JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following law.

EXPLANATORY STATEMENT

This law is intended to incorporate into national law Directive 2000 /35/EC of the European Parliament and of the Council of 29 June 2000 laying down measures to combat late payment commercial.

Over the past decade, the European Union has been paying increasing attention to the problems of excessively large payment deadlines and late payment of contractual debts, due to the deterioration of the debt burden. profitability of companies, producing particularly negative effects on small and medium-sized enterprises. In addition, the disparities between Member States in respect of payments legislation and practices constitute an obstacle to the smooth functioning of the internal market.

There are many European Union initiatives developed on this subject, including the Commission Recommendation of 12 May 1995 on payment deadlines in commercial transactions. As there has been no improvement in late payment since the adoption of this recommendation, Directive 2000 /35/EC has become necessary.

The general objective of this directive is to promote greater transparency in the determination of payment deadlines in commercial transactions, and also their compliance. To this end, the Directive comprises a set of measures designed, on the one hand, to prevent excessively long payment periods from being used to provide the debtor with additional liquidity at the expense of the creditor and, on the other, to deter delays in payments, eradicating the causes for which late payment may be economically advantageous for debtors.

The scope of this directive is limited to payments made as a consideration in commercial transactions between companies and between companies and the public sector. It does not regulate transactions involving consumers, interest related to other payments such as those made under the legislation on cheques and bills of exchange and no compensation payments for damages.

The subjective and material criterion that delimits the scope of Directive 2000 /35/EC advises that it be transposed into our legal order by means of a special law regulating the substantive measures against the late, and which, in a final provision, amends the recast text of the Law on Public Administrations Contracts, approved by the Royal Legislative Decree 2/2000 of 16 June.

The substantive measures against the late payment that this Law regulates consist in establishing, in general, a period of interest on late payment, determining the automatic accrual, indicating the interest rate of late payment and to grant the creditor the right to claim reasonable compensation from the debtor for the costs of recovery. Added to these measures is the possibility of agreeing on domain reservation clauses for the purpose of the seller retaining ownership of the goods until the total payment of the debt.

The new law introduces an essential change in this area, such as the shift to trade uses which have been devoted to excessively long payment periods, which would be replaced by the provisions of the This Law. Where the law refers to the fact that the judge may consider the uses of trade as an objective assessment element in determining the possible abusive nature of a contractual clause, it takes this end only as a factual and factual information. objective that allows to compare the performance of an operator with the situation of the merchant traffic at every moment.

The time limit for the liability of the debt and the determination of the interest rate of late payment established in the law are applicable in the absence of a pact between the parties. However, the freedom to contract must not be used as unfair practices by imposing clauses relating to longer payment periods or lower interest rates than those provided for in this Law, and the judge may therefore be able to amend these agreements if, If the circumstances of the case are assessed, they will be abusive to the creditor. In this respect, it may be considered a factor constituting such abuse that the agreement mainly serves to provide the debtor with additional liquidity at the expense of the creditor or for the main contractor to impose on its suppliers or sub-contractors for payment terms which are not justified on the basis of the obligations which they assume. It is precisely this regulation of unfair terms that has determined the need to give a new wording to Article 17 (3) of Law 7/1996 of 15 January, on the Management of Retail Trade, in order to adjust payments to suppliers to the provisions of this Law. Also, the Law regulates collective action to prevent the use of these clauses when they have been drafted for general use.

The adequacy of our internal legislation on public procurement to the Community legal order is contained in the recast text of the Law on Contracts of Public Administrations, approved by the Royal Decree Legislative 2/2000 of 16 June. The inclusion of public administrations in the field of Directive 2000 /35/EC, with the same treatment of all operators in the field of payments for commercial transactions, makes it necessary to amend the regulation of the type of interest for late payment and the introduction of the recognition of the creditor's right to compensation for debt recovery costs, in order to meet the requirements of the Community standard. Equal adequacy requires the regulatory arrangements for payments between contractors and subcontractors and suppliers. To these ends, the final provision of this Law is answered.

The Law is dictated by the powers that the Spanish Constitution attributes to the State in Article 149.1.6. and 8. the Law is related to commercial and civil legislation. However, the final provision of this Law is issued under Article 149.1.18. It gives the State the basic legislation on Public Administration Contracts.

Article 1. Object.

This law aims to combat late payment of money debts and abuse, to the detriment of the creditor, in the fixing of payment periods in commercial transactions that give rise to the delivery of goods or to the the provision of services between undertakings or between undertakings and the Administration.

