PRESENTATION OF THE STUDY

This Study was ordered by the European Commission DG Entreprise and Industry

Context

The Directive 2000/35/EC of the European Parliament and of the Council aims at combating late payment in commercial transactions (hereafter the « Directive »).  This Directive was adopted following (i) a recommendation dated May 12, 1995, which invited Member States to take the necessary measures to fight against late payments and (ii) a European Commission Communication titled « Report on Late Payments in Commercial Transactions » (97/C 216/07) 5JO C 216, 17.7.1997, p. 10.).

The reasons for adopting the Directive were two fold:

(1) SMEs suffer greatly from late payments.  These late payments and other payment delays impose on SMEs unnecessary administrative and financial burden.  More specifically, late payments are responsible for many cases of insolvency, lead to unemployment and lessen European SME competitiveness.  Late payments in some Member States also constitute an obstacle to the Internal Market in particular because of their importance in some Member States in comparison with the EU average.   

(2) Combating late payments in the Internal Market cannot be realised by Member States acting individually and can best be implemented at the community level.   

Objective

This study aims at verifying whether the content of the Directive and its implementation by Member States has been sufficient to effectively change the situation described in the European Commission Communications titled « Report on Late Payments in Commercial Transactions » (97/C 216/07) 5JO C 216, 17.7.1997, p. 10.), and in particular :

(1)   The role and effectiveness of the Directive on combating late payments:

a.        Statutory rate ;

b.        Contractual payment periods ;

c.        Representation of SMEs by officially recognised organisations or organisations recognised as having a legitimate interest before the courts or before the competent administrative bodies;

d.        contractual terms (especially when deemed “grossly unfair”);

e.        Compensation for all relevant costs;

f.   Retention of title;

f.         Recovery procedures.

(2)   The incidence of late payment by public contracting authorities/private sector and to what extent does it constitute a problem requiring special measures;

(3)   The way, if any, in which late payment hampers the competitiveness of the European enterprise;

(4)   To question enterprises, especially SMEs, on the incidence of late payments (in particular in the main sectors of the economy) updating the results which appear in the aforementioned 1997 Commission Communication;

(5)   Identify and analyse legal concepts appearing in the Directive which might be interpreted differently by national courts and/or administrations and, if necessary, propose means to clarify those aspects of the Directive where differences of interpretation or other difficulties may arise;

(6)   Identify and present a catalogue of commercial good practices;

(7)   Analyse how the public contracting authorities have implemented this regulation;

(8)   Categorise the way the legislation has been put into practice;

(9)   If, as a result of the appraisal, the Directive appears inadequate as a means to combat late payments, to present conclusions and draw up proposals to complement or improve the Directive where appropriate; and

(10) To submit a final evaluation report showing the significance, coherence, usefulness and effectiveness of the Directive.

Implementation

           People :

The team in charge of implementing this project includes 5 main experts (economists and lawyers), research assistants and partners representing the 25 EU Member States. 

           Methodology :

Data related to the Directive and its implementation in each Member State shall be collected from the following sources:       

(1) Publicly available data of a legal or economic nature;