title: Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions  Text with EEA relevance

text:
               23.2.2011

               EN

               Official Journal of the European Union

               L 48/1

         DIRECTIVE 2011/7/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
   of 16 February 2011
   on combating late payment in commercial transactions
   (recast)
   (Text with EEA relevance)
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,
   Having regard to the proposal from the European Commission,
   Having regard to the opinion of the European Economic and Social Committee (1),
   Acting in accordance with the ordinary legislative procedure (2),
   Whereas:

               (1)

               A number of substantive changes are to be made to Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (3). It is desirable, for reasons of clarity and rationalisation, that the provisions in question be recast.

               (2)

               Most goods and services are supplied within the internal market by economic operators to other economic operators and to public authorities on a deferred payment basis whereby the supplier gives its client time to pay the invoice, as agreed between parties, as set out in the supplier’s invoice or as laid down by law.

               (3)

               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. Although the goods are delivered or the services performed, many corresponding invoices are paid well after the deadline. Such late payment negatively affects liquidity and complicates the financial management of undertakings. It also affects their competitiveness and profitability when the creditor needs to obtain external financing because of late payment. The risk of such negative effects strongly increases in periods of economic downturn when access to financing is more difficult.

               (4)

               Judicial claims related to late payment are already facilitated by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (4), Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (5), Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (6) and Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (7). However, in order to discourage late payment in commercial transactions, it is necessary to lay down complementary provisions.

               (5)

               Undertakings should be able to trade throughout the internal market under conditions which ensure that transborder operations do not entail greater risks than domestic sales. Distortions of competition would ensue if substantially different rules applied to domestic and transborder operations.

               (6)

               In its Communication of 25 June 2008 entitled ‘ “Think Small First” — A “Small Business Act” for Europe’, the Commission emphasised that small and medium-sized enterprises’ (SMEs) access to finance should be facilitated and that a legal and business environment supportive of timely payments in commercial transactions should be developed. It should be noted that public authorities have a special responsibility in this regard. The criteria for the definition of SMEs are set out in Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (8).

               (7)

               One of the priority actions of the Commission Communication of 26 November 2008 entitled ‘European Economic Recovery Plan’ is the reduction of administrative burdens and the promotion of entrepreneurship by, inter alia, ensuring that, as a matter of principle, invoices, including to SMEs, for supplies and services are paid within 1 month to ease liquidity constraints.

               (8)

               The scope of this Directive should be limited to payments made as remuneration for commercial transactions. This Directive should not regulate transactions with consumers, interest in connection with other payments, for instance payments under the laws on cheques and bills of exchange, or payments made as compensation for damages including payments from insurance companies. Furthermore, Member States should be able to exclude debts that are subject to insolvency proceedings, including proceedings aimed at debt restructuring.

               (9)

               This Directive should regulate all commercial transactions irrespective of whether they are carried out between private or public undertakings or between undertakings and public authorities, given that public authorities handle a considerable volume of payments to undertakings. It should therefore also regulate all commercial transactions between main contractors and their suppliers and subcontractors.

               (10)

               The fact that the liberal professions are covered by this Directive should not oblige Member States to treat them as undertakings or merchants for purposes outside the scope of this Directive.

               (11)

               The delivery of goods and the provision of services for remuneration to which this Directive applies should also include the design and execution of public works and building and civil engineering works.

               (12)

               Late payment constitutes a breach of contract which has been made financially attractive to debtors in most Member States by low or no interest rates charged on late payments and/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 should always be considered to be a grossly unfair contractual term or practice, is necessary to reverse this trend and to discourage late payment. Such a shift should also include the introduction of specific provisions on payment periods and on the compensation of creditors for the costs incurred, and, inter alia, that the exclusion of the right to compensation for recovery costs should be presumed to be grossly unfair.

               (13)

               Accordingly, provision should be made for business-to-business contractual payment periods to be limited, as a general rule, to 60 calendar days. However, there may be circumstances in which undertakings require more extensive payment periods, for example when undertakings wish to grant trade credit to their customers. It should therefore remain possible for the parties to expressly agree on payment periods longer than 60 calendar days, provided, however, that such extension is not grossly unfair to the creditor.

               (14)

               In the interest of consistency of Union legislation, the definition of ‘contracting authorities’ in Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (9) and in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public services contracts (10) should apply for the purposes of this Directive.

               (15)

               Statutory interest due for late payment should be calculated on a daily basis as simple interest, in accordance with Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (11).

               (16)

               This Directive should not oblige a creditor to claim interest for late payment. In the event of late payment, this Directive should allow a creditor to resort to charging interest for late payment without giving any prior notice of non-performance or other similar notice reminding the debtor of his obligation to pay.

               (17)

               A debtor’s payment should be regarded as late, for the purposes of entitlement to interest for late payment, where the creditor does not have the sum owed at his disposal on the due date provided that he has fulfilled his legal and contractual obligations.

               (18)

               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. For the purposes of this Directive, Member States should 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 which is partly governed by the provisions on invoicing contained in Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (12).

               (19)

               Fair compensation of creditors for the recovery costs incurred due to late payment is necessary to discourage late payment. Recovery costs should also include the recovery of administrative costs and compensation for internal costs incurred due to late payment for which this Directive should determine a fixed minimum sum which may be cumulated with interest for late payment. Compensation in the form of a fixed sum should aim at limiting the administrative and internal costs linked to the recovery. Compensation for the recovery costs should be determined without prejudice to national provisions according to which a national court may award compensation to the creditor for any additional damage regarding the debtor’s late payment.

               (20)

               In addition to an entitlement to payment of a fixed sum to cover internal recovery costs, creditors should also be entitled to reimbursement of the other recovery costs they incur as a result of late payment by a debtor. Such costs should include, in particular, those incurred by creditors in instructing a lawyer or employing a debt collection agency.

               (21)

               This Directive should be without prejudice to the right of Member States to provide for fixed sums for compensation of recovery costs which are higher and therefore more favourable to the creditor, or to increase those sums, inter alia, in order to keep pace with inflation.

               (22)

               This Directive should not prevent payments by instalments or staggered payments. However, each instalment or payment should be paid on the agreed terms and should be subject to the rules for late payment set out in this Directive.

               (23)

               As a general rule, public authorities benefit from more secure, predictable and continuous revenue streams than undertakings. In addition, many public authorities can obtain financing at more attractive conditions than undertakings. At the same time, public authorities depend less than undertakings on building stable commercial relationships for the achievement of their aims. Long payment periods and late payment by public authorities for goods and services lead to unjustified costs for undertakings. It is therefore appropriate to introduce specific rules as regards commercial transactions for the supply of goods or services by undertakings to public authorities, which should provide in particular for payment periods normally not exceeding 30 calendar days, unless otherwise expressly agreed in the contract and provided it is objectively justified in the light of the particular nature or features of the contract, and in any event not exceeding 60 calendar days.

               (24)

               However, account should be taken of the specific situation of public authorities carrying out economic activities of an industrial or commercial nature by offering goods or services on the market as a public undertaking. For that purpose, Member States should be allowed, under certain conditions, to extend the statutory payment period up to a maximum of 60 calendar days.

               (25)

               A particular cause for concern in connection with late payment is the situation of health services in a large number of Member States. Healthcare systems, as a fundamental part of Europe’s social infrastructure, are often obliged to reconcile individual needs with the available finances, as the population of Europe ages, as expectations rise, and as medicine advances. All systems have to deal with the challenge of prioritising healthcare in a way that balances the needs of individual patients with the financial resources available. Member States should therefore be able to grant public entities providing healthcare a certain amount of flexibility in meeting their commitments. For that purpose, Member States should be allowed, under certain conditions, to extend the statutory payment period up to a maximum of 60 calendar days. Member States should, nonetheless, make every effort to ensure that payments in the healthcare sector are made within the statutory payment periods.

