JUAN CARLOS I King of Spain to all that the present join together and act.
Know: That the Cortes Generales have approved and I come in to sanction the following law.
PREAMBLE the law 3/2004, of 29 December, which establish measures of combating late payment in commercial operations, incorporated into our domestic law the Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000, which establishing measures against late payments in commercial transactions.
Five years after the entry into force of the law 3/2004 late payment in commercial transactions, this legislation must adapt to the changes that have occurred in the economic environment and modify it to be widely applicable, both in the field of Spanish companies and in the public sector.
The effects of the economic crisis have resulted in an increase of defaults, delays and extensions in the liquidation of overdue invoices, which is affecting all sectors. In particular, it is affecting small and medium-sized enterprises, which work with heavy dependence on short-term credit and some cash limitations that make specially difficult their activity in the current economic context.
With this aim, it is particularly important in the present law, suppress the possibility of "Covenant between the parties", which often could significantly lengthen payment periods, being generally SMEs companies hardest.
The reform aims to correct imbalances and take advantage of the conditions of our companies in order to promote competitiveness and achieve a balanced growth of the Spanish economy, which will allow us to create jobs stably, in line with a strategic vision of the sustainable economy.
In this sense, and from the point of view of the terms of payment of the public sector, is reduced to a maximum of thirty days the time limit for payment, which shall apply from 1 January 2013, following a transitional period for its entry into force. On the other hand, aims to an agile and effective procedure to enforce the debts of public authorities and transparency mechanisms are established in terms of fulfillment of payment obligations, through periodic reports at all levels of the Administration and the establishment of a new register of invoices in local administrations.
What refers to the terms of payment between companies, sets a maximum term of payment of 60 days from companies for payments to suppliers. This payment period may not be extended by agreement between the parties, in order to avoid possible abusive practices of large companies over small suppliers, giving rise to unjustified increases in the payment term. This effect sets a transitional timetable which will culminate on January 1, 2013. On the other hand, reinforces the right to receive compensation, expands the ability of associations to denounce abusive practices on behalf of its partners and the adoption of codes of good practice is promoted on payments.
The terms of payment set out in this law conform with provisions of the European directive. The general regime laid down in paragraph 1 of article 3 of the same applies to payments made by public administrations, as well as of food products fresh and perishable, whereas is set to 60 days the period of payment of commercial transactions between companies in accordance with paragraph 2 of the same article, with the aim of cutting high delays in payments in basic sectors.
The first article. Modification of law 3/2004, of 29 December, which establish measures of combating late payment in commercial operations.
One. Amending article 2 which happens to have the following wording: «article 2. Definitions.
To purposes regulated by this law, shall be considered as: a) company, to any natural or legal person acting in the exercise of its independent economic or professional activity.
(b) Administration, bodies, agencies and entities that form part of the public sector, in accordance with article 3.3 of the law 30/2007 of 30 October, Public Sector contracts.
(c) non-performing loans, breach of legal or contractual payment periods.
«(d) term of payment, shall refer to all the days of the year, and they are void and shall be taken by not put the covenants that excluded from the computation considered holiday periods.»
Two. Amending article 3, which happens to have the following wording: «article 3. Scope of application.
1. this law shall apply to all payments made as consideration in commercial operations between companies or between companies and the Administration, in accordance with the provisions of law 30/2007, of October 30, of Public Sector contracts, as well as those made between main contractors and their suppliers and subcontractors.
2 are outside the scope of this law: to) payments in commercial transactions involving consumers.
(b) the interests related to the legislation on cheques, promissory notes and bills of Exchange and the payment of compensation for damages, including payments by insurance companies.
(c) the debts subject to bankruptcy proceedings against the debtor, which shall be governed by the provisions of special legislation.»
3. Amending article 4 which happens to have the following wording: «article 4. Determination of the term of payment.
1 the term of payment, the debtor must meet will be as follows: a) sixty days after the date of receipt of the goods or provision of services. This payment period may not be extended by agreement between the parties.
b) if the debtor receives the invoice or the equivalent payment request before the goods or services, sixty days after delivery of the goods or the provision of services.
(c) if legally or in the contract it has arranged a procedure of acceptance or verification whereby must verify the conformity of the goods or services pursuant to the contract and if the debtor receives the invoice before the end of the period for such acceptance, the term of payment, the debtor must meet will be calculated from the day of receipt of the goods or services purchased and may not be extended more than sixty days from the date of delivery of the goods.
2. providers must get an invoice or request for payment equal to their customers before they met 30 days from effective goods receipt or provision of services.
