Proposition 53K2927

Projet de loi modifiant la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

July 3, 2013

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

EC Directive deadline for payment invoicing financial transaction commercial law commercial transaction small and medium-sized enterprises claim

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

∉ N-VA LDD

Abstained from voting

Groen Ecolo VB

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.
• Bernard Clerfayt (MR) abstained from voting.
• Olivier Maingain (MR) abstained from voting.
• Damien Thiéry (MR) abstained from voting.

Contact form ¶

Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.

Discussion ¶

July 17, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I will not delay this by referring to the written report. After all, it is a unicum that for the first time in thirty years a member of our group is allowed to issue a report.

In short, the proposal includes the transposition of a European Directive on combating late payment in commercial transactions. The transposition of that Directive will provide for a clear payment scheme, which will strengthen the position of companies with regard to the rules on payment deadlines and binding penalties in case of late payments.

Long payment periods and late payments have an adverse impact on the liquidity of our ⁇ . Accurate payment timeframes are therefore essential for ⁇ , in particular SMEs.

The bill stipulates a statutory payment period of 30 days for contracts between companies and the government. That statutory payment period may be extended contractually under strict conditions. However, it must never exceed sixty calendar days, which constitutes a constraint to current legislation, which does not set a maximum.

For contracts between companies, a statutory payment period of 30 days is also set. However, the companies may also agree to a different payment period.

In addition, as in current legislation, a period for inspection and verification of the goods and services purchased could be provided for both for trade transactions between undertakings and between governments and undertakings.

In the event of a delay in payment, the creditor is now also entitled to a referral interest, the percentage of which may be agreed upon by the parties themselves. If they do not agree, the percentage is legally set at 8% above the interest rate for the underlying and financing transactions.

The draft law will have a positive impact on the competitiveness and financial position of the companies.

The general discussion was initiated by Mr Karel Uyttersprot. He reiterated that the damage caused by late payments is enormous for companies.

Payment transactions are not only regulated by the law amended by this bill. He pointed out that there are also important changes needed to a KB.

On the deadline for the conversion, several speakers made an important comment. The bill expires on 16 March, which means that the bill provides for a retroactive effect. The bill corresponds in several points to the bill that Mr. Uyttersprot had already submitted and which provides for a number of side-by-side measures to make it easier for companies to deal with their claims.

Mr. Clarinval also highlighted the positive aspects of the draft and pointed out the importance of combating late payments. In the general discussion, he also addressed the specific issue of the expected complete parallelism in the treatment between business-to-business and business-to-public administration. He was pleased to be assured that the Royal Implementation Decree on that point would not be in conflict with the European Directive.

Mr. Olivier Henry was also very pleased with the design. He would like to recall that he had previously questioned the colleague of the Minister on this matter. He considered it an important issue, because too many bankruptcies can be attributed to such payment delays.

CD&V also supported the draft law, on behalf of Ms. Leen Dierick. She stressed that there is an urgent need, especially for SMEs, because they are facing high recovery costs.

On behalf of the Flemish Interest Group, I pointed out in the general discussion that the number of unpaid invoices in this country represents more than 9 billion euros and that it is essential that those problems are addressed, in the benefit of the companies.

I also referred to a comment already made by colleague Uyttersprot and others, namely that, unfortunately, it is a late conversion. I have also added the critical consideration that it is worth waiting to see whether the reduction of late payment will be achieved by stricter payment deadlines and by the charging of higher interest rates, because for many companies it is not a question of not wanting to pay, but rather of not being able to pay.

My amendment gives creditors more opportunities through an alternative measure. They could get more satisfaction from the public debtor through an amendment to the Judicial Code. As this falls outside the scope of the Directive to be transposed, it was rejected by a majority.

This fate was also affected by the amendments of the N-VA. In the meantime, they are again on the banks, the respective applicants will give more explanations about them.

Stefaan De Clerck has returned several times to the retroactive entry into force of the bill. According to the Cabinet, the old directive no longer applies from the deadline for the transposition of the new directive. It is therefore not possible but to have the new Directive entered into force from that date.

This was the report of a very pleasant discussion in the committee.

Mr. Speaker, dear colleagues, I wish to report on the draft law in its entirety because I consider that I cannot agree to share this role of rapporteur only with a member of a democratic party. Unfortunately, this is not the case here. This is independent of the will of my group. I also do not think that this was the will of the democratic parties of the commission responsible for the problems of Commercial and Economic Law.

The committee examined this bill on the occasion of its meeting on July 9. In its introductory presentation, the Minister of Justice specifies that the bill under consideration aims to transpose the European Directive on combating late payment in commercial transactions by amending the law of 2 August 2002.

In Belgium, the amount of unpaid bills amounts to 9.15 billion. On average, ⁇ pay their bills after 54 days, consumers after 36 days, and public authorities after 73 days.

Long payment delays and late payments have a negative effect on the liquidity of our companies. A correct payment time is therefore of crucial importance for ⁇ , and in particular for SMEs.