               (26)

               In order not to jeopardise the achievement of the objective of this Directive, Member States should ensure that in commercial transactions the maximum duration of a procedure of acceptance or verification does not exceed, as a general rule, 30 calendar days. Nevertheless, it should be possible for a verification procedure to exceed 30 calendar days, for example in the case of particularly complex contracts, when expressly agreed in the contract and in any tender documents and if it is not grossly unfair to the creditor.

               (27)

               The Union institutions are in a situation comparable to that of the public authorities of Member States with regard to their financing and commercial relationships. Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (13) specifies that the validation, authorisation and payment of expenditure by Union institutions must be completed within the time limits laid down in its implementing rules. Those implementing rules are currently set out in Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (14), and specify the circumstances in which creditors which are paid late are entitled to receive default interest. In the context of the ongoing review of those Regulations, it should be ensured that the maximum time limits for payment by the Union institutions are aligned with statutory periods applicable to public authorities in accordance with this Directive.

               (28)

               This Directive should prohibit abuse of freedom of contract to the disadvantage of the creditor. As a result, where a term in a contract or a practice relating to the date or period for payment, the rate of interest for late payment or the compensation for recovery costs is not justified on the grounds of the terms granted to the debtor, or it mainly serves the purpose of procuring the debtor additional liquidity at the expense of the creditor, it may be regarded as constituting such an abuse. For that purpose, and in accordance with the academic ‘Draft Common Frame of Reference’, any contractual term or practice which grossly deviates from good commercial practice and is contrary to good faith and fair dealing should be regarded as unfair to the creditor. In particular, the outright exclusion of the right to charge interest should always be considered as grossly unfair, whereas the exclusion of the right to compensation for recovery costs should be presumed to be grossly unfair. This Directive should not affect national provisions relating to the way contracts are concluded or regulating the validity of contractual terms which are unfair to the debtor.

               (29)

               In the context of enhanced efforts to prevent the abuse of freedom of contract to the detriment of creditors, organisations officially recognised as representing undertakings and organisations with a legitimate interest in representing undertakings should be able to take action before national courts or administrative bodies in order to prevent the continued use of contract terms or practices which are grossly unfair to the creditor.

               (30)

               In order to contribute to the achievement of the objective of this Directive, Member States should foster the spread of good practices, including by encouraging the publication of a list of prompt payers.

               (31)

               It is desirable to ensure that creditors are in a position to exercise a retention of title clause on a non-discriminatory basis throughout the Union, if the retention of title clause is valid under the applicable national provisions designated by private international law.

               (32)

               This Directive only defines the term ‘enforceable title’ but should not regulate the various procedures for forced execution of such a title or the conditions under which forced execution of such a title can be stopped or suspended.

               (33)

               The consequences of late payment can be dissuasive only if they are accompanied by procedures for redress which are rapid and effective for the creditor. In accordance with the principle of non-discrimination set out in Article 18 of the Treaty on the Functioning of the European Union, those procedures should be available to all creditors who are established in the Union.

               (34)

               In order to facilitate compliance with the provisions of this Directive, Member States should encourage recourse to mediation or other means of alternative dispute resolution. Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (15) already sets a framework for systems of mediation at Union level, especially for cross-border disputes, without preventing its application to internal mediation systems. Member States should also encourage interested parties to draw up voluntary codes of conduct aimed, in particular, at contributing to the implementation of this Directive.

               (35)

               It is necessary to ensure that the recovery procedures for unchallenged claims related to late payment in commercial transactions be completed within a short period of time, including through an expedited procedure and irrespective of the amount of the debt.

               (36)

               Since the objective of this Directive, namely combating late payment in the internal market, cannot be sufficiently achieved by the Member States and can, therefore, by reason of its scale and effect, be better achieved at the Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

               (37)

               The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with Directive 2000/35/EC. The obligation to transpose the provisions which are unchanged arises under that Directive.

               (38)

               This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of Directive 2000/35/EC.

               (39)

               In accordance with point 34 of the Interinstitutional Agreement on better law-making (16), Member States are encouraged to draw up, for themselves and in the interest of the Union, their own tables which will, as far as possible, illustrate the correlation between this Directive and their transposition measures, and to make those tables public,

         HAVE ADOPTED THIS DIRECTIVE:
   Article 1
   Subject matter and scope
   1.   The aim of this Directive 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 SMEs.
   2.   This Directive shall apply to all payments made as remuneration for commercial transactions.
   3.   Member States may exclude debts that are subject to insolvency proceedings instituted against the debtor, including proceedings aimed at debt restructuring.
   Article 2
   Definitions
   For the purposes of this Directive, the following definitions shall apply:

               (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;

               (2)

               ‘public authority’ means any contracting authority, as defined in point (a) of Article 2(1) of Directive 2004/17/EC and in Article 1(9) of Directive 2004/18/EC, regardless of the subject or value of the contract;

               (3)

               ‘undertaking’ means any organisation, other than a public authority, acting in the course of its independent economic or professional activity, even where that activity is carried out by a single person;

               (4)

               ‘late payment’ means payment not made within the contractual or statutory period of payment and where the conditions laid down in Article 3(1) or Article 4(1) are satisfied;

               (5)

               ‘interest for late payment’ means statutory interest for late payment or interest at a rate agreed upon between undertakings, subject to Article 7;

               (6)

               ‘statutory interest for late payment’ means simple interest for late payment at a rate which is equal to the sum of the reference rate and at least eight percentage points;

               (7)

               ‘reference rate’ means either of the following:

                           (a)

                           for a Member State whose currency is the euro, either:

                                       (i)

                                       the interest rate applied by the European Central Bank to its most recent main refinancing operations; or

                                       (ii)

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

                           (b)

                           for a Member State whose currency is not the euro, the equivalent rate set by its national central bank;

               (8)

               ‘amount due’ means the principal sum which should have been paid within the contractual or statutory period of payment, including the applicable taxes, duties, levies or charges specified in the invoice or the equivalent request for payment;

               (9)

               ‘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;

               (10)

               ‘enforceable title’ means any decision, judgment or order for payment issued by a court or other competent authority, including those that are provisionally enforceable, whether for immediate payment or payment by instalments, which permits the creditor to have his claim against the debtor collected by means of forced execution.

         Article 3
   Transactions between undertakings
   1.   Member States shall ensure that, in commercial transactions between undertakings, the creditor is entitled to interest for late payment without the necessity of a reminder, where the following conditions are satisfied:

               (a)

               the creditor has fulfilled its contractual and legal obligations; and

               (b)

               the creditor has not received the amount due on time, unless the debtor is not responsible for the delay.

         2.   Member States shall ensure that the applicable reference rate:

               (a)

               for the first semester of the year concerned shall be the rate in force on 1 January of that year;

               (b)

               for the second semester of the year concerned shall be the rate in force on 1 July of that year.