3. the receipt of the invoice by electronic means will produce the effects of home of the computation of the term of payment, provided that the identity and authenticity of the signer and the integrity of the invoice receipt by the person concerned is guaranteed.
4 may group together invoices over a period not exceeding 15 days, by means of an invoice comprehensive of all deliveries carried out in this period, Bill abstract periodical, or by grouping them into a single document to facilitate the management of your payment, periodic invoices grouping, and which always take as starting date of the computation of the period the date corresponding to half of the period of the invoice summary periodic or periodic grouping of invoices concerned, as the case may be, and the term of payment does not exceed 60 days from that date."
Four. Amending article 8 which happens to have the following wording: «article 8. Compensation for recovery costs.
1. when the debtor incurs in mora, the creditor shall be entitled to claim compensation from the debtor for all duly accredited collection costs which has suffered because of the mora this. The determination of these collection costs shall apply the principles of transparency and proportionality with respect to the principal debt. The compensation shall not exceed, in any case, 15 per cent of the amount of the debt, except in cases where the debt does not exceed the 30,000 euros in which the limit of compensation shall consist of the amount of the debt in question.
2. the debtor shall not be required to pay the compensation established in the previous paragraph where it is not responsible for the delay in the payment.»
5. Amending article 9 which happens to have the following wording: «article 9. Unfair terms.
1 shall be null and void clauses agreed between the parties on the date of payment or the consequences of the delay that differ in terms of the time limit for payment and the legal interest rate established delay subsidiarily of article 4 paragraph 1 and in paragraph 2 of article 7 respectively, as well as the clauses that are contrary to the requirements to demand interest of article 6 When are abusive to the detriment of the creditor, considered all the circumstances of the case, including the nature of the product or service, the provision by the debtor of additional guarantees and the common usage of trade. Not be considered routine use of trade the repeated practice of abusive terms. To determine if a clause is abusive to the creditor, will take into account, among other factors, if the debtor has any objective reason to depart from the term of payment and the legal type delay interest provisions in article 4.1 and article 7(2) respectively. Also, determine whether a clause is abusive shall be given into account, considering all the circumstances of the case, if this clause is used mainly to provide the debtor additional liquidity at the expense of the creditor, or if the main contractor imposes on its suppliers or subcontractors terms of payment which are not justified on the basis of the conditions that he himself will be beneficiary or for other reasons objective.
2. the judge declaring the invalidity of such unfair terms will integrate the contract pursuant to the provisions of article 1.258 of the Civil Code and will have powers moderators with respect to the rights and obligations of the parties and of the consequences of its ineffectiveness.
3 shall also be void unfair terms contained in the General conditions of recruitment as provided for in paragraph 1.
4 actions of cessation and retraction in the use of the terms referred to in the preceding paragraph may be exercised according to law 7/1998 of 13 April, on general conditions of the contract, by the following entities: to) associations, federations of associations and corporations, entrepreneurs, professionals, self-employed workers and farmers who have articles of Association entrusted the defense of the interests of its members.
b) the official Chambers of Commerce, industry and navigation.
(c) legally constituted professional associations.
These entities may appear in person, on behalf of its partners, the courts or competent administrative bodies to apply for the non-application of such provisions or practices, in the terms and with the effects provided by mercantile and commercial national legislation. Complaints made by these entities before the competition authorities will be confidential under the terms of law 15/2007, 3 July, of the competition.»
6. A new paragraph 5 to article 9, the following wording is added: ' 5. without prejudice to the provisions of the preceding paragraph, the entities referred to in that paragraph may also appear in person in the courts or competent administrative bodies and assume the exercise of collective action of cessation and retraction in defence of the interests of its partners to companies complying with character typical of the payment periods referred to in this law» «, in the contracts that are not included in the scope of the law 7/1998 of 13 April, on general contractual conditions.»
7. Article 11 with the following wording is added: 'article 11. Transparency in good business practices.
In order to ensure full transparency in the exercise of the rights and the fulfilment of the obligations laid down in this law, public administrations shall promote the development of codes of good business practices, as well as the adoption of systems of resolving conflicts through mediation and arbitration, being voluntary affiliation by economic agents.»
Second article. Monitoring of the evolution of late and results of the effectiveness of the law.
