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SEMINAR ON LATE PAYMENT DIRECTIVE

SEMINAR ON LATE PAYMENT DIRECTIVE. Pilar Perales Viscasillas University of La Rioja, Spain. Examples of country application on the transposition of Directive 2000/35/CE. A disclaimer clause 27 Member States have incorporated the Directive

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SEMINAR ON LATE PAYMENT DIRECTIVE

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  1. SEMINAR ON LATE PAYMENT DIRECTIVE Pilar Perales Viscasillas University of La Rioja, Spain

  2. Examples of country application on the transposition of Directive 2000/35/CE • A disclaimer clause • 27 Member States have incorporated the Directive • October 2006 -Review of the effectiviness of European Community Legislation on combating late payments. • Divergencies in member States in the transposition of the Directive.

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

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

  5. EXCLUSIONS • Consumir transactions:included in Germany, Finnland and Luxembourg. • Payments under bill of exchange and cheques: Spain/Lituania/Portugal. • Payment made as compensation for damages, including payments from insurance companies: Italy, Spain, Portugal, Luxembourg, Lituania. But included in Finnland. • Debts that are subject to insolvency proceeding instituted against the debtor: Italy/Spain/Poland/Lituania/Luxemburg. Belgium has established the primary application of the insolvency regime. • Claims for interest of less than EUR 5: Ireland, Italy • Other exclusions • In Poland, financial contracts are excluded, as well as sale of goods or services contracts which are financed by international institutions in which Poland is a member. • Luxembourg: it does not apply the law to a contract concluded between to public authorities.

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

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

  8. PERIOD OF PAYMENT • 30 days. Breach of a fundamental rule in bilateral or synallagmatic contracts, but not in Austria: section1334 CC: “Unless otherwise agreed by the parties, the debtor shall effect his performance without any undue delay after the performance of the creditor…”. • Art.3.2 Directive: 60 days: Italy, Spain, France and Portugal. Spain: breach of the Directive

  9. Arts.3.3/3.4 Directive: control of grossly unfair terms • Both negotiated and standard terms: Spain • Only standard terms: Germany • Competition laws: abuse of a dominant position/unfair terms.

  10. -RECOVERY COSTS Decision of 10 March 2005 -RETENTION OF TITLE Decision 26 October 2006 -ENFORCEABLE TITLE -Regulation of the European Parliament and of the Council creating a European order for payment procedure, 12.12.2006. -Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims Judgement 26 October 2006

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