Action brought on 28 July 2023 – European Commission v Portuguese Republic
(Case C-487/23)
Language of the case: Portuguese
Parties
Applicant: European Commission (represented by: L. Santiago de Albuquerque and G. Gattinara, acting as Agents)
Defendant: Portuguese Republic
Form of order sought
The applicant claims that the Court should:
1. Declare that the Portuguese Republic has failed to fulfil its obligations under Article 4(3) and (4)(b) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, 1 by failing to ensure and to ensure that:
local government, in 2013, 2014, 2015, 2016, 2017 and 2018,
Portuguese public entities providing healthcare (health sub-sector), from 2013 to 2022,
the Autonomous Region of Madeira, from 2013 to 2022,
the Autonomous Region of Azores, in 2013 and from 2015 to 2022,
pay their commercial debts within the periods laid down in that article.
2. Order the Portuguese Republic to pay the costs.
Pleas in law and main arguments
The cause of action is the failure by the Portuguese Republic to comply with Article 4(3) and (4)(b) of Directive 2011/7/EU, from 2012 until present. Under those provisions, Member States are to ensure that, in commercial transactions where the debtor is a public authority, the payment period does not exceed 30 days. This period may be extended to 60 days for public entities providing healthcare duly recognised for this purpose. Directive 2011/7/EU provides that Member States had to transpose its provisions by 16 March 2013 at the latest.
After drawing the attention of the Portuguese Republic to the systematic and persistent non-compliance, by several Portuguese public authorities, with the terms established for payment of commercial debts set out in Article 4(3) and (4)(b) of Directive 2011/7/EU, the European Commission initiated the pre-litigation stage of the non-compliance procedure against that Member State. That non-compliance persisted at the end of the period set out in the reasoned opinion (5 December 2017).
A set of monitoring reports with data on the average payment periods of public authorities in the various sectors of Portuguese public administration, sent by the Portuguese Republic to the Commission services at their request, show that, after the expiry of the period established in the reasoned opinion and until the date when the action was brought, Portuguese public authorities in various sectors of Portuguese public administration continued to pay their commercial debts within periods longer than those provided for in Article 4(3) and (4)(b) of Directive 2011/7/EU. These are, specifically, the following public authorities:
local government, in 2013, 2014, 2015, 2016, 2017 and 2018,
Portuguese public entities providing healthcare (health sub-sector), from 2013 to 2022,
the Autonomous Region of Madeira, from 2013 to 2022,
the Autonomous Region of Azores, in 2013 and from 2015 to 2022.
Furthermore, the Portuguese Republic, in the reports for 2020, 2021 and 2022, included only incomplete data, allegedly because it did not have data for local government for those years due to a change in the accounting system for local government. Up to the date when the action was brought, the Portuguese Republic had not completed the data in the said reports nor sent updated data.
Thus, the Commission concludes that the Portuguese Republic has failed to fulfil its obligations under Article 4(3) and (4)(b) of Directive 2011/7/EU, as it has not ensured nor does it ensure, that the public authorities mentioned above pay their commercial debts within the periods provided for in that article.
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1 OJ 2011 L 48, p. 1.