         3.   Where the conditions set out in paragraph 1 are satisfied, Member States shall ensure the following:

               (a)

               that the creditor is entitled to interest for late payment from the day following the date or the end of the period for payment fixed in the contract;

               (b)

               where the date or period for payment is not fixed in the contract, that the creditor is entitled to interest for late payment upon the expiry of any of the following time limits:

                           (i)

                           30 calendar days following the date of receipt by the debtor of the invoice or an equivalent request for payment;

                           (ii)

                           where the date of the receipt of the invoice or the equivalent request for payment is uncertain, 30 calendar days after the date of receipt of the goods or services;

                           (iii)

                           where the debtor receives the invoice or the equivalent request for payment earlier than the goods or the services, 30 calendar days after the date of the receipt of the goods or services;

                           (iv)

                           where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or in the contract and if the debtor receives the invoice or the equivalent request for payment earlier or on the date on which such acceptance or verification takes place, 30 calendar days after that date.

         4.   Where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for, Member States shall ensure that the maximum duration of that procedure does not exceed 30 calendar days from the date of receipt of the goods or services, unless otherwise expressly agreed in the contract and provided it is not grossly unfair to the creditor within the meaning of Article 7.
   5.   Member States shall ensure that the period for payment fixed in the contract does not exceed 60 calendar days, unless otherwise expressly agreed in the contract and provided it is not grossly unfair to the creditor within the meaning of Article 7.
   Article 4
   Transactions between undertakings and public authorities
   1.   Member States shall ensure that, in commercial transactions where the debtor is a public authority, the creditor is entitled upon expiry of the period defined in paragraphs 3, 4 or 6 to statutory interest for late payment, without the necessity of a reminder, where the following conditions are satisfied:

               (a)

               the creditor has fulfilled its contractual and legal obligations; and

               (b)

               the creditor has not received the amount due on time, unless the debtor is not responsible for the delay.

         2.   Member States shall ensure that the applicable reference rate:

               (a)

               for the first semester of the year concerned shall be the rate in force on 1 January of that year;

               (b)

               for the second semester of the year concerned shall be the rate in force on 1 July of that year.

         3.   Member States shall ensure that in commercial transactions where the debtor is a public authority:

               (a)

               the period for payment does not exceed any of the following time limits:

                           (i)

                           30 calendar days following the date of receipt by the debtor of the invoice or an equivalent request for payment;

                           (ii)

                           where the date of receipt of the invoice or the equivalent request for payment is uncertain, 30 calendar days after the date of the receipt of the goods or services;

                           (iii)

                           where the debtor receives the invoice or the equivalent request for payment earlier than the goods or the services, 30 calendar days after the date of the receipt of the goods or services;

                           (iv)

                           where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or in the contract and if the debtor receives the invoice or the equivalent request for payment earlier or on the date on which such acceptance or verification takes place, 30 calendar days after that date;

               (b)

               the date of receipt of the invoice is not subject to a contractual agreement between debtor and creditor.

         4.   Member States may extend the time limits referred to in point (a) of paragraph 3 up to a maximum of 60 calendar days for:

               (a)

               any public authority which carries out economic activities of an industrial or commercial nature by offering goods or services on the market and which is subject, as a public undertaking, to the transparency requirements laid down in Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (17);

               (b)

               public entities providing healthcare which are duly recognised for that purpose.

         If a Member State decides to extend the time limits in accordance with this paragraph, it shall send a report on such extension to the Commission by 16 March 2018.
   On that basis, the Commission shall submit a report to the European Parliament and the Council indicating which Member States have extended the time limits in accordance with this paragraph and taking into account the impact on the functioning of the internal market, in particular on SMEs. That report shall be accompanied by any appropriate proposals.
   5.   Member States shall ensure that the maximum duration of a procedure of acceptance or verification referred to in point (iv) of point (a) of paragraph 3 does not exceed 30 calendar days from the date of receipt of the goods or services, unless otherwise expressly agreed in the contract and any tender documents and provided it is not grossly unfair to the creditor within the meaning of Article 7.
   6.   Member States shall ensure that the period for payment fixed in the contract does not exceed the time limits provided for in paragraph 3, unless otherwise expressly agreed in the contract and provided it is objectively justified in the light of the particular nature or features of the contract, and that it in any event does not exceed 60 calendar days.
   Article 5
   Payment schedules
   This Directive shall be without prejudice to the ability of parties to agree, subject to the relevant provisions of applicable national law, on payment schedules providing for instalments. In such cases, where any of the instalments is not paid by the agreed date, interest and compensation provided for in this Directive shall be calculated solely on the basis of overdue amounts.
   Article 6
   Compensation for recovery costs
   1.   Member States shall ensure that, where interest for late payment becomes payable in commercial transactions in accordance with Article 3 or 4, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40.
   2.   Member States shall ensure that the fixed sum referred to in paragraph 1 is payable without the necessity of a reminder and as compensation for the creditor’s own recovery costs.
   3.   The creditor shall, in addition to the fixed sum referred to in paragraph 1, be entitled to obtain reasonable compensation from the debtor for any recovery costs exceeding that fixed sum and incurred due to the debtor’s late payment. This could include expenses incurred, inter alia, in instructing a lawyer or employing a debt collection agency.
   Article 7
   Unfair contractual terms and practices
   1.   Member States shall provide that a contractual term or a practice relating to the date or period for payment, the rate of interest for late payment or the compensation for recovery costs is either unenforceable or gives rise to a claim for damages if it is grossly unfair to the creditor.
   In determining whether a contractual term or a practice is grossly unfair to the creditor, within the meaning of the first subparagraph, all circumstances of the case shall be considered, including:

               (a)

               any gross deviation from good commercial practice, contrary to good faith and fair dealing;

               (b)

               the nature of the product or the service; and

               (c)

               whether the debtor has any objective reason to deviate from the statutory rate of interest for late payment, from the payment period as referred to in Article 3(5), point (a) of Article 4(3), Article 4(4) and Article 4(6) or from the fixed sum as referred to in Article 6(1).

         2.   For the purpose of paragraph 1, a contractual term or a practice which excludes interest for late payment shall be considered as grossly unfair.
   3.   For the purpose of paragraph 1, a contractual term or a practice which excludes compensation for recovery costs as referred to in Article 6 shall be presumed to be grossly unfair.
   4.   Member States shall ensure that, in the interests of creditors and competitors, adequate and effective means exist to prevent the continued use of contractual terms and practices which are grossly unfair within the meaning of paragraph 1.
   5.   The means referred to in paragraph 4 shall include provisions whereby organisations officially recognised as representing undertakings, or organisations with a legitimate interest in representing undertakings may take action according to the applicable national law before the courts or before competent administrative bodies on the grounds that contractual terms or practices are grossly unfair within the meaning of paragraph 1, so that they can apply appropriate and effective means to prevent their continued use.
   Article 8
   Transparency and awareness raising
   1.   Member States shall ensure transparency regarding the rights and obligations stemming from this Directive, including by making publicly available the applicable rate of statutory interest for late payment.
   2.   The Commission shall make publicly available on the Internet details of the current statutory rates of interest which apply in all the Member States in the event of late payment in commercial transactions.
   3.   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.
   4.   Member States may encourage the establishment of prompt payment codes which set out clearly defined payment time limits and a proper process for dealing with any payments that are in dispute, or any other initiatives that tackle the crucial issue of late payment and contribute to developing a culture of prompt payment which supports the objective of this Directive.
   Article 9
   Retention of title
   1.   Member States shall provide in conformity with the applicable national provisions designated by private international law that the seller retains title to goods until they are fully paid for if a retention of title clause has been expressly agreed between the buyer and the seller before the delivery of the goods.
   2.   Member States may adopt or retain provisions dealing with down payments already made by the debtor.
   Article 10
   Recovery procedures for unchallenged claims
   1.   Member States shall ensure that an enforceable title can be obtained, including through an expedited procedure and irrespective of the amount of the debt, normally within 90 calendar days of the lodging of the creditor’s action or application at the court or other competent authority, provided that the debt or aspects of the procedure are not disputed. Member States shall carry out this duty in accordance with their respective national laws, regulations and administrative provisions.
   2.   National laws, regulations and administrative provisions shall apply the same conditions for all creditors who are established in the Union.
   3.   When calculating the period referred to in paragraph 1, the following shall not be taken into account:

               (a)

               periods for service of documents;

               (b)

               any delays caused by the creditor, such as periods devoted to correcting applications.

