An Act of 14 August 2021 has just amended the Act of 2 August 2002 on combating late payment in commercial transactions and strengthens the current provisions that protect the unpaid creditor.
As a reminder, this Act, which implements Directive 2011/7 of 16 February 2011 on combating late payment in commercial transactions, provides for late-payment interest (higher than the statutory rate — currently 8%) and fixed-sum compensation in the event of non-payment within the deadlines (30 days in the absence of a stipulation). The aim is to protect SMEs, which are often forced to accept payment terms that strain their cash flow.
The main new features are that the maximum payment period of 60 days can no longer be extended contractually (including by providing for an invoice "approval" procedure or by contractually setting its due date), as well as the automatic application of a fixed-sum compensation of EUR 40 where the payment period is exceeded.
The personal scope covers undertakings (a broad notion) and public authorities, subject to the application of the provisions on public procurement.
As for the material scope (the "commercial transactions"), it is extremely broad: low-value public contracts, professional leases, sale prices (including real estate sales), construction contracts, etc. — but it does not extend, for example, to insurance indemnities.
In practical terms, if your contracts provide for payment periods of more than 60 days, they will have to be reviewed (or you will have to seek to have the clauses set aside), all the more so since a breach of the Act of 2 August 2002 could also constitute an unfair clause within the meaning of the recent "B2B" Act of 4 April 2019, to which we have already drawn your attention.
The Act will enter into force on 1 February 2022, which gives undertakings a little time to adapt their contractual documents.
Contact Laurent Delmotte (ld@resolved.law) for comments or questions.