Article 2. Definitions.

For the purposes regulated in this Law, it will be considered as:

(a) Company, any natural or legal person acting in the exercise of its independent economic or professional activity.

(b) Administration, to the public authorities, bodies and entities provided for in Article 1 (2) and (3) of the recast of the Law on Public Administrations, approved by the Royal Decree Legislative 2/2000 of 16 June.

c) Delinquency, non-compliance with contractual or legal payment deadlines.

Article 3. Scope of application.

1. This Law shall apply to all payments made as a consideration in commercial transactions between undertakings, or between undertakings and the Administration, in accordance with the provisions of the recast of the Law on Contracts Public administrations, as well as those made between the main contractors and their suppliers and subcontractors.

2. They fall outside the scope of this Law:

(a) Payments made in commercial transactions involving consumers.

(b) Interest related to the legislation on cheques, notes and bills of exchange and payments for damages, including payments by insurance entities.

(c) Debts subject to insolvency proceedings against the debtor, which shall be governed by the provisions of their special legislation.

Article 4. Determination of the payment deadline.

1. The payment period to be paid by the debtor shall be that which would have been agreed between the parties within the applicable legal framework and, failing that, that established in accordance with the provisions of the following paragraph.

2. The payment period, in the absence of a pact between the parties, shall be as follows:

a) Thirty days after the date the debtor has received the invoice or an equivalent payment request.

(b) If the date of receipt of the invoice or the equivalent payment request is in doubt, thirty days after the date of receipt of the goods or the provision of the services.

(c) If the debtor receives the invoice or the equivalent payment request before the goods or services, thirty days after the delivery of the goods or the provision of the services.

(d) If legally or in the contract a procedure of acceptance or verification has been provided by which the conformity of the goods or services with the provisions of the contract is to be verified and if the debtor receives the invoice or the equivalent request for payment before or on the date on which such acceptance or verification takes place, thirty days after the latter date.

Article 5. Accrual of interest on late payment.

The obligation to pay the debt incurred as a consideration in commercial transactions will incur arrears and must pay the interest agreed in the contract or the one set by this Law automatically for the mere non-compliance the payment within the agreed or legally established period, without the need for a notice of expiration or any intimation by the creditor.

Article 6. Requirements for the creditor to be able to require interest on late payment.

The creditor shall be entitled to default interest when the following requirements are met simultaneously:

a) That you have fulfilled your contractual and legal obligations.

b) That you have not received the amount due in time unless the debtor can prove that you are not responsible for the delay.

Article 7. Interest on delay.

1. The default interest to be paid by the debtor shall be that which is the result of the contract and, in the absence of a covenant, the legal type set out in the following paragraph.

2. The legal rate of interest for late payment which the debtor is required to pay shall be the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first day of the natural year of plus seven percentage points.

By interest rate applied by the European Central Bank to its main refinancing operations, the interest rate applied to such transactions shall be understood in the case of fixed-rate auctions. In the event that a main refinancing operation is carried out in accordance with a variable rate auction procedure, this interest rate shall relate to the marginal interest rate resulting from that auction.

The statutory rate of interest for late payment, as determined in accordance with this paragraph, shall apply for the six months following its fixing.

3. The Ministry of Economy and Finance shall publish in the "Official State Gazette" the rate of interest resulting from the application of the rule contained in the previous paragraph.

Article 8. Compensation for collection costs.

1. Where the debtor is in arrears, the creditor shall be entitled to claim compensation from the debtor for all the duly accredited recovery costs incurred because of the latter's arrears. The principles of transparency and proportionality in respect of the main debt shall be applied in the determination of these charging costs. The compensation shall in no case exceed 15% of the amount of the debt, except in cases where the debt does not exceed EUR 30 000 in which the limit of the allowance is made up of the amount of the debt be treated.

This allowance shall not be made where the cost of recovery in question has been covered by the judgment on the costs of the debtor, in accordance with Articles 241 to 246 and 394 to 398 of Law No 1/2000 of 7 January 2000. Civil Prosecution.

2. The debtor shall not be required to pay the compensation provided for in the previous paragraph where he is not responsible for the delay in payment.

Article 9. Unfair terms.

1. The clauses agreed between the parties on the date of payment or the consequences of the delay which differ as to the time limit for payment and the legal rate of interest for late payment established in the alternative in Article 4 (2) shall be null and void. and in Article 7 (2), as well as clauses which are contrary to the requirements to require the interest of late Article 6, where they have an abusive content, to the detriment of the creditor, under the circumstances of the case, including the nature of the product or service, the provision by the debtor of guarantees and the usual uses of trade. The repeated practice of abusive time-limits may not be considered to be customary for trade.

