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1. Introduction:

This article shall analyse the new aspects brought about by Directive 2011/7/UE, which establishes measures for combating late payment in commercial transactions, in respect of the Spanish regulations currently in force, which shall in the future entail a new modification of Law 3/2004 of 29th July on the measures for combating late payment in commercial transactions.

2. Legal adjustment:

2.1 Terms:

Law 15/2010 of 5th July was passed in order to adapt the aforesaid Law 3/2004 to the new corporate context arising from the economic crisis of 2008. As a result of the crisis the occurrence of non-payment, delays in payment and extensions for the payment of due invoices has increased. Law 3/2004 did not contemplate a time limit for fixing payment terms in commercial operations, since it was left to the parties involved to decide such terms. The entering into force of Law 15/2010 brought with it the establishment of 60 natural days as a time limit for payments in commercial relations between companies and 30 working days in operations between companies and the Authorities. However, this process is undergoing a period of transition, and accordingly, for commercial operations between private entities for the year 2011 the maximum payment term has been fixed at 85 days, for the year 2012 this is reduced to 75 days, and the final reduction limits the payment term to 60 days as from 1st January 2013. A scale has also been established for operations with the Authorities, and the payment term for 2011 has been fixed at 50 days, which is reduced to 45 days for 2012 and the final reduction limits the payment term to 30 days as from 1st January 2013.

In this context, on 23rd February 2011, Directive 2011/7/UE was published in the Official Gazette of the EU, meaning a complete turn around for the current payment terms in commercial operations as set forth in the Spanish legislation. In this Directive, measures for combating late payment in commercial operations are established, giving rise to a payment term of 60 natural days for commercial operations between private entities and 30 natural days for operations between companies and the Authorities. However, as a result of commercial spirit and the priority of the will of the parties in operations between companies, an “escape route” is offered, which allows said payment terms to be extended, by express agreement of the interested parties, and in accordance with section 13º of the Directive, which includes only one limitation in that said extension “is not manifestly abusive to the creditor”. Section 23º of the Directive also offers the possibility to extend the payment terms regarding operations with the Authorities, also by express agreement, however, with a limit of 60 days in comparison to the 30 days initially set forth in Law 15/2010.

Pursuant to the above, we may observe how the Directive, which must be implemented in the Spanish Legal System before 16th March 2013, again allows the parties (in the process of “digestion” and assimilation of the reduction of the payment terms set forth in Law 15/2010) to extend the term to 60 natural days, providing that “it does not imply an action which is manifestly abusive to the creditor”. The Directive does not define “manifestly abusive” in a precise way, since in article 7º thereof, it is simply established that in order to determine said supposition, all of the circumstances surrounding a specific case shall be taken into account, pointing out amongst them the following:

1. Serious deviation from good commercial practice, contrary to good faith and fair actions.

2. The nature of the goods or services.

3.  Situations wherein the debtor may have an objective reason to stray from the legal interest rate for delayed payments, the general stipulated payment term or the minimum fixed amount as compensation for the costs of payment collection.

In any case, manifestly abusive practices shall be understood to be those which exclude the application of interest for delayed payments or the compensation for payment collection costs in the case of non-payment.

2.2 Compensation for payment collection costs:

Another new aspect presented by the Directive in article 6º is the compensation for payment collection. In cases whereby interest for delayed payments is demandable in commercial operations between companies, as well as between companies and the Authorities, the creditor shall be entitled to charge the debtor a minimum fixed charge of 40€. Furthermore, the creditor shall be entitled to demand from the debtor a “reasonable” compensation for the costs exceeding this fixed amount arising from the delay of the debtor (legal costs, debt collector agencies …)

2.3 Unchallenged credit collection proceedings:

Finally the Directive contemplates a new accelerated procedure for the collection of unchallenged credits in article 10º, appealing to the Member States in order for them to obtain enforceable bills introducing an accelerated proceeding, independent from that which generated the debt, estimated at 90 days after the filing of the lawsuit or application for said process, conditioning the aforesaid proceedings to the absence of challenge to the debt or questions regarding the proceedings.

3. Conclusion:

We may observe that the transposition of Directive 2011/7/UE, which must be completed by 16th March 2012, shall generate the return to freely fixing the terms of payment in accordance with the wishes of the parties, only limited in commercial operations between companies when said action is not “manifestly abusive”. In the case of operations between companies and the Authorities, the extension may only reach a maximum of 60 natural days (compared with the 30 days established as a general rule).

This situation clashes with the reform carried out last year, when we still found ourselves in the transitory period of application for the payment terms established in Law 15/2010. We therefore foresee a period of instability and new changes in order to adapt the new aspects presented by the aforementioned Directive. Likewise, we consider that other new aspects such as the proceedings for the collection of unchallenged credits shall be difficult to apply in practice given that they shall require judicial intervention, which shall be very seldom sought due to the costs and slowness of the court proceedings.

For more information, please contact:

Ismael PERALTA: ipv@vila.es/en

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