Posted the: 2002-08-07 Numac: 2002009716 SERVICE PUBLIC FÉDÉRAL JUSTICE 2 August 2002. -Law on combating late payment in commercial transactions (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: chapter I:. -Provisions General Article 1. 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 late payment in commercial transactions.
S. 2. for the purposes of this Act, means: 1. "commercial transaction": any transaction between companies or between companies and the contracting authorities or contracting entities which led to the supply of goods or the provision of services for remuneration;
2 ' undertaking': any organization acting in the exercise of an economic activity or independent professional, even where it is carried on by a single person;
3 "power contracting authority or contracting entity": any authority or entity covered by the law of 24 December 1993 relating to procurement and certain contracts for works, supplies and services;
4. 'reference rate': the interest rate applied by the European Central Bank to its main most recent refinancing operation carried out before the first calendar day of the semester in question when the relevant transaction was made according to a fixed rate tender procedure. When the relevant transaction was made according to a variable rate tender procedure, the key rate is the marginal interest rate resulting from this call for tenders, as well in the case of single rate as in the case of multiple rate auctions auctions;
5. "professional authority": the professional or the Professional Institute which, under the Act, is responsible for regulating the professional activity of a particular profession.
S. 3. this Act applies to all payments made as remuneration for commercial transactions.
It is without prejudice to the special rules on insolvency proceedings and particularly to the provisions of the law of 8 August 1997 on bankruptcy, the law of 17 July 1997 on judicial administration and title IV "for the collective settlement of debts" of the fifth part of the Judicial Code.
It does not prejudice the provisions of the royal decree of 26 September 1996 laying down general implementing rules for public procurement and public works concessions.
CHAPTER II. -From late payment in commercial transactions art. 4. If it has been otherwise agreed by the parties in accordance with article 7, any payment in compensation of a commercial transaction should be made within a period of 30 days from the day following that: 1 ° of receipt by the debtor of the invoice or an equivalent request for payment, or 2 ° of the receipt of the goods or the provision of services , if the date of receipt of the invoice or the equivalent payment request is uncertain or if the debtor receives the invoice or the payment equivalent before the goods or services, or 3 ° acceptance or verification request to certify the conformity of the goods or services with the contract, if the law or contract provides for a procedure of acceptance or verification , and if the debtor receives the invoice or the application of equivalent payment earlier or on the date of acceptance or verification.
5. If it has been otherwise agreed by the parties in accordance with article 7, where the debtor pays in the period agreed payment or, failing that, in the period for payment laid down in article 4, the creditor is entitled, as of the next day, by right and without notice, to the payment of interest at the rate increased by seven percentage points and rounded up to the higher half.
The Minister of Finance shall communicate the rate so determined, as well as any change in that rate, by a notice published in the Moniteur belge.
S. 6. If it has been otherwise agreed by the parties in accordance with article 7, where the debtor pays in the period agreed payment or, failing that, in the period for payment laid down in article 4, the creditor is, moreover, in law, without prejudice to its right to reimbursement of legal expenses in accordance with the provisions of the Judicial Code claim from the debtor a reasonable compensation for all relevant collection incurred due to late payment fees. The application of this article excludes the allocation to the creditor the sums provided in articles 1018, paragraph 1, 6 °, and 1022 of the Judicial Code.
These collection costs must respect the principles of transparency and be in proportion with the relevant debt.
The King sets the maximum amount of this reasonable compensation for the costs of recovery for different levels of debt.
S. 7. any contractual clause which derogates from the provisions of this chapter will be revised by the judge, at the request of the creditor, when, taking into account all elements of the case, including good practices and trade usages and the nature of the products or services, it constitutes a manifest to the creditor abuse, understanding that fair conditions that the judge determines may not give the creditor more rights than those it would have under the provisions of this chapter.
When assessing the obviously abusive character within the meaning of the preceding paragraph, the judge consider inter alia if the debtor has any objective reasons to derogate from the provisions of this chapter.
