In order to promote business competitiveness and strengthen the functionality of the Romanian market as an integral part of the European Union’s internal market, efficient mechanisms have been necessary to combat delays in the execution of payment obligations arising from contracts between professionals and between them and contracting authorities.
As a result, Directive 2011/7/EU was adopted, and it was transposed into Romania through Law 72/2013. Law No. 72/2013 regulates measures to combat delays in the execution of payment obligations for sums of money arising from contracts between professionals and between them and contracting authorities.
The law applies to certain, liquid, and due claims, consisting of obligations to pay sums of money resulting from a contract concluded between professionals or between them and a contracting authority. The contract aims at supplying goods or providing services, including the design and execution of public works, buildings, and civil construction works.
It is important to note that the following are not covered by the mentioned law:
– Claims entered in the list of claims within an insolvency procedure and claims subject to an ad-hoc mandate, preventive concordat, or an agreement resulting from out-of-court negotiations for the restructuring of a company’s debts.
– Contracts concluded between professionals and consumers.
Among the most important provisions of Law No. 72/2013 are the following:
- The maximum payment term for the price is:
– 60 days between professionals;
– 30 days between authorities and professionals.
Exceptionally, the parties may stipulate a different payment term in the contract, provided that this clause is not abusive.
- Determination of penalty interest rates and the starting point from which they begin to accrue.
- Establishment of minimum damages of 40 euros.
- Mention of examples of abusive clauses and criteria that the court may consider when qualifying a clause as abusive.
A novelty is the initiation of the replacement of Directive 2011/7/EU through the proposal by the European Commission of the Regulation of the European Parliament and of the Council on combating late payment in commercial transactions.
Considering identified difficulties, such as the lack of preventive measures and effective mechanisms to ensure compliance with legislation, the following main changes are proposed:
- Introduction of a single payment term for commercial transactions, 30 days from the date of receipt of the invoice by the debtor or an equivalent payment request, provided that the debtor has received the goods or services;
- Elimination of the parties’ right to establish a contractual payment term (except in situations where they would constitute an abuse of rights against the creditor);
- Also eliminating the creditor’s right to waive the right to claim late payment penalties from the debtor;
- Penalty interest would be automatically due in case of non-compliance with the payment term (without the obligation for the creditor to notify or put in delay);
- Imposition of a special procedure for obtaining an enforceable title for debt recovery, within 90 days, regardless of the value of the claim.
Thus, Directive 2011/7, transposed through Law 72/2013, will no longer be applicable from the date on which the Regulation of the European Parliament and of the Council on combating late payment in commercial transactions becomes effective.
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Bianca Dan – Attorney at Law