Law Amending The Law Of 2 August 2002 On Combating Late Payment In Commercial Transactions

Original Language Title: Loi modifiant la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales

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belgiquelex.be - Carrefour Bank of Legislation

22 NOVEMBER 2013. - An Act to amend the Act of 2 August 2002 concerning the Control of Late Payment in Commercial Transactions



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Act of 2 August 2002 concerning the Control of Late Payment in Commercial Transactions
Art. 2. Article 1er Paragraph 2 is replaced by the following:
"It transposes the Directive 2011/7/EU of the European Parliament and the Council of 16 February 2011 on the fight against delay in payment in commercial transactions. "
Art. 3. In section 2 of the Act, the following amendments are made:
1° point 1 is replaced by the following:
“1. "commercial transaction": any transaction between companies or between companies and public authorities that leads against remuneration to the provision of goods, the provision of services or the design and execution of public works and construction and civil engineering works; »;
2° in point 2, the words "other than public authorities" are inserted between the words "any organization" and the words "acting in the exercise of an activity";
3° point 3 is replaced by the following:
“3. "public power": any procuring power as defined in Article 2, paragraph 1er, point (a), Directive 2004/17/EC and Article 1er, paragraph 9, of Directive 2004/18/EC, regardless of the object or value of the contract; »;
4° in point 4, the first sentence is replaced by the following sentence:
“4. "Direct rate": the interest rate that is applied by the European Central Bank to its most recent main refinancing operation and which, when the transaction was carried out according to a fixed-rate tender procedure, is for the first half of the year concerned, the rate in effect at 1er January of the year in question and which is for the second semester of the year in question, the rate in effect at 1er July of the year in question. »;
5° the article is completed by a point 6, written as follows:
« 6. "due amount": the principal amount, which should have been paid within the contractual or legal payment period, including applicable taxes, fees, royalties or charges on the invoice or the equivalent payment request. " »
Art. 4. Section 3, paragraph 3, of the Act is replaced by the following:
"It also applies with respect to commercial transactions between companies and public authorities, where the debtor is a public authority, referred to in Article 4, § 2. "
Art. 5. In the same Act, an article 3/1 is inserted, which reads as follows:
"Art. 3/1. By derogation from section 3, paragraph 3, this Act applies to commercial transactions between businesses and the public authorities where the debtor is a public authority, only to the extent that specific provisions of the regulations relating to public procurement in respect of general enforcement rules are not applicable. "
Art. 6. Section 4 of the Act is replaced by the following:
“Art. 4. § 1er. Where the date or time of payment is not set out in the contract, any payment in remuneration for a business transaction between companies must be made within thirty calendar days from the day following that:
1° of receipt by the debtor of the invoice or an equivalent payment request, or
2° the receipt of the goods or the provision of services, if the date of receipt of the invoice or the equivalent claim is uncertain or if the debtor receives the equivalent invoice or payment request prior to the goods or services, or
3° of acceptance or verification to certify the conformity of the goods or services with the contract, if the law or contract provides for an acceptance or verification procedure, and if the debtor receives the equivalent invoice or request for payment earlier or on the date of acceptance or verification. The maximum duration of an acceptance or verification procedure does not exceed thirty calendar days after the date of receipt of the goods or service delivery, unless expressly stipulated otherwise by contract and provided that this does not constitute a clear abuse of the creditor within the meaning of Article 7.
Without prejudice to Article 7, the parties may agree on a payment period that may even exceed sixty calendar days.
§ 2. Where the date or time of payment is not set out in the contract, any payment in compensation for a commercial transaction between companies and public authorities, where the debtor is a public authority, must be made within thirty calendar days from the day following that:
1° of receipt by the debtor of the invoice or an equivalent payment request, or
2° the receipt of the goods or the provision of services, if the date of receipt of the invoice or the equivalent claim is uncertain or if the debtor receives the equivalent invoice or payment request prior to the goods or services, or
3° of acceptance or verification to certify the conformity of goods or services with the contract, if the law or contract provides for an acceptance or verification procedure, and if the debtor receives the equivalent invoice or request for payment earlier or on the date of acceptance or verification. The maximum duration of an acceptance or verification procedure shall not exceed thirty calendar days after the date of receipt of the goods or service delivery, unless expressly stipulated otherwise by contract and in the contract documents and provided that this does not constitute a clear abuse of the creditor within the meaning of Article 7.
