The Late Payment Directive as implemented in Italy: recent cases and possible developments

1. The Late Payment Directive as implemented in Italy: recent cases and possible developments Antonio Debiasi Rucellai & Raffaelli Milan - Italy RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

2. The Legislative Decree n. 231/2002 Directive 2000/35/CE has been implemented in Italy through: Legislative Decree n. 231 of October 9th, 2002 Art. 1: exclusions [6.3 Directive] Art. 2: definitions [2 Directive] Art. 3: responsibility of the debtor [3.1.c Directive] Art. 4: payment of interest [3.1.a-d, 3.2 Directive] Art. 5: interest rate [3.1.d Directive] Art. 6: recovery of costs [3.1.e Directive] Art. 7: grossly unfair agreements [3.3-3.4 Directive] Art. 8: safeguard of collective interests [3.5 Directive] Art. 9: amendments to the code of civil procedure [5 Directive] Art. 10: sub - supply agreements [3.1.d-e Directive] Art. 11: retention of title [4 Directive] RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

3. Article 4: Payment of interest Principles established with respect to the payment of interest Interest run automatically the day following the expiration of the term of payment; No need for a reminder; the “legal” term for payment is established in article 4, unless a different term is agreed in the contract; the terms for payment mirror the provision of Directive 35/2000: 30 days from receipt of invoice/request, or 30 days from receipt of goods/services, if date of invoice/request is not certain or invoice/request is received before the goods/services, or 30 days from acceptance/verification – if provided – of goods/services, if invoice/request is received before such date specific discipline is provided for deteriorating foodstuff RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

4. Article 5: level of interest for late payment unless otherwise agreed upon between the parties the level of interest for late payment is equal to the interest rate applied by the European Central Bank to its most recent refinancing operation carried out on the first calendar day of the half year considered plus at 7 percentage points and applies for the subsequent six month term RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

5. Article 5: Applicable Interest Rate RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

6. Article 7: Grossly Unfair Agreements Pursuant to article 7: the agreement on the payment date or on the consequences of the delayed payment is void if results to be grossly unfair for the creditor, considering: the good commercial practice the nature of goods/services the contractual relationships any other circumstance RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

7. Payment delay in dealing with public administration Greatest difficulties in obtaining timely payments are met by private undertakings when dealing with the public administration: the public administration often performs delayed payments, with possible damages to private companies RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

8. An example: the pharmaceutical sector RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

9. RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

10. COURT CASES DEALING WITH CLAUSES NON CONSISTENT WITH d.lgs. 231/2002 Council of State n. 4996/2007 It is void the clause of a tender which imposes the acceptance of payment within 120 days from the receipt of invoice Derogation to the payment terms and interest rates for late payment provided for by d.lgs 231/2002 is allowed only if expressly and voluntarily agreed upon by the parties RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

11. COURT CASES DEALING WITH CLAUSES NON CONSISTENT WITH d.lgs. 231/2002 Council of State n. 43/2006 It is void the exclusion from a tender of a company in presence of an acceptance of all the clauses of the tender and of a separate declaration that void clauses are not accepted Criteria for compensation of the occurred damage RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

12. COURT CASES DEALING WITH CLAUSES NON CONSISTENT WITH L.D. 231/2002 Administrative Court of Piemonte n. 3292/2007 It is void the provision in tenders of clauses imposing payment term of 150 days from the receipt of invoice and interest rate of 0,25% over the reference rate. Action by an association of undertakings representing collective interests pursuant to art. 8 of d.lgs 231/2002 RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

13. Settlements with the public entities Extraordinary transactions in the case of the settlements on healthcare receivables: A view on the side of creditors RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

14. Legal Actions as a mean to fight delay payments Art. 5 of the directive ensuring that an enforceable title can be obtained on unchallenged claims vs. legislation and practice on credit collection in Italy RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

15. The extraordinary interventions The case of law decree n. 277/2004 on the “Ordine Mauriziano” (exclusion of attachment procedures and the request of interests during a certain time frame). Issues of compliance with the EC Directive 35/2000 RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

16. The Late Payment Directive as implemented in Italy: recent cases and possible developments Antonio Debiasi Rucellai & Raffaelli Milan - Italy RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Law Firm

17. Antonio Debiasi RUCELLAI&RAFFAELLI Via Montenapoleone, 18 20121 Milano - Italy