         4.   This Article shall be without prejudice to the provisions of Regulation (EC) No 1896/2006.
   Article 11
   Report
   By 16 March 2016, the Commission shall submit a report to the European Parliament and the Council on the implementation of this Directive. The report shall be accompanied by any appropriate proposals.
   Article 12
   Transposition
   1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 1 to 8 and 10 by 16 March 2013. They shall forthwith communicate to the Commission the text of those provisions.
   When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the repealed Directive shall be construed as references to this Directive. The methods of making such reference and the formulation of such statement shall be laid down by Member States.
   2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
   3.   Member States may maintain or bring into force provisions which are more favourable to the creditor than the provisions necessary to comply with this Directive.
   4.   In transposing the Directive, Member States shall decide whether to exclude contracts concluded before 16 March 2013.
   Article 13
   Repeal
   Directive 2000/35/EC is repealed with effect from 16 March 2013, without prejudice to the obligations of the Member States relating to the time limit for its transposition into national law and its application. However, it shall remain applicable to contracts concluded before that date to which this Directive does not apply pursuant to Article 12(4).
   References to the repealed Directive shall be construed as references to this Directive and be read in accordance with the correlation table set out in the Annex.
   Article 14
   Entry into force
   This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
   Article 15
   Addressees
   This Directive is addressed to the Member States.

      Done at Strasbourg, 16 February 2011.

            For the European Parliament

            The President

         J. BUZEK

            For the Council

            The President

         MARTONYI J.

      (1)  OJ C 255, 22.9.2010, p. 42.

      (2)  Position of the European Parliament of 20 October 2010 (not yet published in the Official Journal) and decision of the Council of 24 January 2011.

      (3)  OJ L 200, 8.8.2000, p. 35.

      (4)  OJ L 12, 16.1.2001, p. 1.

      (5)  OJ L 143, 30.4.2004, p. 15.

      (6)  OJ L 399, 30.12.2006, p. 1.

      (7)  OJ L 199, 31.7.2007, p. 1.

      (8)  OJ L 124, 20.5.2003, p. 36.

      (9)  OJ L 134, 30.4.2004, p. 1.

      (10)  OJ L 134, 30.4.2004, p. 114.

      (11)  OJ L 124, 8.6.1971, p. 1.

      (12)  OJ L 347, 11.12.2006, p. 1.

      (13)  OJ L 248, 16.9.2002, p. 1.

      (14)  OJ L 357, 31.12.2002, p. 1.

      (15)  OJ L 136, 24.5.2008, p. 3.

      (16)  OJ C 321, 31.12.2003, p. 1.

      (17)  OJ L 318, 17.11.2006, p. 17.

      ANNEX

         Correlation table

                  Directive 2000/35/EC

                  This Directive

                  —

                  Article 1(1)

                  Article 1

                  Article 1(2)

                  Article 2(1), first subparagraph

                  Article 2(1)

                  Article 2(1), second subparagraph

                  Article 2(2)

                  Article 2(1), third subparagraph

                  Article 2(3)

                  Article 2(2)

                  Article 2(4)

                  —

                  Article 2(5)

                  —

                  Article 2(6)

                  —

                  Article 2(7), introductory part

                  —

                  Article 2(8)

                  Article 2(3)

                  Article 2(9)

                  Article 2(4)

                  Article 2(7)(a)

                  Article 2(5)

                  Article 2(10)

                  Article 3(1)(a)

                  Article 3(3)(a)

                  Article 3(1)(b), introductory part

                  Article 3(3)(b), introductory part

                  Article 3(1)(b)(i)

                  Article 3(3)(b)(i)

                  Article 3(1)(b)(ii)

                  Article 3(3)(b)(ii)

                  Article 3(1)(b)(iii)

                  Article 3(3)(b)(iii)

                  Article 3(1)(b)(iv)

                  Article 3(3)(b)(iv)

                  —

                  Article 3(4)

                  —

                  Article 3(5)

                  Article 3(1)(c)

                  Article 3(1)

                  Article 3(1)(d), first and third sentences

                  —

                  Article 3(1)(d), second sentence

                  Article 2(7)(b)

                  —

                  Article 3(2)

                  —

                  Article 4

                  —

                  Article 5

                  —

                  Article 6(1)

                  —

                  Article 6(2)

                  Article 3(1)(e)

                  Article 6(3)

                  Article 3(2)

                  —

                  Article 3(3)

                  Article 7(1)

                  —

                  Article 7(2)

                  —

                  Article 7(3)

                  Article 3(4)

                  Article 7(4)

                  Article 3(5)

                  Article 7(5)

                  —

                  Article 8

                  Article 4

                  Article 9

                  Article 5(1), (2) and (3)

                  Article 10(1), (2) and (3)

                  Article 5(4)

                  —

                  —

                  Article 10(4)

                  —

                  Article 11

                  Article 6(1)

                  —

                  —

                  Article 12(1)

                  Article 6(2)

                  Article 12(3)

                  Article 6(3)

                  Article 1(3)

                  Article 6(4)

                  Article 12(2)

                  Article 6(5)

                  —

                  —

                  Article 12(4)

                  —

                  Article 13

                  Article 7

                  Article 14

                  Article 8

                  Article 15

                  —

                  Annex


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32004L0002

Commission Directive 2004/2/EC of 9 January 2004 amending Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC as regards maximum residue levels for fenamiphos (Text with EEA relevance)

