Parliamentary Group

Draft law No. 69 /XI

Establishes the mandatory payment of interest of late payment by the State by the

delay in the fulfillment of any pecuniary obligation

Exhibition of Motives

The delay in payment of pecuniary obligations is a comprehensive phenomenon and that,

admittedly, affects a high number of companies, creating or aggravating

treasury problems. Are known cases of companies in serious situations

arising almost exclusively from not being paid in a timely manner

due to the provision of goods and services. In a context of a lack of market liquidity,

as it is the current one, these problems become more acute.

Aware of the embarstees that companies, in particular those of small and medium size,

suffer in virtue of payment delays, as well as payment deadlines

excessive, the Decree-Law No. º32/2003 of February 17, adopts measures that they intend to

combat payment delays in commercial transactions, by transposing to the right

portuguese the Directive n º2000/35/CE, of the European Parliament and of the Council, of 29 of

June. This Decree-Law applies to transactions that give rise to the supply of

goods or the provision of services against a remuneration regardless of

have been established between private or public legal persons. However it was

approved the Code of Public Procurement, by the Decree-Law n. º18/2008 of January 29,

that applies to administrative contracts, so many contracts concluded with

public entities went on to be governed by this diploma.

In any of these diplomas is provided for the payment of moratory interest elapsed

certain period, as it happens in diverse special legislation that continues to be

applicable to contracts that do not yet fall on the remit of the Code of Public Procurement.

Remember that this code applies, by rule, to the execution of the contracts they review

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nature of administrative contract concluded following the training procedures

started after the date of its entry into force, which occurred on July 29, 2008. This means

also that there are contracts that, because they have no administrative nature, can stay out of the

scope of the Code of Public Procurement and fall within the scope of the

Decree-Law n. º32/2003.

If in the contractual domain the mandatory interest payment of moratoriums is

assumed, outside of the contractual domain remains doubt about the mandatory of

payment of moratory interest on the part of the state, which gains particular relief when it is

liable for discussion if the delay in the payment of a compensation due in the frame of

contractual civil liability is liable to be ressarated with the payment of interest

moratoriums.

It is therefore important to adopt a general principle according to which the State, here included all the

public entities, is bound to pay moratory interest when it is delayed in payment

of any amount due to private individuals. Such a principle is valid regardless of the

source of the pecuniary obligation, which can only be relevant for the effect of the rate concretely

applicable.

In the case of Decree-Law n. º32/2003 there are two relevant aspects to be considered:

supplement, the transformation of pure bonds into deadline bonds, predicting the

period of 30 days from which time moratory interest is due; the prohibition of clauses

contractual that, without reason served and justified in the face of the concrete circumstances,

they establish excessive deadlines for payment and exclude or limit liability

by the mora. In the Public Procurement Code is planned for payment to thirty days after the

delivery of the invoices, which must be issued after the maturity of the obligation to which if

refer, and the contract may set time for divers with the limit of sixty days. Findid the deadline

of payment, are due moratory interest. However, it does not establish this degree

any limitation as to the maturity period of the pecuniary obligation, which may

lead to the contractualization of excessive deadlines for the maturity of these obligations.

Inspired by the regime of payment delays in commercial transactions, it matters too

establish as a rule the impossibility of waking contractual clauses in contracts of

administrative nature that, without reason served and justified in the face of circumstances

concrete, establish excessive deadlines for payment and which exclude or limit, from

direct or indirect mode of responsibility for the mora.

The difficulty in finding the applicable legal source as well as the need to extend the

principle of payment of late payment interest advises the adoption of legislative rules

clear.

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By the exposed, in the terms of the applicable legal and regimental provisions, the Deputes and the

Deputies, below signed, present the following draft of the law:

Article 1.

Interest of mora

1. The state and too many public entities are required to pay moratory interest

by the delay in the fulfillment of any pecuniary obligation, regardless of their

source.

2. When another legal provision does not determine the application of diversion fee, it applies to

interest rate referred to in Article 806 (º2) of the Civil Code.

3. The provisions of this Article shall not apply to the tax administration, in the context of the

tax relations, which are governed by own legislation.

Article 2.

Amendment to the Code of Public Procurement

1. It is amended Article 326 of the Code of Public Procurement, approved by the Decree-Law

n. º18/2008 of January 29, which is replaced by the following:

" Article 326.

[...]

1-[...]

2-Are void the contractual clauses that exclude liability for the mora, as well as

the contractual clauses which, without reason served and justified in the face of the circumstances

concrete, limit the responsibility for the mora.

3-[previous n. 2]

4-[previous n. 3]

5-[previous n. 4]

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2. Article 299 of the Code of Public Procurement is added, approved by the Decree-Law

n. º18/2008 of January 29, with the following:

" Article 299.

[Maturity of pecuniary obligations]

1-Are void the contractual clauses that, without reason served and justified in the face of the

concrete circumstances, establish excessive deadlines for the maturity of the obligations

pecuniary.

2-In the case provided for in the preceding paragraph, the clause is for non-writing, and the obligation

considers itself to be won decorated thirty days on the achievement of the characteristic provision

correspective. "

Article 3.

Entry into force

This Law shall come into force on the January 1, 2010.

Assembly of the Republic, November 23, 2009.

The Deputies,