Any clause contrary to the provisions of this section is deemed unwritten.
CHAPTER III. -Of the action in cessation s. 8. the president of the Court of first instance or, where the action is directed against traders or their professional or interprofessional groups, the president of the tribunal de commerce, notes the existence and ordered the cessation of the use of contractual clauses which constitute an abuse manifest within the meaning of article 7.
S. 9. the action for an injunction referred to in article 8 is formed at the request: 1 ° of the persons concerned;
2 ° the competent Minister or Ministers responsible for the matter in question;
3 ° the professional authority or a professional or interprofessional grouping enjoying legal personality.
By way of derogation from articles 17 and 18 of the Judicial Code, the bodies referred to in the preceding paragraph, 3 °, can sue for the defence of their statutorily defined collective interests.
The action in cessation formed at the request of a proceeding referred to in paragraph 1, 3 °, may be directed separately or jointly against several undertakings in the same economic sector or their professional or interprofessional groups which use or recommend the use of the same general contractual clauses or similar clauses.
S. 10. the action for an injunction is formed and educated according to the forms of the referee.
It can be introduced by inconsistent application in accordance with articles 1034ter to 1034sexies of the Judicial Code. It is signed by a lawyer.
The judgment is enforceable by provision, notwithstanding any appeal and without bail.
Any decision is, in the eight, and the diligence of the clerk of the competent court, communicated to the competent professional and competent Ministers.
In addition, the clerk of the Court before which an action is brought against such decision, is required to inform without delay the competent occupational authorities and Ministers.
S. 11. the president of the competent court may order the display of its decision or the summary that he wrote, during the period as it may determine, both outside and inside the establishments of the offender and order the publication of his judgment or the summary through newspapers or in any other manner, all at the expense of the offender.
CHAPTER IV. -Provisions finals s. 12. article 587, paragraph 1, of the Code, amended by the law of 3 April 1997, 10 August 1998 and 4 May 1999 shall be supplemented by the following provision: "10 ° on applications provided for in article 8 of the law of 2 August 2002 on combating late payment in commercial transactions, which are directed against individuals not shopping or their professional or interprofessional groups."
S. 13. article 589 of the Judicial Code, amended by the laws of 11 April 1999, is supplemented by the following provision: «7 ° in article 8 of the law of 2 August 2002 on combating late payment in commercial transactions, which are directed against traders or their professional or interprofessional groups.»
14. this Act applies to payments made pursuant to contracts concluded, renewed or extended after August 7, 2002.
It applies to payments made in execution of contracts in progress, two years after August 7, 2002.
S. 15. this Act comes into force the day of its publication in the Moniteur belge.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given to Punat, 2 August 2002.
ALBERT by the King: for the Prime Minister, absent: the
Deputy Prime Minister and Minister of Budget, Social Integration and social economy, J.
VANDE LANOTTE the Minister of Justice, Mr. VERWILGHEN for the Minister of finance, absent: the Minister of Justice, Mr. VERWILGHEN for the Minister of Telecommunications and public Participations and businesses, responsible Middle Classes, absent: the Minister of Justice, Mr. VERWILGHEN. the Minister of economy, c.
PICQUÉ sealed with the seal of the State: the Minister of Justice, Mr. VERWILGHEN _ Note (1) Session 2001-2002.
House of representatives.
Parliamentary papers. -50-1827: No. 1: Bill. -No. 2: amendments. -No. 3: amendments. -No 4: amendments. -No 5: report.
-No 6: text adopted by the Committee for economic and commercial law issues. -No 7: text adopted in plenary meeting and transmitted to the Senate.
Parliamentary Annals. -Discussion and adoption. Sessions 3 and 4 July 2002.
Parliamentary papers. -2-1232: No. 1: project referred by the Senate. -No. 2: report.
Parliamentary Annals. -Discussion and adoption. Meeting of July 17, 2002.