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2 AOUT 2002. - Anti-duty payment law in commercial transactions (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It implements the principles of Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating delay in payment in commercial transactions.
Art. 2. For the purposes of this Act:
1. "commercial transaction": any transaction between companies or between companies and procuring authorities or procuring entities that leads to the provision of goods or services for compensation;
2. "company": any organization acting in the exercise of an independent economic or professional activity, even when this activity is carried out only by one person;
3. "Adjudicator or procuring entity": any power or entity referred to in the Public Procurement Act of 24 December 1993 and certain contracts of work, supplies and services;
4. "Direct rate": the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out prior to the first calendar day of the semester in question when the transaction was carried out according to a fixed-rate tender procedure. When the transaction was carried out according to a variable rate tender procedure, the master rate is the marginal interest rate resulting from this call for tenders, both in case of single-rate auctions and in case of multiple-rate auctions;
5. "professional authority": the professional order or the professional institute which, under the law, is competent to regulate the professional activity of a specified profession.
Art. 3. This Act applies to all payments made in remuneration for commercial transactions.
It does not prejudice the special rules relating to insolvency proceedings, including the provisions of the Bankruptcy Act of 8 August 1997, the Act of 17 July 1997 on judicial concordat and Title IV "The collective debt settlement" of Part 5 of the Judicial Code.
Nor does it prejudice the provisions of the Royal Decree of 26 September 1996 establishing the general rules for the execution of public procurement and public works concessions.
CHAPTER II. - Lack of payment in commercial transactions
Art. 4. If it has not been otherwise agreed by the parties in accordance with section 7, any payment in remuneration for a commercial transaction must be made within 30 days of 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.
Art. 5. If the debtor has not otherwise been agreed by the parties in accordance with Article 7, where the debtor does not pay within the agreed payment period or, failing that, within the payment period provided for in Article 4, the creditor shall, as of the next day, be entitled to the payment of an interest to the master rate increased by seven percentage points and rounded to the upper half-point of percentage.
The Minister of Finance communicates the rate as determined, as well as any modification of this rate, by a notice published in the Belgian Monitor.
Art. 6. If the debtor has not otherwise been agreed to by the parties in accordance with Article 7, where the debtor does not pay within the agreed payment period or, failing that, within the payment period provided for in Article 4, the creditor is, in addition, in law, without prejudice to his right to reimbursement of judicial costs in accordance with the provisions of the Judicial Code, to claim the debtor a reasonable compensation for all the relevant collection costs incurred as a result of the payment. The application of this article excludes the allocation to the creditor of the amounts provided for in Articles 1018, paragraph 1^er, 6°, and 1022 of the Judicial Code.
Such collection costs must respect the principles of transparency and be in proportion to the debt concerned.
The King fixes the maximum amount of this reasonable compensation for collection costs for different levels of debt.
Art. 7. Any contractual clause that derogates from the provisions of this chapter shall be revised by the judge, at the request of the creditor, where, in the light of all elements of the case of a species, including good practices and commercial uses and the nature of the goods or services, it constitutes a clear abuse of the creditor, provided that the fair conditions that the judge determines may not grant the creditor more rights than those available under this chapter.
In assessing the manifestly abusive nature within the meaning of the preceding paragraph, the judge shall consider, inter alia, whether the debtor has objective reasons to waive the provisions of this chapter.
Any clause contrary to the provisions of this section shall be deemed unwritten.
CHAPTER III. - On-line action
Art. 8. The President of the Court of First Instance or, where the action is directed against traders or their professional or inter-professional groupings, the President of the Court of Commerce notes the existence and orders the termination of the use of contractual clauses that constitute a manifest abuse within the meaning of Article 7.
Art. 9. The termination action referred to in section 8 shall be initiated upon application:
1° of interested persons;
2° of the competent minister or competent ministers for the matter concerned;
3° of professional authority or professional or interprofessional grouping with civil personality.
By derogation from articles 17 and 18 of the Judicial Code, the proceedings referred to in the preceding paragraph, 3°, may take action to defend their statutory collective interests.
Termination action on the application of a proceeding referred to in paragraph 1^er, 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 clauses, or similar clauses.
Art. 10. Cessation action is formed and instructed according to the forms of the referee.
It may be filed by contradictory request in accordance with articles 1034ter to 1034sexies of the Judicial Code. She's signed by a lawyer.
The judgment is enforceable by provision, notwithstanding any appeal, and without bail.
Any decision shall be communicated to the competent professional authorities and the competent ministers in the eighties and to the due diligence of the Registrar of the competent court.
In addition, the Registrar of the Jurisdiction to which an appeal is brought against such a decision is required to inform the competent professional authorities and the competent ministers without delay.
Art. 11. The President of the competent court may order the posting of his or her decision or the summary that he or she prepares, during the period that he or she determines, both outside and within the institutions of the offender and order the publication of his or her judgment or summary by means of newspapers or in any other way, at the expense of the offender.
CHAPTER IV. - Final provisions
Art. 12. Article 587, paragraph 1^er, of the Judicial Code, amended by the laws of 3 April 1997, 10 August 1998 and 4 May 1999, is supplemented by the following provision:
"10° on requests under section 8 of the Act of 2 August 2002 concerning the fight against delay in payment in commercial transactions, which are directed against non-commercial persons or their professional or interprofessional groupings. »
Art. 13. Section 589 of the Judicial Code, as amended by the Acts of 11 April 1999, is supplemented by the following provision:
"7° to Article 8 of the Act of 2 August 2002 concerning the fight against payment delay in commercial transactions, which are directed against merchants or their professional or interprofessional groupings. »
Art. 14. This Act applies to payments made pursuant to contracts concluded, renewed or extended after August 7, 2002.
It applies in any case to payments made pursuant to ongoing contracts, two years after August 7, 2002.
Art. 15. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Punat on 2 August 2002.
ALBERT
By the King:
For the Prime Minister, absent:
Deputy Prime Minister and Minister of Budget,
of Social Integration and Social Economy,
J. VANDE LANOTTE
Minister of Justice,
Mr. VERWILGHEN
For the Minister of Finance, absent:
Minister of Justice,
Mr. VERWILGHEN
For the Minister of Telecommunications and Enterprises
and Public Participation, in charge of the Middle Class, absent:
Minister of Justice,
Mr. VERWILGHEN
Minister of Economy,
Ch. PICQUE
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Session 2001-2002.
House of Representatives.
Parliamentary documents. - 50-1827: No. 1: Bill. - No. 2: Amendments. - No. 3: Amendments. - No. 4: Amendments. - No. 5: Report. - No. 6: Text adopted by the Commission on Trade and Economic Law Problems. - No. 7: Text adopted in plenary and transmitted to the Senate.
Annales parliamentarians. - Discussion and adoption. Sessions of July 3 and 4, 2002.
Senate.
Parliamentary documents. - 2-1232: No. 1: Project referred to by the Senate. - No. 2: Report.
Annales parliamentarians. - Discussion and adoption. Session of July 17, 2002.