In order to determine whether a clause is abusive to the creditor, account shall be taken, among other factors, of whether the debtor has any objective reason to depart from the payment period and the legal rate of interest on late payment. Article 4.2 and Article 7.2.

Also, to determine whether a clause is abusive, consideration will be given, considering all the circumstances of the case, whether such a clause primarily serves to provide the debtor with additional liquidity at the expense of the creditor, or if the main contractor imposes on its suppliers or subcontractors payment terms which are not justified by reason of the conditions for which it is a beneficiary or for other objective reasons.

2. The judge declaring the invalidity of such unfair terms shall integrate the contract in accordance with the provisions of Article 1.258 of the Civil Code and shall have the power of moderators in respect of the rights and obligations of the parties and of the parties. consequences of its ineffectiveness.

3. The unfair terms contained in the general terms of the procurement as provided for in paragraph 1 shall also be null and void.

4. The actions for cessation and retraction in the use of the general conditions referred to in the previous paragraph may be exercised in accordance with Law 7/1998 of 13 April on the General Conditions of Employment, following entities:

(a) Associations, associations of associations and corporations of employers, professionals and farmers who are in the statutory task of defending the interests of their members.

b) The Official Chambers of Commerce, Industry and Navigation.

c) The legally constituted professional colleges.

These entities may be personified in the processes promoted by any other entity, if they deem it appropriate for the defense of the interests they represent.

Article 10. Domain reservation clause.

In the internal relationships between seller and buyer, the buyer shall retain ownership of the goods sold until the full payment of the price, provided that a domain reservation clause has been expressly agreed between the buyer and the buyer. seller prior to the delivery of the goods.

Without prejudice to the application of Article 1.112 of the Civil Code, the seller may subrogate in his right to the person who, by means of advance payment, financing or assumption of the obligation, performs the consideration on behalf of the debtor or allows the debtor to acquire the right to the object of the domain reservation or to use it when such consideration is actually intended for that purpose.

Among the conservation measures of your right, the seller or the third party that has financed the transaction may withhold the evidence of ownership of the goods on which the reservation of the domain.

Additional disposition first. Payment scheme in retail trade.

In the area of payments to suppliers of trade that regulates Law 7/1996, of 15 January, of the Ordination of Retail Trade, it will be in the first place to the provisions of article 17 of the Law, applying in form This Law is not available.

Additional provision second. Government report to the Congress of Deputies.

The Government, within two years of the entry into force of this Law, will send to the Congress of Deputies a report that will analyze and evaluate the effects and consequences of the application of the the same in relation to the payment periods in the commercial transactions carried out between undertakings and between undertakings and administration.

Single transient arrangement. Pre-existing contracts.

This Law shall apply to all contracts which, falling within its scope, have been concluded after 8 August 2002 in respect of its future effects, including the application of the interest rate of the Delay provided for in Article 7. However, with regard to the nullity of the clauses agreed upon by the causes set out in Article 9 thereof, this Law shall apply to contracts concluded after their entry into force.

Single repeal provision. Regulatory repeal.

All rules of equal or lower rank are repealed in terms of what they contradict or oppose to this Law, except for those that, in relation to the determination of the payment period, are more beneficial to the creditor.

Final disposition first. Amendment of the recast text of the Law on Public Administrations Contracts approved by the Royal Legislative Decree 2/2000 of 16 June.

The recast text of the Law on Public Administration Contracts, approved by the Royal Legislative Decree 2/2000 of 16 June, is amended as follows:

One. Article 99 (4) is worded as follows:

" 4. The Administration shall be obliged to pay the price within 60 days of the date of issue of the certificates of works or of the documents corresponding to the total or partial performance of the contract, without prejudice to the special time limit laid down in Article 110 (4), and, if it is delayed, shall pay the contractor, on the basis of that period of 60 days, interest on late payment and compensation for recovery costs. in the terms laid down in the Law establishing measures to combat late payment in the business operations. "

Two. Article 110 (4) is worded as follows:

" 4. Except in the case of works contracts, which shall be governed by Article 147.3, within a period of one month from the date of the minutes of receipt, the relevant settlement of the contract shall be agreed and notified to the contractor. the resulting balance shall be paid, if any, to the contract. If the payment of the settlement balance is delayed, the contractor shall be entitled to receive interest on late payment and compensation for the costs of recovery under the terms laid down in the Act establishing measures to combat the late payment in commercial transactions. "

Three. Article 116 (4) and (5) shall be worded as

:

" 4. Except as provided for in paragraph 5, the contractor shall pay the invoices within the time limit set in accordance with Article 4 of the Law establishing measures to combat late payment in commercial transactions. In the event of a delay in payment, the subcontractor or the supplier shall be entitled to the recovery of the interest on late payment and the compensation for the costs of recovery in the terms provided for in the same Law.