Based on this basic principle of the directive, the bill provides for a statutory payment period of 30 days for contracts concluded between companies and the state. This legal payment period may, under certain strict conditions, be extended contractually. However, this contractually agreed period may not exceed 60 calendar days. Therefore, this is a tightening of current legislation that does not provide any limits.

For contracts concluded between companies, a legal payment period of 30 days is also provided. If a payment deadline is contractually agreed, it can never in practice exceed 60 calendar days since such a deadline is generally acceptable in practice on the basis of commercial practices in many sectors. However, the parties still have the possibility, in certain situations and under strict conditions, to agree on a payment period that exceeds this threshold of 60 calendar days. This takes into account the different business models of companies.

The general discussion was followed. by Mr. Karel Uyttersprot indicates that he raised this issue already more than a year ago. Furthermore, in the field of public procurement, the scheme applies subject to specific rules.

This means that, in the context of public procurement, the general legal regime is applicable for amounts below EUR 8 500; for amounts higher, the Royal Decree on Public Procurement is applicable. It already partially implements the directive and the law, which obviously does not exist at this time. Finally, the interviewer notes that the deadline for transposition expires on 16 March. Therefore, the bill provides for a retroactive effect. The State Council notes that retroactivity can only be invoked for the realization of objectives of general interest.

The draft law has several points in common with the draft law. Karel Uyttersprot, in which he envisaged several accompanying measures aimed at facilitating the recovery of debts for companies.

by Mr. David Clarinval points out that this bill was expected by companies, especially in this time of crisis. A specific question concerns the total parallelism in the treatment between business to business and business to public administration. The intervener would like to be assured that, on this point, the Royal Enforcement Order will not conflict with the Directive, in particular in terms of the modalities and duration of the verification procedure in the case of ⁇ complex contracts between the administration and its co-contractors.

by Mr. Olivier Henry wishes to express his satisfaction with regard to the completion of this project and recalls that he had questioned the minister and his colleague Mrs. Laruelle a few weeks ago about the delay taken in transposing the directive.

Ms. Leen Dierick supports the bill under consideration, which responds to an urgent need, ⁇ for SMEs, which are facing significant recovery costs. It also refers to its bill.

by Mr. Joseph George points out that the law under consideration does not cover the entire scope of financial transactions, as it excludes in particular the payment of subsidies and subsidies – which can lead to further payment delays in the economic chain.

The Minister would like to clarify, regarding the elaboration of this draft and the Royal Decree of 14 January 2013 establishing the general rules for the execution of public contracts and public works concessions, that public contracts are within the competence of the Prime Minister, but that the texts were prepared in consultation with the Department of Justice.

Finally Mr. Stefaan De Clerck wants to return to the question of retroactivity. It is known that it is intended to compensate for Belgium’s delay in transposing the directive. The project is intended to apply to payments and the execution of contracts concluded, renewed or extended from 16 March 2013. In fact, this will involve a large number of commercial transactions. Will this not lead to practical problems? Does this retroactivity necessarily result from the requirements of Community law?

The Minister confirms that the 2002 law was based on the 2000 Directive, which ceased to take effect on 16 March 2013, the final date on which the new Directive was supposed to have been transposed. It is therefore on the basis of Community law that this retroactive effect must be recognised in the text under consideration, which merely implements the new directive.

In practice, the information to the economic sector and the general public regarding the transition from one regime to another will be provided by the SPF Justice.

This bill was adopted by 10 votes for and 5 against.

Mr. Speaker, I would like to respond briefly to the comment that there was apparently a need for a reporter from a so-called democratic party. I do not think that this comment belongs to an objective report. The State Council has even ruled that we are a democratic party, so the opinion of a PS’er does not interest me and ⁇ does not belong in an objective report. I find it very eloquent that the self-proclaimed Democrats are protesting at the technical services for a journalist who is democratically designated. This says more about them than about us.

Dear colleagues, I simply wanted to say that, for me, the incident was closed, in so far as it was to the commission that the first act was submitted. It is the committee that has appointed a rapporteur, we cannot be responsible, at our level, for what is done in the committees.

Mr. Speaker, Mrs. Minister, dear colleagues, strict payment deadlines are a long-standing demand from the business community, in particular from our SMEs. The best oxygen for our companies is timely payment of the bills. Unpaid payments are causing huge damage to our economy. The remaining amount of unpaid invoices exceeding the payment deadline currently amounts to EUR 9.15 billion. At the European level it is 350 billion euros. Failure to pay is one of the main causes of bankruptcy and causes 54% of our companies to have liquidity problems.

The Payment Practices Barometer examined business-to-business payments and found that our SMEs have to wait an average of 74.3 days before receiving their payments, or 14 days later than the European average. 28.6% of domestic payments and 27% of foreign invoices remain unpaid on due date. Consumers usually pay their bills after 36 days, ⁇ after 54 days, and our government waits 73 days. In the Netherlands it is 44 days, in Germany it is 36 days.

Payment transactions in our country are governed by the law of 2 August 2002 and the Royal Decree of 1996 on public procurement. In 2011, a European directive came into force to impose stricter standards regarding payment deadlines. This should be done by 16 March.

