Recital (12)

The rules on avoidance actions introduced by this Directive should not apply to certain legal acts that constitute congruent coverage, namely legal acts that are performed directly in exchange for fair consideration to the benefit of the debtor’s assets. Those legal acts aim to support the ordinary daily operation of the debtor’s business. In order not to be subject to the rules on avoidance actions, such legal acts should have a contractual basis and require the direct exchange of the parties’ mutual performances. Furthermore, performance and counter-performance arising from those legal acts should be equivalent in value and the counter-performance should benefit the debtor and not a third party. Legal acts to which the rules on avoidance actions should not apply include: prompt payment of commodities, wages, or service fees; payment in cash or by card of goods necessary for the debtor’s daily operations; delivery of goods, products, or services against payment by return; creation of a security right against disbursement of the loan or during the continuation of a loan, where that is necessary, in the context of national rules, to maintain an equivalence in value between performance and counter-performance; and prompt payment of public fees in exchange for consideration such as admittance to public grounds or institutions. However, the rules on avoidance actions should apply to the granting of credit. It should be possible to consider that the payment of wages to a debtor’s worker, in accordance with national law, is direct performance where they are paid within three months of the performance of the services by that worker.