The Law establishing measures to fight against late payments in commercial transactions (3/2004 Law of December 29th) represents the culmination of a legislative process developed with the purpose of adapting the Spanish legislation to the content of the 2000/35/EC Directive and drastically reducing the payment terms in the commercial field.
This communitarian Directive, approved by the European Parliament and the Council on June 29th, 2000 after a series of communitarian initiatives on this matter, intends to establish common norms of legislative harmonization destined to fight against late payments in the European single market. Its content, applicable to the operations conducted between companies or companies and public authorities, is centred on determining payment terms with greater transparency and ensuring their effective fulfilment by means of a series of dissuasive measures.
Due to the importance of this new norm for countries like Spain where the problem of companies’ late payments is considerable, we analyze the new features that this law introduces in this field.
General Characterization of the New Law
The substantial measures included by the Law are the following:
- Determination of the payment term in the absence of a pact in this sense between the parties.
- Interests on late payment, yielded at a specific point of time notification.
- Requirements for the demanding of interests on a late payment.
- The right to claim that the debtor compensate the collection costs.
Operations with the final consumer, payments conducted by means of checks, promissory notes and letters of change or to compensate for damages, and financial operations are left outside the scope of the Law. The debts related to insolvency procedures will also be governed by their special legislation.
The absence of such a legislation in the past had had the effect of expanding the average payment term to suppliers of the Spanish companies up to 68 days.
Generally, the parties are free to establish payment terms. For want of such agreement, it is regulated that the term will be of 30 days from the invoice or delivery, whichever is latest. The Law also establishes grounds to claim the nullity of abusive clauses.
The Law of Retail Commerce Arrangement that regulates the products sales to retailers for their supply to final consumers is modified in its dispositions on payment terms, establishing that the maximum payment postponements will be of 30 days in the case of perishable and fresh food products and 60 days for other food and mass consumption products, although a transitory period is established until the 1 of July 2006 with respect to these modifications, during which 90 days will be the maximum postponement. The government must duly detail all these products in a three months period.
Interests on late payment
Under the application of the new Law, if the seller has performed his obligations, the buyer’s failure to pay entails the yield of late payment interests, as of the date of its occurrence.
The type of interest will be that agreed between the parties or, in its absence, the European Central bank’s interest applied to financing operations, published every six months in the BOE, plus seven percent. Previously, in the absence of a pact, the late payment interests were the legal ones and were obtainable as from the creditor’s claim.
The indemnification of the collection costs represents an important novelty in the actions derived from non-payment, granting the creditor the right to demand a compensation not superior to 15% of the debt, except for debts inferior to 30,000 euros, in which case its limit will be the debt itself.
As a conclusion, the new law improves the creditor’s position in relation to the client.
Nevertheless, it is still not possible to determine what concrete effects it will have. The legal text itself anticipates that in two years the Government send a report to the Congress, analyzing and evaluating the consequences of the application of the law.
In any case, the feeling is that many companies, especially SME, will contemplate the possibility of exercising legal actions for a breach of payment terms against great corporations and multinationals with distrust, due to the risk of losing potential transactions with these big firms.
This article is not considered as legal advice