Law no. 72/2013
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9 April 2013
The law on combating late payments under contracts between economic operators and between them and contracting authorities entered into force on 5 April 2013 (the “Law”). The Law transposes Directive no. 7/2011/EU dated 16 February 2013 of the European Parliament and the Council on combating late payment in commercial transactions.
We present below the main provisions introduced by the Law. We also indicate certain matters regulated by the law which are likely to create implementation difficulties.
Contracts concluded between economic operators
The Law reproduces the New Civil Code's definition of economic operators and provides for a maximum contractual payment period of 60 calendar days;
By exception, parties can stipulate an extended payment period clause in their contract, provided that this clause does not constitute abuse, under the current Law provisions;
The Law also provides the possibility of conventionally determining the late-payment penalty interest rate, as well as the method for determining the date from which the late-payment interest starts to accrue. If the parties have not set the interest rate, it will be calculated at the legal penalty interest rate, based on the NBR reference interest rate.
Contracts concluded between economic operators and contracting authorities
Contracting authorities, as defined by the Law, are required to comply with the following payment terms:
30 calendar days from invoice receipt or other equivalent payment request;
30 calendar days from the date of receipt of goods or services, if the invoice was issued before the delivery of goods / provision of services, or if it has not been issued;
30 calendar days from receipt of goods or their quality check, if a receipt procedure is provided by law or in the contract. The receipt of goods cannot exceed 30 calendar days except for special cases, based on the nature of the goods received, if this clause does not constitute abuse.
The payment term can be extended to a maximum of 60 calendar days if this is specifically mentioned in the contract and in procurement documentation, and is objectively justified:
- When setting this 60-day maximum term, the nature or specific features of the contract will be taken into account, on condition this clause does not constitute abuse.
In completing the text mentioned under paragraph 5 above, the legislator (under article 14, letter d) qualifies the establishment of a longer payment term than that provided under Art. 7 par.1 of the Law, in contracts between economic operators and contracting authorities, as abusive ex officio, without it being necessary to check the circumstances of the cause referred to in art. 13 or other specific circumstances:
- Qualifying this clause as abusive ex officio contradicts the possibility conferred in the second thesis of art. 7 par.1 to set longer payment terms of a maximum of 60 days, so this discrepancy between the two law articles could generate practical issues.
The practice or contractual clause which establishes a payment term, late-payment penalty interest rate or additional damages, clearly inequitable in relation to the creditor's interests is qualified as abusive:
- The legislator does not define and does not clearly outline the limits of the notion “clearly inequitable”, so it is open to interpretation by the courts and, therefore, at their discretion whether a clause or practice is “clearly inequitable”.
The legislator establishes the circumstances which the court must take into account in determining whether a clause or practice is abusive:
a) Serious violations of the practices established between the parties or usage in accordance with the public order or morals;
b) Non-observance of good faith and diligence principles in the execution of obligations;
c) The nature of the goods or services;
d) Not providing objective reasons to derogate from the terms of payment or from the interest rate, as provided under the Law;
e) The dominant position of a contracting party in a business relationship with a small or medium enterprise.
The Law brings a major limitation to contractual freedom between economic operators and between them and public authorities which in practice could lead to disagreements:
- The parties may not set the date of issue / receipt of the invoice, so any clause stipulating a term for issuing / receiving the invoice is considered to be abusive.
The Law sanctions as void
all clauses considered to be abusive under the Law.
An important supplementation of Government Ordinance no. 13/2011 on the legal remunerative interest rate and legal penalty interest rate, for financial obligations, and regulation of some financial and fiscal measures in banking system is brought:
- In relations between economic operators and between them and contracting authorities, the legal penalty interest rate is the reference rate plus 8%.
The law does not apply to the payment obligations due under contracts concluded between economic operators and between them and contracting authorities before the entry into force of the Law.
[Source: Official Monitor of Romania no. 182/2 April 2013]
For additional information, please contact: Sorin David, Dan Dascalu, Anda Rojanschi or Manuela Guia.