SEMINAR ON LATE SEMINAR ON LATE PAYMENT DIRECTIVEPAYMENT DIRECTIVE

Pilar Perales ViscasillasPilar Perales Viscasillas

University of La Rioja, SpainUniversity of La Rioja, Spain

Examples of country application on Examples of country application on the transposition of Directive the transposition of Directive

2000/35/CE2000/35/CE

A disclaimer clauseA disclaimer clause

27 Member States have incorporated the 27 Member States have incorporated the DirectiveDirective

October 2006 -October 2006 -Review of the effectiviness Review of the effectiviness of European Community Legislation on of European Community Legislation on combating late paymentscombating late payments..

Divergencies in member States in the Divergencies in member States in the transposition of the Directive. transposition of the Directive.

Ways to implement the DirectiveWays to implement the Directive

Special LawSpecial Law: Belgium, Spain, : Belgium, Spain, Cyprus, Greece, Cyprus, Greece, Italy, Lithuania, LuxembourgItaly, Lithuania, Luxembourg..Merging the Directive with the preexisting Merging the Directive with the preexisting domestic Lawdomestic Law (CC/Cco/Law of (CC/Cco/Law of Obligations):France, Portugal, Obligations):France, Portugal, Czech Republic, Czech Republic, France, Hungary, Latvia, Romania, Slovak France, Hungary, Latvia, Romania, Slovak Republic, Sweden. Law of obligations: Bulgaria Republic, Sweden. Law of obligations: Bulgaria and Estonia. Malta (Business Promotion Act). and Estonia. Malta (Business Promotion Act). General law related to interestsGeneral law related to interests: Denmark, : Denmark, Finnland, Ireland, UK, and ScotlandFinnland, Ireland, UK, and Scotland Germany: Germany: complete reformcomplete reform of the BGB of the BGB

Scope of the DirectiveScope of the Directive Type of contracts to be includedType of contracts to be included

Directive 2000/35 does not specify the kind or type of Directive 2000/35 does not specify the kind or type of contracts to be included. contracts to be included. Exceptionally, Malta: sale of goods, service contracts, Exceptionally, Malta: sale of goods, service contracts, lease, work contracts, and loan contracts lease, work contracts, and loan contracts Lithuania also includes work contracts.Lithuania also includes work contracts.Court of Appeal in France, 26 October 2006: contract Court of Appeal in France, 26 October 2006: contract between professionals are excluded. between professionals are excluded. Sale or lease of Sale or lease of real state (real state (Malta). Malta). English text (goods/product); French text English text (goods/product); French text (marchandises/biens); Spanish (bien/mercancías). (marchandises/biens); Spanish (bien/mercancías). Also the fact that in Malta loan contracts are included Also the fact that in Malta loan contracts are included mean that transactions on money are also covered.mean that transactions on money are also covered.

EXCLUSIONSEXCLUSIONSa)a) Consumir transactions:included in Consumir transactions:included in Germany, Finnland and Germany, Finnland and

Luxembourg.Luxembourg.b)b) Payments under bill of exchange and cheques: Payments under bill of exchange and cheques:

Spain/Lituania/Portugal. Spain/Lituania/Portugal. c)c) Payment made as compensation for damages, including payments Payment made as compensation for damages, including payments

from insurance companies: from insurance companies: Italy, Spain, Portugal, Luxembourg, Italy, Spain, Portugal, Luxembourg, Lituania. But included in Lituania. But included in Finnland. Finnland.

d)d) Debts that are subject to insolvency proceeding instituted against the Debts that are subject to insolvency proceeding instituted against the debtor: Italy/Spain/Poland/Lituania/Luxemburg. Belgium has debtor: Italy/Spain/Poland/Lituania/Luxemburg. Belgium has established the primary application of the insolvency regime. established the primary application of the insolvency regime.

e)e) Claims for interest of less than EUR 5: Ireland, ItalyClaims for interest of less than EUR 5: Ireland, Italyf)f) Other exclusionsOther exclusions

In Poland, financial contracts are excluded, as well as sale of goods In Poland, financial contracts are excluded, as well as sale of goods or services contracts which are financed by international institutions in or services contracts which are financed by international institutions in which Poland is a member. which Poland is a member. Luxembourg: it does not apply the law to a contract concluded Luxembourg: it does not apply the law to a contract concluded between to public authorities. between to public authorities.