Official Journal L 014 , 21/01/2004 P. 0010 - 0018

Commission Directive 2004/2/ECof 9 January 2004amending Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC as regards maximum residue levels for fenamiphos(Text with EEA relevance)THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Directive 86/362/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on cereals(1), as last amended by Commission Directive 2003/62/EC(2), and in particular Article 10 thereof,Having regard to Council Directive 86/363/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on foodstuffs of animal origin(3), as last amended by Commission Directive 2003/60/EC(4), and in particular Article 10 thereof,Having regard to Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on products of plant origin, including fruit and vegetables(5), as last amended by Commission Directive 2003/69/EC(6), and in particular Article 7 thereof,Whereas:(1) In the case of cereals and products of plant origin including fruit and vegetables, residue levels reflect the use of minimum quantities of pesticides necessary to achieve effective protection of plants, applied in such a manner that the amount of residue is as low as is practicable and toxicologically acceptable, having regard, in particular to the protection of the environment and the estimated dietary intake of consumers. In the case of foodstuffs of animal origin, residue levels reflect the consumption by animals of cereals and products of plant origin treated with pesticides, and where relevant, the direct consequences of the use of veterinary medicines. Community maximum residue levels (MRLs) represent the upper limit of the amount of such residues that might be expected to be found in commodities when good agricultural practices have been respected.(2) MRLs for pesticides are kept under review and changed to take account of new information and data. MRLs are fixed at the lower limit of analytical determination where authorised uses of plant protection products do not result in detectable levels of pesticide residue in or on the food product, or where there are no authorised uses, or where uses which have been authorised by Member States have not been supported by the necessary data, or where uses in third countries resulting in residues in or on food products which may enter into circulation in the Community market have not been supported by the necessary data.(3) In the case of fenamiphos, a Member State informed the Commission of its desire to revise national MRLs in accordance with Article 8 of Directive 90/642/EEC, in the light of concerns about consumer intake. A proposal for the review of Community MRLs was submitted to the Commission.(4) The lifetime and short term exposure of consumers to fenamiphos referred to in this Directive via food products has been reassessed and evaluated in accordance with Community procedures and practices, taking account of guidelines published by the World Health Organisation(7). It is calculated that the MRLs fixed in this Directive will not lead to unacceptable consumer exposure.(5) Where relevant, the acute exposure of consumers to those pesticides via each of the food products that may contain residues has been assessed and evaluated in accordance with Community procedures and practices, taking account of guidelines published by the World Health Organisation. It is concluded that the presence of pesticide residues at or below the MRLs proposed in this Directive will not cause acute toxic effects.(6) Through the World Trade Organisation, the Community's trading partners have been consulted about the MRLs proposed in this Directive and their comments on these levels have been taken into account.(7) The opinions of the Scientific Committee for Plants have been taken into account, in particular its advice and recommendations concerning the methodology to be followed for the protection of consumers of agricultural products treated with pesticides.(8) The Annexes to Directives 86/362/EEC, 86/363/EEC and 90/642/EEC should therefore be amended accordingly.(9) The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,HAS ADOPTED THIS DIRECTIVE:Article 1In part A of Annex II to Directive 86/362/EEC the following rows are added:">TABLE>"Article 2In part B of Annex II to Directive 86/363/EEC the following row is added:">TABLE>"Article 3Annex II to Directive 90/642/EEC is amended as follows:"The MRLs for fenamiphos in the Annex to this directive are added to the MRLs in Annex II to Directive 90/642/EEC."Article 4Member States shall adopt and publish the provisions necessary to comply with this Directive by 31 July 2004 at the latest. They shall forthwith inform the Commission thereof.They shall apply those provisions from 1 August 2004.When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.Article 5This Directive shall enter into force on the seventh day following that of its publication in the Official Journal of the European Union.Article 6This Directive is addressed to the Member States.Done at Brussels, 9 January 2004.For the CommissionDavid ByrneMember of the Commission(1) OJ L 221, 7.8.1986, p. 37.(2) OJ L 154, 21.6.2003, p. 70.(3) OJ L 221, 7.8.1986, p. 43.(4) OJ L 155, 24.6.2003, p. 15.(5) OJ L 350, 14.12.1990, p. 71.(6) OJ L 175, 15.7.2003, p. 37.(7) Guidelines for predicting dietary intake of pesticide residues (revised), prepared by the GEMS/Food Programme in collaboration with the Codex Committee on Pesticide Residues, published by the World Health Organisation 1997 (WHO/FSF/FOS/97.7).ANNEX">TABLE>"


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31977L0794

Commission Directive 77/794/EEC of 4 November 1977 laying down detailed rules for implementing certain provisions of Directive 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties

Official Journal L 333 , 24/12/1977 P. 0011 - 0019 Finnish special edition: Chapter 2 Volume 2 P. 0098  Greek special edition: Chapter 02 Volume 4 P. 0237  Swedish special edition: Chapter 2 Volume 2 P. 0098  Spanish special edition: Chapter 02 Volume 4 P. 0189  Portuguese special edition Chapter 02 Volume 4 P. 0189