On 14 January a royal decree was issued establishing the general rules of implementation for public procurement, public procurement of more than 8 500 euros. This Royal Decree is already partly implementing the present draft law. Here the chariot for the horses is strained.

The present draft law on combating late payment has itself a delay of 120 days, so it is four months too late, since the deadline expired on 16 March.

Already in September 2012, N-VA and previously also CD&V submitted a bill to implement the European Directive, with strict application of the basic payment period of 30 days, coupled with a number of flanking measures.

The scope of application is the business-to-business affairs and transactions between government and companies.

If a verification period is provided, the basic principle is that the period of up to 30 days after verification. But, and here the shoe wraps, the above regulation from the Public Procurement Act, however, applies subject to the specific rules on public procurement. The explanatory note indicates that the law is applicable to the extent that this transaction is not subject to specific provisions of the public procurement legislation, in particular as regards the general rules of implementation. In particular, small public procurement may be considered where the amounts are below the threshold amounts.

This law applies to all commercial transactions, but not to all public procurement. Although it applies to small public contracts, large public contracts are covered by the Royal Decree of 14 January 2013. This KB allows a wide verification period, after which the payment period begins to run. For this reason, Mrs. Minister, we had requested by an amendment the omission of Articles 4 and 5 in order to put public procurement and trade transactions with public and private undertakings on the same level.

I also have other comments.

As already stated, the deadline for transposition of the Directive into national law has expired on 16 March. However, Article 14 provides for retroactivity. This retroactivity rightly arouses resentment and resistance among lawyers. Therefore, the State Council’s opinion correctly notes that retroactive force can in fact only be invoked when the public interest is compromised. There was no clarity in the committee on this issue. We therefore wonder what the concrete consequences will be for the transactions concluded between 17 March 2013 and the entry into force of the law.

On a number of points, elements of the N-VA bill have been addressed but on other matters such as the flanking measures also requested by the European directive, no follow-up has been given. It involves three flanking measures, first, the automatic and free delivery of the expedition when issuing a judgment. In the case of cross-border transactions, this should not involve greater risks than in domestic transactions. The question was the implementation of Regulation (EC) No 1896/2006 establishing the payment order procedure, which is intended to accelerate the recovery of uncontested monetary claims in Belgium, as well as a clause of reservation of ownership.

Our main remarks to the present draft relate to the scope itself. Government should fulfill a role of example. Long payment periods and the resulting delays in payment by public authorities for supplied goods and services result in unfair additional costs. An harmonisation of the existing statutory payment periods in which the government subsequently fulfils the same commitments as the private and private debtors is legitimate and feasible for us. The equalization of public and private is possible under Article 12(3) of the European Directive, which allows for a stricter application.

Compared to the current situation in which for public procurement the term of 60 days for payment plus verification without any possibility of derogation means the present draft is actually a downturn. More specifically, there is a possibility to provide for an indefinite period for verification. Only after that verification begins the period of 30 or 60 days. It is the medium-sized organizations such as the Confederation of Construction and Unizo that rightly express their concerns.

Hence our proposal to create a level playing field for companies and government. Our proposal to introduce an unextended 30-day verification period to be followed by a 30-day payment period, eventually extended to 60 days, would be a better application. Now public procurement is granted a more flexible payment regime than transactions with private companies.

For invoices, we want a fixed payment period of 30 days, in some cases extended to 60 days, and this after verification. We also want strict provisions on verification.

We have submitted a number of amendments in the committee to amend this draft, but they have failed. We will not approve this draft.

Mr. Speaker, dear colleagues, the figures of Graydon show that in Belgium there are unpaid invoices for a total of 9.5 billion euros.

I am convinced that the transposition of the Delay Payment Directive will create a clear payment framework, which will strengthen the position of ⁇ with regard to the rules on delayed payments and binding penalties for delayed payments.

Based on this basic premise from the basic directive, the preliminary draft law provides for a statutory payment period of 30 days for interventions between companies and the government. This statutory payment period may only be extended contractually under strict conditions, but also this is limited and must never last more than 60 calendar days. The transposition of the Directive will therefore mean that both companies and the government will have to pay faster, because the current legislation did not include a maximum limit for payments.

However, an exception is provided for public services providing healthcare. Here, the legal payment period is 60 calendar days instead of 30 days.

Regarding the renewed payment rules for commercial transactions between governments and companies, I would like to immediately also point out that the renewed late payment law will only apply as a general legal framework for transactions which do not fall within the specific scope of special rules on public procurement.

Mr. Speaker, I believe that this bill addresses a demand, and above all, a requirement that many companies have long faced, in particular the transposition of this European directive with a view to shorter payment deadlines, which can also stimulate the economy.

The lump under the grass is situated at the level of the verification period. This is undetermined in the KB of 14 January, which was already published on 14 February in the Belgian Staatsblad and is partially implemented by this law. Thus, indefinite verification periods are possible, after which the period of 30 to 60 days begins to run.