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Law No. 72 Of March 28, 2013

Original Language Title:  LEGE nr. 72 din 28 martie 2013

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LEGE no. 72 72 of 28 March 2013 (* updated *) on measures to combat delay in the execution of payment obligations of sums of money resulting from contracts concluded between professionals and between them and contracting authorities ((updated on 18 December 2015 *)
ISSUER PARLIAMENT




---------- In order to promote the competitiveness of the business environment and to strengthen the functionality of the Romanian market, as an integral part of the internal market of the European Union, it is necessary to create effective mechanisms to combat the execution of payment obligations resulting from contracts between professionals and between them and contracting authorities, for the purpose of transposition Directive 2011 /7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, hereinafter referred to as the Directive, The Romanian Parliament adopts this law + Chapter I General provisions + Article 1 Scope of application (1) This law applies to certain, liquid and chargeable claims, consisting of obligations to pay money resulting from a contract concluded between professionals or between them and a contracting authority, the contract having as its object supply of goods or services, including the design and execution of public works, buildings and civil engineering works. (2) Not included in the scope of this Law: a) the claims registered at the credit table in an insolvency proceedings and the claims subject to an ad hoc mandate, a preventive arrangement or a settlement concluded as a result of an extra-judicial negotiation to restructure the debts of a companies; b) contracts concluded between professionals and consumers. + Article 2 Definitions For the purposes of this Law, the expressions and terms below shall read as follows: 1. contracting authority: a) any public authority of the Romanian state, acting at central, regional or local level; b) any body governed by public law, other than that referred to in point a), with legal personality, which was established to meet needs of general interest, without profit, and which is in at least one of the following situations: ((i) is financed, in the majority, by a contracting authority, as defined in lett. a), or by another body governed by public law; ((ii) it is subordinated to or is subject to the control of a contracting authority, as defined in point (a). a), or to another body governed by public law; ((iii) in the composition of the board of directors or, as the case may be, of the supervisory board and the directorate, more than half of the members shall be appointed by a contracting authority, as defined in lett. a), or by another body governed by public law; c) any association formed by one or more contracting authorities among those referred to in lett. a) or b); 2. professional-any natural or legal person who operates a profit-making enterprise; 3. delay in the execution of payment obligations of certain amounts of money-failure to make payment at the deadline set by contract or by law, under the conditions of art. 3 3 para. ((1) and of art. 8 8 para. ((1); 4. amount due-amount that should have been paid within the contractual or legal term of payment and other amounts mentioned in the invoice or in the equivalent payment application. + Chapter II Contracts between professionals + Article 3 Interest determination (. In relations between professionals, the claim consisting of the price of the goods delivered or the tariff of the services rendered shall produce penalty interest if: a) the creditor, including its subcontractors, have fulfilled their contractual obligations; b) the creditor did not receive the amount due at maturity, unless the debtor is not attributable to the delay. ((2) The penalty interest flows from the maturity until payment, under the conditions of the provisions art. 1.535 1.535 of Law no. 287/2009 on the Civil Code, republished, as amended. (3) If the payment period has not been stipulated in the contract, the penalty interest shall flow from the following deadlines: a) after 30 calendar days from the date of receipt by the debtor of the invoice or any other such equivalent request for payment; b) if the date of receipt of the invoice or an equivalent payment request is uncertain or prior to the receipt of the goods or services, after 30 calendar days from the reception of the goods or the provision of the services; c) if the law or contract establishes a reception or verification procedure, allowing the certification of the conformity of goods or services, and the debtor received the invoice or the equivalent request for payment at the date of reception or verification or prior to this date, after 30 calendar days from this date. (4) The procedure of reception or verification provided in par. ((3) lit. c) may not exceed 30 calendar days from the date of reception of the goods or services. By way of exception, the parties may stipulate in the contract a term of more than 30 calendar days, subject to this clause not being abusive, according to art. 12. + Article 4 Legal interest penalty If the parties have not set the interest rate for late payment, the penalty legal interest will be applied, calculated according to art. 3 of Government Ordinance no. 13/2011 on remuneration and penalties for monetary obligations, as well as for the regulation of financial and fiscal measures in the banking field, approved by Law no. 43/2012 . The reference rate of legal interest in force on the first calendar day of the semester shall apply for the entire