COMMISSION DIRECTIVE  of 4 November 1977  laying down detailed rules for implementing certain provisions of Directive 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties  (77/794/EEC)  THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties (1), and in particular Article 22 (1) thereof,  Whereas the abovementioned Directive introduced a system of mutual assistance between the competent authorities of Member States for the purpose of supplying the applicant authority with all the information which it needs, for notifying the addressee concerned of instruments and decisions which are applicable, for the taking of precautionary measures, and for the recovery by the requested authority of claims on behalf of the applicant authority;  Whereas the detailed rules of operation of such mutual assistance must be laid down in each of these fields in order to render it fully effective;  Whereas the measures provided for in this Directive are in accordance with the opinion of the Committee on Recovery,  HAS ADOPTED THIS DIRECTIVE:    Article 1 1. This Directive lays the detailed rules for implementing Articles 4 (2) and (4), 5 (2) and (3), 7 (1), (3) and (5), 9 and 12 (1) of Directive 76/308/EEC, hereinafter called "the basic Directive".  2. This Directive also lays down the detailed rules on conversion, transfer of sums recovered and the fixing of a minimum amount for claims which may give rise to a request for assistance.   TITLE I Request for information  Article 2 1. The request for information referred to in Article 4 of the basic Directive shall be made out in  (1)OJ No L 73, 19.3.1976, p. 18.   writing in accordance with the model in Annex I. The said request shall bear the official stamp of the applicant authority and shall be signed by an official thereof duly authorized to make such a request.  2. The applicant authority shall, where appropriate, indicate in its request for information the name of any other requested authority to which a similar request for information has been addressed.   Article 3 The request for information may relate to     (a) the debtor ; or       (b) any person liable for settlement of the claim under the law in force in the Member State where the applicant authority is situated.  Where the applicant authority knows that a third party holds assets belonging to one of the persons mentioned in the foregoing paragraph, the request may also relate to that third party.         Article 4 The requested authority shall acknowledge receipt of the request for information in writing (if possible by telex) as soon as possible and in any event within seven days of such receipt.   Article 5 1. The requested authority shall transmit each item of requested information to the applicant authority as and when it is obtained.  2. Where all or part of the requested information cannot be obtained within a reasonable time, having regard to the particular case, the requested authority shall so inform the applicant authority, indicating the reasons therefor.  In any event, at the end of six months from the date of acknowledgement of receipt of the request, the requested authority shall inform the applicant authority of the outcome of the investigations which it has conducted in order to obtain the information requested.  In the light of the information received from the requested authority, the applicant authority may request the latter to continue its investigations. This request shall be made in writing (if possible by telex) within two months from the receipt of the notification of the outcome of the investigations carried out by the requested authority, and shall be treated by the requested authority in accordance with the provisions applying to the initial request.   Article 6 When the requested authority decides not to comply with the request for information addressed to it, it shall notify the applicant authority in writing of the reasons for the refusal to comply with the request, specifying the particular provisions of Article 4 of the basic Directive which it invokes. This notification shall be given by the requested authority as soon as it has taken its decision and in any event within six months from the date of the acknowledgement of the receipt of the request.   Article 7 The applicant authority may at any time withdraw the request for information which it has sent to the requested authority. The decision to withdraw shall be transmitted to the requested authority in writing (if possible by telex).   TITLE II Request for notification  Article 8 The request for notification referred to in Article 5 of the basic Directive shall be made out in writing in duplicate in accordance with the model in Annex II. The said request shall bear the official stamp of the applicant authority and shall be signed by an official thereof duly authorized to make such a request.  Two copies of the instrument (or decision), notification of which is requested, shall be attached to the request referred to in the foregoing paragraph.   Article 9 The request for notification may relate to any natural or legal person who, in accordance with the law in force in the Member State where the applicant authority is situated, shall be informed of any instrument or decision which concerns him.   Article 10 1. Immediately upon receipt of the request for notification, the requested authority shall take the necessary measures to effect that notification in accordance with the law in force in the Member State in which it is situated.   2. The requested authority shall inform the applicant authority of the date of notification as soon as this has been done, by returning to it one of the copies of its request with the certificate on the reverse side duly completed.   TITLE III Request for recovery and/or for the taking of precautionary measures  Article 11 1. The request for recovery and/or for the taking of precautionary measures referred to in Articles 6 and 13 of the basic Directive shall be made out in writing in accordance with the model Annex III. The request, which shall include a declaration that the conditions laid down in the basic Directive for initiating the mutual assistance procedure in the particular case have been fulfilled, shall bear the official stamp of the applicant authority and shall be signed by an official thereof duly authorized to make such a request.  2. The instrument permitting enforcement which shall accompany the request for recovery and/or for the taking of precautionary measures may be issued in respect of several claims where it concerns one and the same person.  For the purposes of Articles 12 to 19, all claims which are covered by the same instrument permitting enforcement shall be deemed to constitute a single claim.   Article 12 1. The request for recovery and/or for the taking of precautionary measures may relate to    (a) the debtor ; or       (b) any person liable for settlement of the claim under the law in force in the Member State in which it is situated.         2. Where appropriate, the applicant authority shall inform the requested authority of any assets of the persons referred to in paragraph 1 which to its knowledge are held by a third party.   Article 13 1. The applicant authority shall state the amounts of the claim to be recovered both in the currency of the Member State in which it is situated and also in the currency of the Member State in which the requested authority is situated.  2. The rate of exchange to be used for the purposes of paragraph 1 shall be the latest selling rate recorded on the most representative exchange market or markets of the Member State in which the applicant authority is situated on the date when the request for recovery is signed.   Article 14 The requested authority shall acknowledge receipt of the request for recovery and/or for the taking of precautionary measures in writing (if possible by telex) as soon as possible and in any event within seven days of its receipt.   Article 15 Where, within a reasonable time having regard to the particular case, all or part of the claim cannot be recovered or precautionary measures cannot be taken, the requested authority shall so inform the applicant authority, indicating the reasons therefor.  In any event, at the end of one year from the date of acknowledgement of the receipt of the request, the requested authority shall inform the applicant authority of the outcome of the procedure which it has undertaken for recovery and/or for the taking of precautionary measures.  In the light of the information received from the requested authority, the applicant authority may request the latter to continue the procedure which it has undertaken for recovery and/or for the taking of precautionary measures. This request shall be made in writing (if possible by telex) within two months from the receipt of the notification of the outcome of the procedure undertaken by the requested authority for recovery and/or for the taking of precautionary measures, and shall be treated by the requested authority in accordance with the provisions applying to the initial request.   Article 16 Any action contesting the claim or the instrument permitting its enforcement which is taken in the Member State in which the applicant authority is situated shall be notified to the requested authority in writing (if possible by telex) by the applicant authority immediately after it has been informed of such action.   Article 17 1. If the request for recovery and/or for the taking of precautionary measures becomes nugatory as a result of payment of the claim or of its cancellation or for any other reason, the applicant authority shall immediately inform the requested authority in  writing (if possible by telex) so that the latter may stop any action which it has undertaken.  2. Where the amount of the claim which is the subject of the request for recovery and/or for the taking of precautionary measures is amended for any reason, the applicant authority shall immediately inform the requested authority in writing (if possible by telex).  If the amendment consists of a reduction in the amount of the claim, the requested authority shall continue the action which it has undertaken with a view to recovery and/or to the taking of precautionary measures, but that action shall be limited to the amount still outstanding if, at the time the requested authority is informed of the reduction of the amount of the claim, the original amount has already been recovered by it but the transfer procedure referred to in Article 18 has not yet been initiated, the requested authority shall repay the amount overpaid to the person entitled thereto.  If the amendment consists of an increase in the amount of the claim, the applicant authority shall as soon as possible address to the requested authority an additional request for recovery and/or for the taking of precautionary measures. This additional request shall, as far as possible be dealt with by the requested authority at the same time as the original request of the applicant authority. Where, in view of the state of progress of the existing procedure, the joinder of the additional request and the original request is not possible, the requested authority shall only be required to comply with the additional request if it concerns an amount not less than that referred to in Article 20.  3. To convert the amended amount of the claim into the currency of the Member State in which the requested authority is situated, the applicant authority shall use the exchange rate used in its original request.   Article 18 Any sum recovered by the requested authority, including, where applicable, the interest referred to in Article 9 (2) of the basic Directive, shall be the subject of a transfer to the applicant authority in the currency of the Member State in which the requested authority is situated. This transfer shall take place within one month of the date on which the recovery was effected.   Article 19 Irrespective of any amounts collected by the requested authority by way of interest referred to in Article 9 (2) of the basic Directive, the claim shall be deemed to have been recovered in proportion to the recovery of the amount expressed in the national currency of the Member State in which the requested authority is situated, on the basis of the exchange rate referred to in Article 13 (2).   TITLE IV General and final provisions  Article 20 1. A request for assistance may be made by the applicant authority in respect of either a single claim or several claims where these are recoverable from one and the same person.  2. No request for assistance may be made if the amount of the relevant claim or claims is less than 750 European units of account.   Article 21 Information and other particulars communicated by the requested authority to the applicant authority shall be made out in the official language or one of the official languages of the Member State in which the requested authority is situated.   Article 22 The Member States shall bring into force not later than 1 January 1978 the measures necessary to comply with this Directive.   Article 23 Each Member State shall inform the Commission of the measures which it takes for implementing this Directive. The Commission shall communicate such information to the other Member States.   Article 24 This Directive is addressed to the Member States.     Done at Brussels, 4 November 1977.  For the Commission  Étienne DAVIGNON  Member of the Commission     ANNEX I >PIC FILE= "T0011191">    ANNEX II >PIC FILE= "T0011192">   >PIC FILE= "T0011334">    ANNEX III >PIC FILE= "T0011193">


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31976L0895

Council Directive 76/895/EEC of 23 November 1976 relating to the fixing of maximum levels for pesticide residues in and on fruit and vegetables

Official Journal L 340 , 09/12/1976 P. 0026 - 0031 Finnish special edition: Chapter 3 Volume 7 P. 0206  Greek special edition: Chapter 03 Volume 16 P. 0179  Swedish special edition: Chapter 3 Volume 7 P. 0206  Spanish special edition: Chapter 03 Volume 11 P. 0084  Portuguese special edition Chapter 03 Volume 11 P. 0084

