undertakings to submit complaints. Member States shall make such templates available to the organisations representing undertakings and to the enforcement authorities, which shall ensure that the templates are easily accessible to undertakings, in particular to micro-undertakings and SMEs.
Amendment 382 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall ensure that credit management tools and, financial literacy trainings and any other initiatives that tackle late payment are available and accessible to small and medium sized enterprises, including on the use of digital tools for timely payments.
Amendment 391 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
By [OP: please insert the date = 43 years 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 and every 3 years thereafter. The report shall assess the impact of this Regulation on specific sectors, in particular in sectors where goods have a low turnover rate, and it shall assess the impact on business models, in particular on the contractual agreements based on the retention of title.
Amendment 398 #
Proposal for a regulation
Article 19 – paragraph 2 a (new)
Article 19 – paragraph 2 a (new)
However, from [the date of application of this Regulation] until [24 months after the entry into force of this Regulation], it shall continue to apply to the situations where micro-undertakings referred to in Article 2(3) of the Annex to Recommendation 2003/361/EC are debtors.