In the framework of advisory, technical instruments and sectoral participation available to the Ministry of industry, tourism and trade to carry out the analysis and evolution of the activities of different economic sectors, will be a specific follow-up of the evolution of the terms of payment and late payment in commercial transactions as well as of the results of the practice and effectiveness of this law with the participation of national and regional sectoral associations as well as the multisectoral platform against delinquency. With annual periodicity, the Government shall forward a report to the Cortes Generales on the situation of the terms of payment that allows you to analyze the effectiveness of this law. This report will be also published on the website of the Ministry of industry, tourism and trade.
Third article. Modification of the law 30/2007 of 30 October, Public Sector contracts.
One. Amending section 4 of article 200 of the law of contracts from the Public Sector which happens to have the following wording: «4. the administration shall be obliged to pay the price within the thirty days following the date of the issuance of certifications of works or documents evidencing the total or partial realization of the contract» , without prejudice to the special period specified in article 205.4, and, if it is deferred, payable to the contractor, from the fulfillment of the period of thirty days, the interests of delay and compensation for the costs of collection in the terms provided in the law 3/2004, of 29 December, which establish measures of combating late payments in commercial transactions. When appropriate the issuance of certification of work and the date of receipt of the invoice or request for payment equal pay to doubt either prior to the receipt of goods or the provision of services, within thirty days will be counted from the date of receipt or delivery.»
Two. Added a new article 200 bis with the following wording: «article 200 bis.» Procedure to give effect to the debts of the public administrations.
Once the period referred to in article 200.4 of this law, contractors can claim in writing to the contracting administration the fulfilment of the obligation of payment and, where applicable, interest. If, after the period of one month, the Administration had not answered, shall be recognized the expiration of the term of payment and those interested can formulate a contentious-administrative appeal against the inactivity of the Administration, which may request for precautionary measure the immediate payment of the debt. The Court shall adopt the measure precautionary measures, unless the Administration shows that do not concur the circumstances that justify the payment or that the amount claimed does not meet which is enforceable, in which case the measure precautionary measures shall be limited to the latter. The ruling will condemn costs administration sued in the case of estimated total claim fee.»
3. Add a new transitional provision eighth with the following wording: «eighth transitory provision. Time limits referred to in article 200 of the law.
Within thirty days that referred to in paragraph 4 of article 200 of this Act, in the wording given by the third article of the law on modification of the law 3/2004, of 29 December, which establish measures of combating late payments in commercial transactions, shall apply from 1 January 2013.
Since the entry into force of this provision and on December 31, 2010 period in which authorities have the obligation to pay the price of the obligations referred to in paragraph 4 of article 200 shall be within fifty-five days of the date of the issuance of certifications of works or documents evidencing the total or partial realization of the contract.
Between January 1, 2011 and December 31, 2011, the deadline in which authorities have the obligation to pay the price of the obligations referred to in paragraph 4 of article 200 will be within fifty days following the date of the issuance of certifications of work or of the corresponding documents certifying the total or partial realization of the contract.
Between 1 January 2012 and 31 December 2012, the period in which authorities have the obligation to pay the price of the obligations referred to in paragraph 4 of article 200 shall be within forty days of the date of the issuance of certifications of work or of the corresponding documents certifying the total or partial realization of the contract'
Fourth article. Late payment of public administrations.
1. the Auditor-General of the State on a quarterly basis shall prepare a report on compliance with the deadlines provided for in this Act for the payment of the obligations of the General Administration of the State, which will necessarily include the number and overall amount of outstanding obligations in which is is in breach of the term.
2. the autonomous communities shall establish their own system of quarterly public information on compliance with the deadlines for payment under this Act.
3. the treasurers or, failing that, auditors of local corporations develop quarterly a report on compliance with the deadlines provided for in this Act for the payment of the obligations of each local authority, which will necessarily include the number and overall amount of outstanding obligations in which is is in breach of the term.
4. without prejudice to its possible presentation and debate in the plenary of the local Corporation, this report should be referred, in any case, the competent bodies of the Ministry of economy and finance and, in their respective territorial scope, to the of the autonomous communities which, in accordance with their respective statutes of autonomy, have attributed the financial supervision of the local authorities. Such bodies may also require the remission of the aforementioned reports.
5. the information thus obtained may be used by recipient Governments for the preparation of a periodic report and public on compliance with the deadlines for payment by public administrations.
Fifth article. Registration of invoices in local administrations.
1. the local authority will have a record of all the invoices and other documents issued by contractors for the purpose of justifying the benefits made by them, whose management shall correspond to the intervention or organ of the local entity that has assigned the function of accounting.
2. any invoice or supporting document issued by the contractor in charge of the local authority, must be entered in the register referred to in the preceding paragraph prior to its referral to the body responsible for the economic obligation.