COUNCIL DIRECTIVE of 23 November 1976 relating to the fixing of maximum levels for pesticide residues in and on fruit and vegetables (76/895/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43 and 100 thereof,  Having regard to the proposal from the Commission,  Having regard to the opinion of the European Parliament (1),  Having regard to the opinion of the Economic and Social Committee (2),  Whereas crop production plays an important role in the European Economic Community;  Whereas the yield from that production is continually affected by harmful organisms of either animal or vegetable origin and also by viruses;  Whereas it is absolutely essential to protect plants against these organisms, not only to prevent a reduction in yield but also to increase agricultural productivity;  Whereas one of the most important methods of protecting plants and plant products from the effect of these harmful organisms is by the use of chemical pesticides;  Whereas, however, these pesticides do not have only a favourable effect on plant production, since they are generally toxic substances or preparations with dangerous side effects;  Whereas a large number of these pesticides and of their metabolized or breakdown products may have harmful effects on consumers of plant products;  Whereas these pesticides should not be used in circumstances which could present a risk to human or animal life;  Whereas different methods exist in certain Member States for avoiding this risk ; whereas some of these States have fixed different levels for the maximum content of the residues of certain pesticides in or on treated plants and plant products which must be observed when these products are put into circulation;  Whereas the differences which exist between Member States for the maximum permissible levels for pesticide residues can help to create barriers to trade and thus hinder the free movement of goods within the Community ; whereas for this reason certain maximum levels should be fixed which may be applied by the Member States;  Whereas in fixing these maximum levels the requirements of plant production and the need to protect human and animal health must be reconciled;  Whereas, initially, maximum levels should be fixed for the residues of certain pesticides in and on fruit and vegetables taking into account the fact that fruit and vegetables are generally intended for human consumption and, on occasions, for animal feed ; whereas these maximum levels must represent the lowest possible levels;  Whereas the free circulation throughout the Community of products with a level of residue of certain pesticides less than or equal to the maxima fixed in Annex II should be assured ; whereas at the same time Member States should be allowed to permit the circulation in their territory, without discrimination and in cases where they consider this justified, of products which have a content higher than the said maxima either by fixing or by refraining from fixing maximum levels for them;  Whereas it is not necessary to apply the provisions of this Directive to fruit and vegetables intended for export to third countries;  Whereas, nevertheless, the maximum levels fixed in Annex II could unexpectedly prove dangerous to human or animal health ; whereas Member States should therefore be allowed in that case to reduce temporarily these levels;  Whereas it is appropriate in that case to establish close cooperation between the Member States and the Commission within a Standing Committee on Plant Protection;   (1) OJ No C 97, 28.7.1969, p. 35.  (2) OJ No C 40, 25.3.1969, p. 4.   Whereas, where Member States fix maximum content levels for products marketed on their territory they should make certain that these levels are observed by means of official checks, consisting, at least, of sampling;  Whereas, in that case, the official checks should be made by using Community methods of sample-taking and Community methods of analysis;  Whereas the fixing of methods of sampling and analysis is a technical and scientific implementing measure ; whereas in order to facilitate the adoption thereof, the rules relating to those samples and analyses should be laid down by means of a procedure establishing close cooperation between the Member States and the Commission within the Standing Committee on Plant Protection;  Whereas any amendment to the Annexes should, in view of their basically technical nature, be made easier by an accelerated procedure,  HAS ADOPTED THIS DIRECTIVE:    Article 1 This Directive concerns products intended for human or, in exceptional cases, animal consumption listed under the Common Customs Tariff headings set out in Annex I and in or on which are found the pesticide residues listed in Annex II.   Article 2 1. For the purposes of this Directive "pesticide residues" means the residual traces of pesticides, as well as any of the toxic breakdown or metabolized products listed in Annex II, which are present in or on the products referred to in Article 1.  2. For the purposes of this Directive "putting into circulation" means any handing over, whether in return for payment or free of charge, of the products referred to in Article 1, after they have been harvested.   Article 3 1. Member States may not prohibit or impede the putting on the market within their territories of the products referred to in Article 1 on the ground that they contain pesticide residues if the quantity of these residues does not exceed the maximum levels laid down in Annex II.  2. Member States may, in cases where they consider this justified, authorize the circulation within their territories of products referred to in Article 1 which contain pesticide residues higher than those laid down in Annex II.  3. Member States shall inform the other Member States and the Commission of any implementation of paragraphs 1 and 2.   Article 4 1. Where a Member State considers that a maximum level fixed in Annex II might endanger the health of humans or of animals other than harmful organisms, that Member State may temporarily reduce that level in its own territory. In that case it shall immediately notify the other Member States and the Commission of the measures taken with a statement of the reasons therefor.  2. In accordance with the products laid down in Article 8, it shall be decided whether the maximum levels laid down in Annex II are to be amended. Until such time as a decision is taken by the Council or the Commission in accordance with the abovementioned procedure, the Member State may maintain the measures which it has implemented.   Article 5 Without prejudice to Article 4, the Council, acting on a proposal from the Commission, shall adopt amendments to be made to the Annexes. In making such amendments account shall be taken of technical and scientific progress as well as of the requirements of health and agriculture.   Article 6 1. Member States shall take all necessary measures to ensure compliance with any maximum levels laid down in accordance with this Directive by carrying out random checks.  2. Member States shall take all necessary measures to ensure that, where the products referred to in Article 1 are subject to the verification provided for in paragraph 1, the sampling and qualitative and quantitative analysis carried out for the purposes of identifying and estimating the amounts of pesticide residues shall be carried out according to the processes and methods to be laid down in accordance with the procedure provided for in Article 7.   Article 7 1. Where the procedure laid down in this Article is to be followed, the matters shall be referred without delay to the Standing Committee on Plant Health set up by Decision 76/894/EEC (1) (hereinafter called "the Committee") by its chairman, either on his own initiative or at the request of a Member State.   (1) See page 25 of this Official Journal.  2. Within the Committee, the votes of the Member States shall be weighted as provided for in Article 148 (2) of the Treaty. The chairman shall not vote.  3. The representative of the Commission shall submit a draft of the measures to be taken. The Committee shall deliver its opinion on these measures within a time limit set by the chairman having regard to the urgency of the matters to be examined. Opinions shall be delivered by a majority of 41 votes.  4. Where the measures are in accordance with the opinion of the Committee, the Commission shall adopt them and shall implement them forthwith. Where the measures are not in accordance with the opinion of the Committee or if no opinion is delivered, the Commission shall immediately submit to the Council a proposal on the measures to be taken. The Council shall adopt the measures by a qualified majority.  If, within three months following the date on which the matter was referred to it, the Council has not adopted the measures, the Commission shall adopt the proposed measures and shall implement them immediately, except where the Council has rejected the said measures by a simple majority.   Article 8 1. Where the procedure laid down in this Article is to be followed, the matter shall be referred without delay to the Committee by its chairman, either on his own initiative or at the request of a Member State.  2. Within the Committee, the votes of the Member States shall be weighted as provided for in Article 148 (2) of the Treaty. The chairman shall not vote.  3. The representative of the Commission shall submit a draft of the measures to be taken. The Committee shall deliver its opinion on these measures within two days. Opinions shall be delivered by a majority of 41 votes.  4. Where the measures are in accordance with the opinion of the Committee, the Commission shall adopt them and shall implement them forthwith. Where they are not in accordance with the opinion of the Committee or if no opinion is delivered, the Commission shall immediately submit to the Council a proposal on the measures to be taken. The Council shall adopt the measures by a qualified majority.  If, within 15 days of the date on which the matter was referred to it, the Council has not acted, the Commission shall adopt the proposed measures and shall implement them immediately, except where the Council has rejected the said measures by a simple majority.   Article 9 This Directive shall not apply to the products referred to in Article 1 where at least one appropriate element of proof can be brought that they are intended for export to third countries.   Article 10 This Directive shall apply without prejudice to Community provisions concerning common quality standards for fruit and vegetables.   Article 11 Member States shall bring into force the laws, regulations and administrative provisions needed to comply with this Directive within a period of two years following its notification and shall forthwith inform the Commission thereof.   Article 12 This Directive is addressed to the Member States.     Done at Brussels, 23 November 1976.  For the Council  The President  A.P.L.M.M. van der STEE  ANNEX I  List of products referred to in Article 1 >PIC FILE= "T0015869">     ANNEX II List of pesticide residues and maximum residual levels >PIC FILE= "T0015870">    >PIC FILE= "T0015871">


