With a view to transposing Directive 2011/7/EU of the European Parliament and of the Council
of 16 February 2011 on combating late payment in commercial
transactions, the domestic legislation has been amended accordingly under Law
No 72 / 2013 implementing the aforesaid Directive as of 2 April 2013
Monitorul Oficial al Romaniei, Part I, No 182 / 2 April 2013 has published Law No 72 / 2013, regarding measures towards combating late payment of debts resulting from contracts concluded between professionals and between them and contracting authorities.
The provisions of the new legislative act apply to liquid, due and payable debts consisting of payment obligations arising out of contracts concluded between professionals or between them and a contracting authority, the subject matter of which is the supply of goods or the provision of services, including the design and performance of public works, buildings and civil construction works, and services rendered by healthcare institutions.
The Law does not cover:
– debts owed to creditors by debtors undergoing insolvency proceedings;
– debts arising out of an ad-hoc mandate / pre-emptive composition with creditors or out of an agreement concluded after extrajudicial negotiations have been held on corporate debt restructuring;
– debts resulting from contracts concluded between professionals and consumers
The new aspects highlighted by this legislative act refer particularly to the setting of maximum time limits for the payment of debts, the determination of legal interest, the regulation of the minimum amount of additional damages, as well as to a list, which is not exhaustive, of abusive clauses and criteria for the establishment of such abusive clauses and practices.
As regards the contractual relations between professionals, the legislative act pinpoints the time limit for the payment of debts, which may not exceed 60 days, except for special cases and only if there is no proof of any abuse against creditor.
When no maturity date is set out in the contract and the parties thereto have not established any penalties, the legal penalty interest shall be established as provided under Government Ordinance No 13 / 2011. According to the new regulations, the amount of the penalty interest shall be calculated in consideration of the benchmark interest rate to which 8 percentage points shall add.
The legal interest shall
commence running as follows:
– 30 days after the receipt of invoice;
– 30 days after the receipt of goods or services, if the invoice date is uncertain;
– 30 days after the acceptance of goods or services. As the Law stipulates, the acceptance period may not be longer than 60 days, excepting the situations in which the clauses setting a longer term are not abusive to creditor.
Whereas the Directive places emphasis on the interdiction of abuse in matters of contractual freedom to creditors’ detriment, the new legislative act defines the abusive clause and practice from the angle of debtor’s relation with creditor.
When establishing the abusive character of a clause or practice, courts of law shall take into account the circumstances of the cause of action, particularly the nature of goods or services, the absence of objective reasons for deviation from time limits for payment or from interest rate, the dominant position of the co-contracting party in relation to a small or medium-sized undertaking, the gross deviation from the practices agreed upon by the parties or from public order or mores, and the infringement of the good-faith principle and diligence in performing obligations.
Without providing for any requirement to verify the aforementioned circumstance, the Law establishes, under the pain of absolute nullity, that abusive clauses shall be deemed the contractual clauses which:
– exclude the possibility for the application of penalty interest or set such interest at a rate lower than the legal one;
– provide for creditor’s obligation to notify the debtor that interest commences running;
– set a time limit longer than legally established for the operation of interest;
– provide, in the contracts between professionals and contracting authorities, a time limit exceeding 60 days under specific conditions;
– eliminate the possibility for payment of additional damages;
– establish a deadline for the issuance / receipt of invoice.
As regards recovery costs, the creditor may claim damages for all expenses which such creditor has incurred for the recovery of debt.
As a novelty, a minimum level of damages / compensation worth EUR 40 is set which a creditor may claim for debtor’s late payment.
LEGAL ALERT by Duncea, Stefanescu & Associates / MAZARS
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