semester. + Article 5 Contractual term of payment (. In the relationship between professionals, the payment period may not be more than 60 calendar days. By exception, the parties may stipulate in the contract a higher payment deadline, subject to this clause not being abusive, according to art. 12. (2) The parties may agree to make the payment in a staggered manner, in this case, the penalty interest and the other compensation provided by this law shall be calculated by reference to the maturity amount. (3) The parties may not agree on the date of issue/receipt of the invoice. Any clause stipulating a term of issue/receipt of the invoice shall be struck by absolute nullity. + Chapter III Contracts between professionals and contracting authorities + Article 6 Legal payment term (. The contracting authorities shall execute the obligation to pay the amounts of money resulting from contracts concluded with professionals at the latest at: a) 30 calendar days from the date of receipt of the invoice or any other equivalent payment request; b) 30 calendar days from the date of reception of the goods or the provision of services, if the date of receipt of the invoice or an equivalent request for payment is uncertain or prior to the reception of the goods or services; c) 30 calendar days from the reception or verification, whether by law or by contract a reception or verification procedure is established for the certification of conformity of goods or services, and the contracting authority has received invoice or equivalent request for payment at the date of reception or verification or prior to this date. (2) The procedure of reception or verification provided in par. ((1) lit. c) may not exceed 30 calendar days from the date of receipt of the goods or services. By way of exception, in cases objectively justified by the nature or characteristics of the contract, the reception or verification procedure may have a duration of more than 30 calendar days, if expressly set out in the contract and in the documentation the acquisition of both the reception period and the objective reasons, provided that this clause is not abusive, within the meaning of art. 12. (3) The parties may not agree on the date of issue/receipt of the invoice. Any clause stipulating a term of issue/receipt of the invoice shall be struck by absolute nullity. (4) In the case of public health institutions and public entities providing health care services, the legal term of payment for money obligations resulting from contracts concluded with professionals shall be no more than 60 calendar days, which are calculated according to the provisions of par. ((1). + Article 7 Contractual term of payment (1) The payment terms set out in the contract for the performance of the obligations of the contracting authorities may not be higher than the deadlines established according to 6 6 para. ((1). Exceptionally, the parties may stipulate a payment period of not more than 60 calendar days, if it is expressly established in the contract and in the procurement documentation and is objectively justified, taking into account the nature or characteristics specific of the contract, subject to this clause not being abusive, within the meaning of art. 12. (2) Provisions art. 5 5 para. (2), relating to staggered payments, shall apply accordingly. + Article 8 Penalty interest (1) In the relations between the contracting authorities and the professionals, the payment claim consisting of the price of the goods delivered or the tariff of the services provided produces penalty interest if the conditions laid down in art. 3 3 para. ((1). (2) The penalty interest for late payment flows from the term stipulated in the contract or, if it was not stipulated in the contract, from the expiry of the deadlines provided for in art. 6 6 para. (1), under the provisions of art. 1.535 1.535 of Law no. 287/2009 , republished, as amended. Art. 4 4 shall apply accordingly. + Chapter IV Recovery costs of the claim + Article 9 Expenditure on recovery of the claim The creditor may claim damages for all expenses made for the recovery of the claim, under the conditions of non-execution of the payment obligation by the debtor on time. + Article 10 Minimal damage-interests ((1) Without prejudice to the rights provided for in art. 9, if the conditions of late payment are met, the creditor can claim the debtor to pay the value in lei at the date of payment of the amount of 40 euros, representing minimal additional damages. (2) The obligation to pay the amount provided in par. (1) is due from the date on which the penalty interest flows, according to the provisions of art. 3 3 para. ((2) and (3) or, as the case may be, of art. 8 8 para. ((2). (3) The amount provided in par. ((1) is additional to the expenses related to an eventual enforcement procedure. + Article 11 Contracts with advances In case of granting advances by the contracting authority, according to the law, the provisions of art. 8 8-10 shall apply for the difference between payment obligations and advances granted. + Chapter V Contract terms and abusive practices + Article 12 Notions The practice or the contractual clause by which it is established manifestly unfair, in relation to the creditor, the payment term, the level of interest for late payment or additional damages is considered to be abusive. + Article 13 Qualification of clauses and abusive practices In determining the abusive nature of a clause or practice, the court shall take into account all the circumstances of the case, in particular: a) serious deviations from the established practices between the parties or from the usages in accordance with public order or good