Establishes The Obligation To Pay Interest On Late Payments By The State For Delay In Performance Of Any Financial Obligation

Original Language Title: Estabelece a obrigatoriedade de pagamento de juros de mora pelo Estado pelo atraso no cumprimento de qualquer obrigação pecuniária

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Group Group draft law No. 69/XI Establishes the obligation to pay interest on late payments by the State for delay in performance of any pecuniary obligation explanatory memorandum the late payment of pecuniary obligations is a comprehensive phenomenon and that, admittedly, affects a large number of businesses, creating or exacerbating liquidity problems. Are known cases of companies in serious situations arising almost exclusively of not being paid in a timely manner the amounts due for the provision of goods and services. In a context of lack of liquidity in the market, as is the current, these problems become more acute. Aware of the embarrassment that enterprises, in particular small and medium-sized, suffer on account of late payment, as well as excessive payment periods, Decree-Law No. 32/2003, of 17 February, measures seeking to combat late payment in commercial transactions, transposing to the Portuguese law Directive 2000/No. 35/EC of the European Parliament and of the Council , June 29. This decree-law applies to transactions that give rise to the provision of goods or the provision of services against payment regardless of whether they have been established between legal persons in private or in public. However approved the code of public contracts, by Decree-Law No. 18/2008 of 29 January, which applies to administrative contracts, by which many contracts concluded with public entities were governed by this legislation. In any of these diplomas is provided for the payment of interest on arrears specified period elapses, as happens in diverse special legislation shall continue to apply to contracts not yet fall into the purview of the public procurement code. Remember that this code applies, as a rule, the enforcement of contracts that are 2 nature of administrative contract concluded following training procedures initiated after the date of your entry into force occurred on July 29 2008. This also means that there are contracts that, by not having an administrative nature, may be outside the scope of the public procurement code and fall within the scope of Decree-Law No. 32/2003. If the contractual obligation to pay interest on arrears is taken outside the contractual domain remains the doubt about the obligation to pay interest on arrears on the part of the State, which gets particularly when the subject of discussion if the delay in payment of compensation due in the context of contractual liability is likely to be compensated with the payment of interest on arrears. It is therefore important to adopt a general principle according to which the State, this included all public authorities, is obliged to pay interest on arrears when late in the payment of any amount due to individuals. This principle is valid regardless of the source of the pecuniary obligation, which can only be considered for the purpose of specifically applicable rate. In the case of Decree-Law No. 32/2003 there are two important issues to consider: by default, the transformation of pure obligations in forward obligations, and the period of 30 days from which are payable on arrears; the prohibition of contractual clauses, no reason of consideration and justified with regard to the specific circumstances, excessive periods for payment and exclude or restrict liability for lives. In the public procurement code will I have to pay 30 days after delivery of invoices, which are to be issued after the maturity of the obligation referred to in the contract fix term several with the 60-day limit. Expiry of the time limit for payment, interest on arrears are owed. However, this legislation does not establish any limitations as to the pecuniary obligation maturity, which can lead to excessive deadlines for contractual maturity of these obligations. Inspired by the regime of late payment in commercial transactions, it is also important to establish as a rule the impossibility of waking up contractual clauses in contracts of an administrative nature which, for no reason and justified in the light of the circumstances of consideration, establish deadlines for paying excessive and excluding or limiting, directly or indirectly responsible for lives. The difficulty in finding the legal source applicable as well as the need to extend the principle of the payment of interest advise the adoption of clear legislative rules. 3 therefore, in accordance with the legal provisions and regulations applicable, the Mps and MEPs, undersigned, present the following Bill: article 1 interest 1. The State and other public entities are obliged to pay interest on arrears for delay in performance of any financial obligation, regardless of your source. 2. When another legislative provision does not prescribe the application of different rate, applies the interest rate referred to in paragraph 2 of article 806.º of the Civil Code. 3. The provisions of this article shall not apply to the tax authority in the context of tax relations, which are governed by their own laws.

Article 2 amendment to the public procurement code 1. Changes the article 326 of the code of public contracts, approved by Decree-Law No. 18/2008, of 29 January, which is replaced by the following: "Article 326 [...] 1-[...] 2-Are void contractual clauses that exclude responsibility for lives as well as the contractual clauses, no reason of consideration and justified with regard to the specific circumstances, limited responsibility for lives. 3-[previous paragraph 2] 4-[previous paragraph 3] 5-[previous paragraph 4] 4 2. Article 299 shall be of the public procurement code, approved by Decree-Law No. 18/2008, of 29 January, with the following wording: "the article 299 [pecuniary obligations Maturity] 1-contractual clauses are null, no reason of consideration and justified with regard to the specific circumstances, establish deadlines for excessive maturity cash obligations. 2-in the case referred to in the preceding paragraph, the clause has not written, and the obligation is considered expired after 30 days on the implementation of the provision correspectiva feature. "

Article 3 entry into force this law enters into force on 1 January 2010.

Assembly of the Republic, 23 November 2009.