Substantive provisions: InterestsSubstantive provisions: Interests

Date in which the interests become payable: Date in which the interests become payable: dies a quodies a quo. Most legislators follows literally . Most legislators follows literally art.3.1 b) Directive.art.3.1 b) Directive. However, some States However, some States provide for more favourable provisions for the provide for more favourable provisions for the creditor: creditor: Finnland/UK/Denmark. Finnland/UK/Denmark. Automatic accrual of interestsAutomatic accrual of interests: : In Ireland, In Ireland, Article 4.3 of the Irish transposition law provides Article 4.3 of the Irish transposition law provides for an automatic entitlement to interest rather for an automatic entitlement to interest rather than an automatic payment of interest. In than an automatic payment of interest. In practice this has meant that the interest is only practice this has meant that the interest is only paid when imposed pursuant to a paid when imposed pursuant to a court decision.court decision.

Interest rateInterest rate

Rate of interests: In Lithuania: VILIBOR+7 Rate of interests: In Lithuania: VILIBOR+7 (Interbank interest for loan among banks). (Interbank interest for loan among banks). Usually the States opt for the 7 percentage Usually the States opt for the 7 percentage points, except for Hungary, Malta and points, except for Hungary, Malta and Germany: 8 . Also in Germany if it is a Germany: 8 . Also in Germany if it is a consumer the percentage is 5. consumer the percentage is 5. For the 7 percentage opt: Spain, Belgium, For the 7 percentage opt: Spain, Belgium, France, Finnland,Ireland,Italy,Estonia France, Finnland,Ireland,Italy,Estonia Lithuania,Portugal,Luxembourg.Lithuania,Portugal,Luxembourg.

PERIOD OF PAYMENTPERIOD OF PAYMENT

30 days. Breach of a fundamental rule in 30 days. Breach of a fundamental rule in bilateral or synallagmatic contracts, but not in bilateral or synallagmatic contracts, but not in Austria: section1334 CC: Austria: section1334 CC: “Unless otherwise “Unless otherwise agreed by the parties, the debtor shall effect his agreed by the parties, the debtor shall effect his performance without any undue delay after the performance without any undue delay after the performance of the creditor…”.performance of the creditor…”.

Art.3.2 Directive: 60 days: Italy, Spain, France Art.3.2 Directive: 60 days: Italy, Spain, France and Portugal. Spain: breach of the Directiveand Portugal. Spain: breach of the Directive

Arts.3.3/3.4 Directive: control of Arts.3.3/3.4 Directive: control of grossly unfair termsgrossly unfair terms

Both negotiated and standard terms: Both negotiated and standard terms: SpainSpain

Only standard terms: GermanyOnly standard terms: Germany

Competition laws: abuse of a dominant Competition laws: abuse of a dominant position/unfair terms.position/unfair terms.

--RECOVERY COSTSRECOVERY COSTS

Decision of 10 March 2005Decision of 10 March 2005

--RETENTION OF TITLERETENTION OF TITLE

Decision 26 October 2006Decision 26 October 2006

--ENFORCEABLE TITLEENFORCEABLE TITLE

-Regulation of the European Parliament and of the -Regulation of the European Parliament and of the Council creating a European order for payment Council creating a European order for payment procedure, 12.12.2006.procedure, 12.12.2006. -Regulation (EC) No 805/2004 of the European -Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 Parliament and of the Council of 21 April 2004

creating creating a European Enforcement Order for a European Enforcement Order for uncontested claims uncontested claims

Judgement 26 October 2006