Derogation from paragraph 1erthe parties may agree on a longer payment period, provided that it is objectively justified by the particular nature or by certain elements of the contract; the payment period agreed between parties not exceeding sixty calendar days.
Derogation from paragraph 1er and without the parties being able to agree on a longer payment period, the payment period is sixty calendar days for health-care entities, which are recognized by the authorities referred to in Articles 128, 130, 135 and 138 of the Constitution.
The date of receipt of the invoice cannot in any case be the subject of a contractual agreement between the debtor and the creditor.
§ 3. By derogation from paragraphs 1 and 2, the parties may agree on a schedule setting the amounts to be paid by instalments. In this case, if a payment is not paid on maturity, interest and compensation is calculated on the basis of the only amounts payable. "
Art. 7. In section 5 of the Act, paragraph 1er is replaced by the following:
"If the creditor has fulfilled its contractual and legal obligations and has not received the amount due to the due date, the creditor is entitled, as of the following day, in full and without standing, to the payment of an interest, except for the debtor to demonstrate that he is not responsible for the delay. If it was not otherwise agreed by the parties in compliance with section 7, this interest is the interest at the eight percentage points plus the top half-point. In the case of commercial transactions between companies and public authorities, where the debtor is a public authority, the interest is the interest at the eight percentage points plus eight percentage points and rounded to the half-point of higher percentage, notwithstanding any agreement to the contrary of the parties. "
Art. 8. Section 6 of the Act is replaced by the following:
“Art. 6. If a late interest is due in accordance with the provisions of this Act, the creditor shall be entitled to payment, in full and without standing, of a lump sum allowance of 40 euros for the collection costs incurred by the creditor.
In addition to this lump-sum amount, the creditor is entitled to reasonable compensation for all other recovery costs in excess of the lump-sum amount and incurred as a result of the late payment, including procedural compensation in accordance with the provisions of the Judicial Code. "
Art. 9. In section 7 of the Act, the following amendments are made:
1° in paragraph 2, the words "if the contractual clause creates a clear imbalance between the rights and obligations of the parties to the detriment of the creditor and" are inserted between the words "When assessing the manifestly abusive nature within the meaning of the preceding paragraph, the judge shall consider, inter alia," and the words "if the debtor has objective reasons to waive the provisions of this chapter";
2° Two sub-paragraphs are inserted between paragraphs 2 and 3:
"For the purposes of paragraph 1erany contractual or practical clause precluding the payment of interest for late payment is considered manifestly abusive. »
"For the purposes of paragraph 1era contractual clause or a practice excluding compensation for recovery costs provided for in Article 6 is presumed to be manifestly abusive. "
Art. 10. In section 8 of the Act, the words "or practices" are inserted between the words "contractual clauses" and the words "that constitute a manifest abuse".
Art. 11. In section 9 of the Act, paragraph 3 is replaced by the following:
"The termination action that is filed upon application of a proceeding referred to in paragraph 1er, 3°, may be directed, separately or jointly, against several companies in the same economic sector or against their professional or interprofessional groupings that use or recommend the use of the same general contractual or practical clauses, or similar clauses or practices. »
Art. 12. In section 14 of the Act, the following amendments are made:
1° in paragraph 1er, the words "after August 7, 2002" are replaced by the words "from March 16, 2013";
2° in paragraph 2, the words "after August 7, 2002" are replaced by the words "from March 16, 2013".
CHAPTER 3. - Final provisions
Art. 13. In the Act of 21 February 2010 amending sections 1022 of the Judicial Code and 162bis of the Code of Criminal Instruction and repealing section 6 of the Act of 2 August 2002 concerning the fight against payment delay in commercial transactions, the following amendments are made:
1° the title is replaced by the following:
"Act to amend articles 1022 of the Judicial Code and 162bis of the Code of Criminal Instruction";
2° Article 4 is repealed.
Art. 14. This Act comes into force on March 16, 2013, with the exception of section 5, which comes into force on a date to be determined by the King.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 22 November 2013.
PHILIPPE
By the King:
The Prime Minister,
E. DI RUPO
Deputy Prime Minister and Minister of Economy,
J. VANDE LANOTTE
Minister of Average Class,
P.M.E., Independents and Agriculture,
Mrs. S. LARUELLE
The Minister of Justice,
Ms. A. TURTELBOOM
Minister of Public Enterprises,
J.-P. LABILLE
Minister of Finance, Public Service,
K. GEENS
____
Note
See:
Documents of the House of Representatives:
53-2927 - 2012/2013:
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text corrected by the commission.
No. 5: Text adopted in plenary and transmitted to the Senate.
Full report: 17 July 2013.
Documents of the Senate:
5-2226 - 2013/2014:
No. 1: Project not referred to by the Senate.