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32002L0023

Commission Directive 2002/23/EC of 26 February 2002 amending the Annexes to Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC as regards the fixing of maximum levels for pesticide residues in and on cereals, foodstuffs of animal origin and certain products of plant origin, including fruit and vegetables respectively

Official Journal L 064 , 07/03/2002 P. 0013 - 0019

Commission Directive 2002/23/ECof 26 February 2002amending the Annexes to Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC as regards the fixing of maximum levels for pesticide residues in and on cereals, foodstuffs of animal origin and certain products of plant origin, including fruit and vegetables respectivelyTHE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Directive 86/362/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on cereals(1), as last amended by Commission Directive 2001/57/EC(2), and in particular Article 10 thereof,Having regard to Council Directive 86/363/EEC of 24 July 1986 on the fixing of maximum levels for pesticide residues in and on foodstuffs of animal origin(3), as last amended by Directive 2001/57/EC, and in particular Article 10 thereof,Having regard to Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables(4), as last amended by Commission Directive 2002/5/EC(5), and in particular Article 7 thereof,Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market(6), as last amended by Commission Directive 2001/103/EC(7), and in particular Article 4(1)(f) thereof,Whereas:(1) The new active substances flupyrsulfuron-methyl, pymetrozine, azoxystrobin and kresoxim-methyl (the active substances concerned) were included in Annex I to Directive 91/414/EEC by Commission Directives 2001/49/EC(8), 2001/87/EC(9), 98/47/EC(10) and 1999/1/EC(11), for use, respectively as a herbicide on cereals, insecticide on cereals, fruits, vegetables, pulses, oil seeds and hops, a fungicide without uses specified and a fungicide on cereals, pome fruit and vines.(2) The inclusion in Annex I of the active substances concerned was based on the assessment of the information submitted concerning the proposed uses. Information relating to these uses has been submitted by certain Member States in accordance with Article 4(1)(f) of Directive 91/414/EEC. The information available has been reviewed and is sufficient to allow certain maximum residue levels (MRLs) to be fixed.(3) Where no Community MRL or provisional MRL exists, Member States are to establish a national provisional MRL in accordance with Article 4(1)(f) of Directive 91/414/EEC before plant protection products containing these active substances may be authorised.(4) With respect to the inclusion in Annex I to Directive 91/414/EEC of the active substances concerned, the related technical and scientific evaluations were finalised in the form of Commission review reports. The reports were finalised on 16 October 1998, 27 April 2001, 22 April 1998, 27 July 2001 in the case of kresoxim-methyl, flupyrsulfuron-methyl, azoxystrobin and pymetrozine, respectively. They fixed the acceptable daily intake (ADI) for kresoxim-methyl at 0,4 mg/kg bw/day, for flupyrsulfuron-methyl at 0,035 mg/kg bw/day, for azoxystrobin at 0,1 mg/kg bw/day and for pymetrozine at 0,03 mg/kg bw/day. The lifetime exposure of consumers of food products treated with the active substances concerned has been assessed and evaluated in accordance with Community procedures and practices, taking account of guidelines published by the World Health Organisation(12) and the opinion of the Scientific Committee for Plants(13) on the methodology employed and it is calculated that MRL accordingly proposed will not lead to those ADIs being exceeded.(5) No acute toxic effects requiring the setting of an acute reference dose were noted during the evaluations and discussions preceding the inclusion of flupyrsulfuron-methyl, azoxystrobin and kresoxim-methyl in Annex I to Directive 91/414/EEC. The acute reference dose for pymetrozine was established at 0,1 mg/kg bw/day. According to the exposure assessment, the MRLs proposed will not lead to an unacceptable acute exposure of consumers.(6) In order to ensure that the consumer is adequately protected from exposure to residues in or on products for which no authorisation has been granted, it is prudent to set provisional MRL at the lower limit of analytical determination for all such products covered by Directives 86/362/EEC, 86/363/EEC and 90/642/EEC. The setting at Community level of such provisional MRL does not prevent the Member States from establishing provisional maximum residue levels for flupyrsulfuron-methyl, pymetrozine, azoxystrobin and kresoxim-methyl in accordance with Article 4(1)(f) of Directive 91/414/EEC and Annex VI thereto. It is considered that a period of four years is sufficient to enable most further uses of the active substances concerned. The provisional MRL should then become definitive.(7) The Community notified the draft Commission Directive to the World Trade Organisation and the comments received have been considered in finalising the Directive. MRLs for specific pesticide/crop combinations used in third countries could be examined by the Commission on the basis of the acceptable data submitted.(8) Account has been taken of the opinions of the Scientific Committee for Plants, in particular of its advice and recommendations concerning the protection of consumers of food products treated with pesticides.(9) This Directive is in accordance with the opinion of the Standing Committee on Plant Health,HAS ADOPTED THIS DIRECTIVE:Article 1The following pesticide maximum residue levels are added to part A of Annex II to Directive 86/362/EEC:>TABLE>By 1 December 2005, provisional maximum residue levels for flupyrsulfuron-methyl and pymetrozine shall cease to be provisional and shall become definitive in the sense of Article 4(1) of Directive 86/362/EEC.Article 2The following pesticide residues are added to part B of Annex II to Directive 86/363/EEC:>TABLE>By 1 December 2005, provisional maximum residue levels for pymetrozine shall cease to be provisional and shall become definitive in the sense of Article 4(1) of Directive 86/363/EEC.Article 3The maximum pesticide residue levels for flupyrsulfuron-methyl and pymetrozine in the Annex to this Directive shall be added to Annex II to Directive 90/642/EEC. The maximum pesticide residue levels for azoxystrobin in the Annex to this Directive shall replace those in Annex II to Directive 90/642/EEC.Article 4The provisional maximum pesticide residue levels for kresoxim-methyl in Annex II to Directive 90/642/EEC shall be modified to 0,2 mg/kg (p) for strawberries. (p) indicates provisional maximum residue level.For kresoxim-methyl provisional MRLs shall become definitive with effect of 19 October 2004.Article 51. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 August 2002 at the latest. They shall forthwith inform the Commission thereof.2. They shall apply these provisions as of 1 September 2002.3. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.Article 6This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.This Directive is addressed to the Member States.Done at Brussels, 26 February 2002.For the CommissionDavid ByrneMember of the Commission(1) OJ L 221, 7.8.1986, p. 37.(2) OJ L 208, 1.8.2001, p. 36.(3) OJ L 221, 7.8.1986, p. 43.(4) OJ L 350, 14.12.1990, p. 71.(5) OJ L 34, 5.2.2002, p. 7.(6) OJ L 230, 19.8.1991, p. 1.(7) OJ L 304, 21.11.2001, p. 14.(8) OJ L 176, 29.6.2001, p. 61.(9) OJ L 276, 19.10.2001, p. 17.(10) OJ L 191, 7.7.1998, p. 50.(11) OJ L 21, 28.1.1999, p. 21.(12) Guidelines for predicting dietary intake of pesticide residues (revised), prepared by the GEMS/Food Programme in collaboration with the Codex Committee on Pesticide Residues, published by the World Health Organisation 1997 (WHO/FSF/FOS/97.7).(13) Opinion of the Scientific Committee on Plants regarding questions relating to amending the Annexes to Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC (Opinion expressed by the Scientific Committee on Plants, 14 July 1998) (http://europa.eu.int/comm/dg24/health/sc/scp/out21_en.html).ANNEX>TABLE>