3 after a month from the annotation in the register of the invoice or supporting document unless the managing body has proceeded to arrange the appropriate record of recognition of the obligation, arising from the adoption of the respective certification of work or administrative act in accordance with the provision made, intervention or the body of the local authority that has assigned the function of accounting require that managing body so justify in writing the lack processing of the file.
4. the intervention or organ of the local entity that has assigned the function of accounting be incorporated in the quarterly report to the House regulated in the previous article, a list of invoices or supporting documents with respect to which after more than three months from their entry in the register and the corresponding records of recognition have not been processed or has been justified by the managing body the absence of processing of the same. Plenary, within the period of 15 days counted from the day of the meeting which is aware of such information, shall publish an aggregated report of the relationship of invoices and documents that have been submitted by grouping them according to their State of processing.
First additional provision. Special regime for agri-food products.
1 fresh and perishable food products payment deferrals shall not exceed in any case 30 days from the date of delivery of the goods.
Means fresh and perishable food products due to its natural characteristics retain their qualities suitable for marketing and consumption during a period of less than thirty days or that require regulated temperatures of marketing and transportation.
2. with respect to food products that are not fresh or perishable repayments shall not exceed in any case 60 days from the date of delivery of the goods.
3. recipients of the corresponding deliverables will be required to document, in the same Act, the operation of delivery and reception with express mention of the date.
Similarly, providers should indicate on your invoice the calendar day in which should be payment.
The invoices must be sent until they met thirty days from the date of delivery and receipt of goods.
Second additional provision. Distribution of books.
The Government, by regulation, may determine a special system of payments for the book sector taking into account the special circumstances of the sector in relation to the cycles of exploitation, the rotation of stocks and the specific scheme of deposit books.
Third additional provision. Duty of information.
Societies must express publish information about terms of payment to their suppliers in the notes on their accounts.
The Institute of accounting and audit of accounts shall rule on timely information to incorporate into the memory of annual accounts for enterprises so that, from the corresponding to the fiscal year 2010, the accounting audit contains information which if effected payment deferrals are within the limits indicated in this law.
Fourth additional provision. New line of credit ICO-default local entities.
The Government, within the period of 30 days, through the Instituto de crédito Oficial, establish a direct credit, preferential, addressed to local authorities to facilitate payment of the firm and unpaid debts to companies and self-employed prior to April 30, 2010.
The credit line will be cancelled and will satisfy, case-by-case basis, provided that it has not been amortized prior, in a term entered into subsequent to the entry into force of the future reform of the system of financing of local authorities and will be instrumented with independence to the proceeds from the foot and tied to the obligations recognized the private sector providers.
First transitional provision. Application to contracts.
This law shall apply to all contracts concluded after its entry into force.
Second transitional provision. Timetable referred to in article 1 paragraph 3.
The time limits referred to in paragraph 3 of article 1 of this law, corresponding to article 4 of law 3/2004, of 29 December, which establish measures of combating late payments in commercial transactions, and the sole additional provision on the special regime for agri-food products, in relation to food products that are not fresh or perishable products will they be adjusted gradually, for those companies which come agreeing higher terms of payment, in accordance with the following timetable:-from the entry into force of this law until December 31, 2011, will be 85 days.
-Between 1 January 2012 and December 31, 2012, will be 75 days.
-Starting from January 1, 2013, will be 60 days.
Provisions of this transitional provision shall not apply to fresh and perishable, food products for which the period for payment within 30 days will have immediate effects.
Third transitional provision. Maximum terms of payment in the contracts of work with the public administrations.
Construction companies of civil works that maintain living contracts of work with the different public administrations, on an exceptional basis, and for two years counting from the date of entry into force of this law, may agree with their suppliers and/or subcontractors to the following maximum terms of payment, in accordance with the following timetable for implementation:-120 days from the entry into force of the law until December 31, 2011.
-90 days from January 1, 2012 to December 31, 2012.
-60 days from January 1, 2013 to December 31, 2013.
Without that may exist agreements between the parties above these terms and dates.
Sole repeal provision.
All the rules of equal or lower rank are hereby repealed in which contradict or oppose this law, with the exception of those which, in relation to the determination of the period for payment, may be more beneficial for the creditor.
Sole final provision. Entry into force.
This law shall enter into force the day following its publication in the "Official Gazette".
Therefore, command to all Spaniards, private individuals and authorities, which have and will keep this law.
Madrid, July 5, 2010.
JUAN CARLOS R.
The President of the Government, JOSÉ LUIS RODRÍGUEZ ZAPATERO