If you are a company and your customer has unpaid invoices, you should take note of the following obligations in force as from September, 1 2023.
Check (or have checked) whether your (automatic) reminders and your general terms and conditions comply with these mandatory conditions. Otherwise, your reminder will be invalid and you will miss out your late payment interest and your penalty clause amount.
Important is that these rules only apply to debt recovery from consumers and not when the debtor is a legal entity or an individual acting for purposes within his trade, business, craft or profession.
So what are the new rules when recovering debts from a consumer (i.e. not another company)?
1. Penalty clause only after a first letter of summons
If the consumer has not paid his debt by the due date of the invoice and your general terms and conditions provide for a penalty clause, you will only be able to claim these damages after you have sent first a letter of summons.
This formal notice should serve as a first reminder and only after the expiration of a period of at least 14 calendar days the penalty clause can be applied and damages be requested.
Please note that the period of (at least) 14 days only starts:
- on the third working day after the reminder was sent to the consumer; or
- on the calendar day following the day on which the reminder was sent to the consumer electronically (such as by e-mail).
These rules apply to all other time limits referred to with regard to the recovery of unpaid invoices.
2. No first reminder costs
From now on, the consumer can no longer be charged with a fee for the first reminder in case of non-payment of one due date.
In the case of contracts for the regular supply of goods or services, no fees may be charged for reminders for non-payment of three due dates, per calendar year.
The cost of additional reminders may not exceed € 7.50, plus postage applicable at the time of sending.
3. What conditions must such reminder letter meet?
First of all, reminders must be sent on a "durable medium". This means that there must be a material proof of the reminder, such as a registered letter or an e-mail. A reminder verbally made is not sufficient.
The first formal reminder must also contain at least the following information:
1° the balance due and the amount of the damages clause that will be claimed if payment does not follow within the period of 14 calendar days;
2° the name or trade name and the company number of the creditor;
3° a description of the product that gave rise to the debt, as well as the date on which this debt became due and payable;
4° the period within which the debt must be repaid before any costs, interest or compensation may be claimed.
For SMEs, these rules are more flexible.
If a consumer does not pay his invoice within the 14-day period after the first reminder is sent and if a penalty clause stipulates that a late payment interest applies within the legal limits, an SME can decide to apply the late payment interest as from the calendar day following the day the reminder was sent to the consumer.
If one wishes to proceed to further amicable recovery, the following (more extensive) conditions will have to be met:
1° the identity, company number, address, telephone number, status and any e-mail address of the original creditor. In the event of an assignment of the claim, the details of the new creditor must also be given;
2° the name or trade name, address, company number and contact details of the company proceeding to amicable recovery, as well as the details of the competent supervisory body at the FPS Economy;
3° a precise description of the product which gave rise to the debt, as well as its due date;
4° a precise and detailed description of the amounts claimed from the debtor;
5° the following text, in a separate paragraph, in bold and in a different font, in case the a lawyer, a ministerial official or a judicial officer are charged to recover the debt:
"This letter does NOT concern a summons to court or attachment. It does not concern a procedure of judicial recovery."
6° the indication that the consumer may, at his own request, obtain all documents justifying the debt;
7° the indication of the procedure to be followed by the consumer if he wishes to contest the debt;
8° the indication that the consumer may request payment facilities if he cannot pay the amount due in one go;
9° the indication that, in the absence of a response within the period granted, other measures or actions of amicable recovery may be taken.
4. Penalty clause amount
You will only be able to claim the following damages from consumers if your invoices remain unpaid:
1° interest for late payment, which may not exceed the interest at the reference interest rate (as provided for in the law on late payment in commercial transactions) plus 8 percentage points. This interest shall be calculated on the sum still to be paid, and/or;
2° a lump-sum compensation, provided it is expressly stipulated in your general terms and conditions and the amount of which may not exceed:
(a) €20 € if the balance due is less than or equal to €150 €;
(b) €30 plus 10% of the amount due on the tranche between €150.01 and €500 if the balance due is between €150.01 and €500;
(c) €65 plus 5% of the amount due on the tranche above €500 with a maximum of €2,000 if the balance due is higher than €500.
These amounts are intended to cover, on the one hand, the late payment interest of the debt and, on the other hand, all costs of the amicable recovery of the unpaid debt.
Any damages clause to the contrary is prohibited and deemed unwritten.
5. Payment plan
If the consumer has applied for a payment plan, no other amicable recovery measure or action may be taken before a decision has been taken on its application.
If the decision is not taken within a period of 30 calendar days starting from the first working day following the request for a payment plan, the late payment interest laid down in the penalty clause shall cease to run when the decision is taken.
6. Request for debt mediation
When the consumer has initiated a request for debt mediation with an amicable debt mediator or when he submits an application for a collective debt settlement procedure, no other amicable recovery measure or action may be taken.
Where the consumer has applied for payment plan, no other measure or act of amicable recovery may be taken until a decision has been made on this application.
If the decision is not made within a period of 30 calendar days starting from the first working day following the request for payment plan, the late payment interest stipulated in the penalty clause shall cease to run until the decision is made.
7. Dispute of the debt
If the consumer disputes the debt in a justified manner, no other measure or behaviour of amicable recovery may be undertaken before a decision on the dispute has been taken. If the decision is not taken within a period of 30 calendar days starting from the first working day following the dispute, the late payment interest laid down in the penalty clause will cease to run until the decision is taken.
8. What do you risk?
This new regime applies to contracts concluded from September 1, 2023 onwards. For existing contracts, there is a transitional arrangement that runs until December, 1 2023.
From now on, you may not include any exemption from these rules in your general terms and conditions. Any clause providing for an exemption from these formal requirements or providing different amounts for late payment interest and damages is prohibited and void.
In that case, you are prohibited from claiming any late payment interest and damages from your customer.
But it does not stop there. On top of that, you risk penalties for various offences, such as when you:
- send a first payment reminder not in accordance with the law;
- miscalculated the late payment interest and/or the penalty clause;
- failed to comply with your obligations to provide information.
The sanctions in case of offences against the law are large fines, that can go up to even 4% of the total annual turnover.
It is therefore important to review your general terms and conditions and summons letters and or have them reviewed to avoid problems with the collection of your invoices and avoid penalties.
Therefor do not hesitate contacting our specialists on email@example.com or +32 (0)2 747 40 07.