The law on combating late payments in commercial transactions has been amended

Analyse The Law of 2 August 2002 on combating late payment in commercial transactions has recently been amended by the Law of 22 November 2013 (Belgian Official Gazette of 10 December 2013) pursuant to the implementation of the European Directive 2011/7/EU by the Belgian legislator. The new law entered into force on 16 March 2013.

Since a couple of years this law guarantees the rights of enterprises against bad debtors.

The amended law aims mainly to clarify certain deficiencies of the previous law and imposes stricter rules on the commercial transactions between enterprises and public authorities.

The main amendments relate to the introduction of an additional fixed compensation, the increase of the reference interest rate, an explicit delimitation of payment terms and the imposition of strict rules regarding the late payments in commercial transactions between enterprises and public authorities.

1. Payment terms

The legislator made a distinction between either commercial transactions between enterprises, or those between enterprises and public authorities, the latter being the debtor.

Just as the previous law, the new law provides a payment term of 30 days between enterprises as from the receipt of the invoice, an equivalent request of payment or the delivery of goods or services.

It is permitted between enterprises to deviate from these stipulations by contract. However, if the contractual stipulation contains a manifest imbalance between the rights and obligations of parties that might create a disadvantage for the creditor, the judge can check if the stipulation is unreasonable.

The possibilities to deviate from the legal terms with debt claims of enterprises towards public authorities are more limited and strict.

The legal payment term is 30 days as well and deviations until maximum 60 days are only permitted is stipulated explicitly. 

If parties have not agreed any payment terms, the payment term remains 30 days. However, an exception is made for public authorities that provide health care; the legal payment term for these is set to 60 days.

Moreover, the law implements procedures for the acceptance and verification of the conformity of the deliveries of the goods and services with the stipulations of the contract, which can take up to a maximum 30 days from the date of the receipt of the goods or the services, except in case of a contractual explicit deviation that is not manifest unreasonable towards the creditor. This nuanced rule is the result of the directive and is meant for extremely complex contracts.

It is important to note that the modified law is only applicable between enterprises and public authorities as a general framework for commercial transactions, to the extent that these transactions are not regulated by the specific legal provisions regarding public procurements.

2. Interests and penalty

Under the previous law, parties could agree an applicable interest rate and penalty clause. These were usually determined by the general terms and conditions of the creditor. The Law on the late payments in commercial transactions was only applied in court cases if nothing was agreed between parties.

Currently, the reference interest rate is increased by 1%, i.e. 8% above the rate applied by the European Central Bank.

To set the interest rate by contract is, as a consequence of the new law, only possible in commercial transactions between enterprises and not between enterprises and public authorities, where the legal interest rate is applicable whatsoever.

Despite the fact that the law of 22 November 2013 only has been published in the Official Belgian Gazette on 10 December 2013, it is already applicable from 16 March 2013. This means that the increased reference interest rate also applies to all commercial transactions that were closed or were ongoing onwards.

The applicable interest rate for late payments in commercial transactions under contracts concluded before 16 March 2013, is:

  • For the 1st half of 2013: 8 %
  • For the 2nd half of 2013: 7,50 %
  • For the 1st half of 2014: 7,50 %

The applicable interest rate for late payments in commercial transactions under contracts concluded, renewed or extended from 16 March 2013, is:

  • From March 16 to June 30, 2013: 9 %
  • For the 2nd half of 2013: 8,50 %
  • For the 1st half of 2014: 8,50 %

The ECB rate until June 30, 2013 was 0,75 %, 0,50 % from July 1, 2013, and 0,25 % from 1 January 2014.

3. Compensation to recovery costs

From now on, the creditor is entitled to recover a fixed compensation of EUR 40 for own expenses due to the late payment, automatically and without any notice, regardless of the amount of the principal amount.

The legally forfeit does not obstruct the creditor to claim other contractual compensations, as long as they are not unreasonable.

Beside the interests and the fixed compensation, the creditor is entitled to a “reasonable compensation for all other recovery costs” as well. The law does not specify this compensation but confirms that the compensation includes litigation costs.

Additional legal instruments to act against debtors and especially against public authorities

4. Unreasonable clause

The concept “unreasonable clause” was already mentioned in the previous law and is amplified in the new law. Hence, contractual clauses that exclude the payment of interests and compensation will be considered as unreasonable.

The unreasonable character of a contractual clause will be judged by a judge and submitted to revision.

5. Conclusion

By the implementation of the European Directive, the attempt to enforce the competition and the financial situation of undertakings by improving the framework conditions is set. 

The new law is certainly an asset for Belgian undertakings which get additional legal instruments to act against their debtors and especially against public authorities where the payment of debt claims of enterprises were problematic up till now. 

However, these improvements are just a direct consequence of the supervision of the European legislator and the new law still offers several possibilities (“backdoors”) to postpone payment. 

Furthermore, several definitions and provisions of the law are susceptible to interpretation, what will still cause legal insecurity.

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Leila Mstoian

Leila Mstoian

Leo Peeters

Leo Peeters