5. Where the payment period is more than 60 days, the payment shall be made by means of a document bearing the exchange rate; and where the payment period exceeds one hundred and twenty days, it may also be required by the subcontractor. or supplier that such payment is guaranteed by endorsement.

Subcontracts and supply contracts referred to in the preceding paragraph shall in any case be private in nature. "

Four. Article 169 (3) is worded as follows:

" 3. In the case of Article 167 (a), the contractor shall be entitled to the payment of the interest for late payment provided for in the Law establishing measures to combat late payment in commercial transactions in the amounts due or economic values. agreed, on the expiry of the time limit laid down for their delivery, as well as the damage suffered. '

Five. Point (a) of paragraph 2 of the first provision is worded as follows:

"(a) The periods of 60 days, four months and eight months provided for in Article 99."

Final disposition second. Amendment of Law 7/1996, of 15 January, on the Management of Retail Trade.

Law 7/1996, of 15 January, on the Management of Retail Trade, is amended as follows:

One. Article 17 (1), (3), (4) and (5) are hereby worded as

:

" 1. In the absence of an express deadline, traders shall be deemed to make the payment of the price of the goods they purchase within 30 days of the date of their delivery.

3. Payment deferrals for fresh feed products and perishables shall in no case exceed 30 days. Payment deferrals for other food products and for large consumption shall not exceed the 60-day period, except in the case of an express agreement providing for economic compensation equivalent to the largest deferral and for which the supplier is beneficiary, without in any case being able to exceed the 90-day period.

Fresh and perishable food products shall mean those products which, due to their natural characteristics, retain their qualities suitable for marketing and consumption for a period of less than 30 days or which require the regulated temperature conditions for placing on the market and transport. They are products of great consumption those consumables that are usual and repetitive purchase by the consumers and that they have high turnover.

The Government shall determine, within three months, the definition of the products referred to in the preceding paragraph.

4. With regard to products other than fresh or perishable products or food and large consumption, where traders agree with their suppliers of payment deferrals which exceed 60 days from the date of delivery and receipt of the goods, the payment shall be made in a document bearing the same exchange rate, with the express mention of the date of payment indicated on the invoice. In the case of deferments exceeding ninety days, this document will be subject to the order. In any case, the document must be issued or accepted by the traders within thirty days, from the date of receipt of the goods, provided that the invoice has been sent. For the granting of payment deferrals in excess of one hundred and twenty days, the seller may require that they be guaranteed by bank guarantee or credit or security insurance.

5. In any event, the accrual of moratoria interest shall be made automatically from the day following that indicated for the payment or, in the absence of a pact, to the one in which it should be made in accordance with paragraph 1. In those cases, the rate applicable for determining the amount of interest shall be that provided for in Article 7 of the Law laying down measures to combat late payment in commercial transactions, unless the parties have agreed in the contract a different type, which in no case will be less than the one indicated for the legal interest increased by 50 percent. "

Two. A second transitional provision is added with the following wording:

" Second transient disposition. Payment deferrals scheme to retail trade providers.

The deadline for fresh and perishable products will remain the 30-day demand. The maximum limitation of 60 days referred to in Article 17.3 of this Law shall apply from 1 July 2006. In the meantime, payment deferrals for food products which are not fresh or perishable and the products of great consumption shall not exceed 90 days from the delivery of the goods. "

Final disposition third. Competence title.

This law is dictated by the powers that Article 149.1.6. and 8. of the Constitution attributes exclusively to the State in matters of commercial and civil law. However, the final provision of this Law is made under Article 149.1.18. It will be considered as a basic rule, with the exception of the amendment to Article 169.3 of the recast of the Law on Contracts of Public Administrations, which does not have this basic rule character according to the final disposition of this legal text.

Final disposition fourth. Entry into force.

This Law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this law.

Madrid, 29 December 2004.

JOHN CARLOS R.

The President of the Government,

JOSE LUIS RODRIGUEZ ZAPATERO