morals; b) non-compliance with the principle of good faith and principles of diligence in the performance of obligations; c) nature of goods or services; d) failure to provide for objective reasons for derogation from payment periods or from the interest rate, according to this law; e) the co-contractor's dominant position in relation to a small or medium-sized enterprise. + Article 14 Clauses qualified by law as abusive They are qualified as abusive, and it is not necessary to verify the existence of the circumstances 13 13 or other circumstances specific to the case, the contractual clauses which: a) exclude the possibility of applying penalty interest or set interest rates lower than the penalty legal interest; b) fix an obligation of formal notice to operate the flow of interest; c) provide for a higher term from which the claim produces interest rates than that provided in art. 3 3 para. (3) or, as the case may be, art. 6 6 and art. 7 7 para. ((1); d) fix, in the contracts between professionals and contracting authorities, a payment term higher than that provided in art. 7 7 para. ((1); e) eliminate the possibility of payment of additional damages; f) set a deadline for issuing/receiving the invoice. + Article 15 Sanctions (1) Unfair clauses are struck by absolute nullity. (2) The property liability for damages caused by unfair terms and practices is attracted according to the provisions Law no. 287/2009 , republished, as amended. + Chapter VI Procedural provisions + Article 16 Payment order If the debtor is late in making the payment, the creditor may obtain an enforceable title through the payment order procedure, provided for by the provisions art. 1.013-1.024 of Title IX of Law no. 134/2010 on the Code of Civil Procedure, republished, with subsequent amendments and completions. + Article 17 Equal treatment Provisions art. 1.013-1.024 1.013-1.024 of Law no. 134/2010 , republished, with subsequent amendments and completions, shall apply, under the same conditions, to all creditors established in the European Union. + Chapter VII Organizational framework of non-governmental organizations of professionals + Article 18 Role of employers ' organisations (1) The representative employers ' organizations, according to the law, and their members shall observe the rights conferred by this law. (2) Public authorities shall collaborate with the employers ' organizations representative of the promotion of the rights conferred by this law. + Article 19 Rights Representative employers ' organizations, according to the law, have the following rights a) to be consulted, on the occasion of the elaboration of draft normative acts in the field of public procurement and normative acts aimed at encouraging the contractual discipline; b) to bring legal action to defend the rights and legitimate interests of their members, in particular actions in the annulment of abusive clauses and the finding of abusive practices; c) to inform public opinion, through the media, of the abusive practices and clauses identified; d) to develop, alone or in collaboration with public institutions, codes to promote the contractual discipline, to develop the use of the term payment; e) to organize, alone or in collaboration with public institutions, campaigns to inform the business environment of the rights and obligations established by this Law and on judicial remedies for the protection of the rights provided by present law. + Chapter VIII Completion of some incident normative acts + Article 20 After paragraph 2 of Article 3 of the Government Ordinance no. 13/2011 on remuneration and penalties for monetary obligations, as well as for the regulation of financial and fiscal measures in the banking field, published in the Official Gazette of Romania, Part I, no. 607 607 of 29 August 2011, approved by Law no. 43/2012 , a new paragraph (2 ^ 1) is inserted, with the following contents: " (2 ^ 1) In the relations between professionals and between them and the contracting authorities, the penalty legal interest shall be determined at the level of the reference interest rate plus 8 percentage points. ' + Chapter IX Transitional and final provisions + Article 21 The provisions of this Law, except for the provisions of 15 15, are not applicable to the obligations to pay money resulting from contracts concluded between professionals and between them and contracting authorities before the date of entry into force of this law. + Article 22 The professional term provided for art. 3 3 para. (2 ^ 1) of Government Ordinance no. 13/2011 , approved by Law no. 43/2012 , with the additions made by this law, will have the meaning provided in art. 2 2 section 2 2 of this law. + Article 23 Within 60 days from the date of entry into force of this Law, the Ministry of Justice informs the European Commission of Romania's option to make use of the provisions of art. 4 4 para. ((4) lit. b) of Directive 2011 /7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions. + Article 24 The date of entry into force of this Law shall be repealed: a) art. 1.017 1.017 para. ((2) 1 1 and 2 of Law no. 134/2010 on the Code of Civil Procedure, republished in the Official Gazette of Romania, Part I, no. 545 of 3 August 2012, with subsequent amendments and completions; b) any other provisions to the contrary. * This law transposes Directive 2011 /7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, published in the Official Journal of the European Union, L series, no. 48 48 of 23 February 2011. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished.
CHAMBER OF DEPUTIES PRESIDENT
VALERIU-STEFAN ZGONEA
SENATE PRESIDENT
GEORGE-CRIN LAURENȚIU ANTONESCU Bucharest, 28 March 2013. No. 72. -------