It was recently confirmed that EU Directive 2011/7/EU on combating late payment in commercial transactions will be implemented in the Netherlands on 16 March 2013. Like the Directive, the Dutch implementing act (the "Act") is aimed at discouraging late payment by commercial parties. This legal alert sets out the main changes introduced by the Act.
Payment deadline for transactions between undertakings
The Act will tighten payment deadline provisions for transactions between undertakings. The existing rules that specify when statutory interest starts accruing will remain unchanged, but a new section will be added to Dutch Civil Code limiting the contractual payment deadline. Under this section 6:119a.5 parties may not agree a payment deadline of more than 60 days, unless they clearly specify a longer payment deadline in the contract. This longer deadline may not be grossly unfair towards the creditor, having regard to circumstances such as (a) whether the debtor has any objective reasons to deviate from the 60-day deadline, (b) the nature of the agreed performance, and (c) any significant deviation from good commercial practice.
As stated above, a longer payment deadline must be set out explicitly in the contract. A longer deadline stipulated in general terms and conditions is therefore invalid and unenforceable. In assessing whether a payment deadline is not grossly unfair towards the creditor, all relevant circumstances are taken into account.
Increase in statutory interest
When the Act takes effect, the statutory interest for late payment will be equal to the European Central Bank's most recent reference rate for main refinancing operations plus at least eight percentage points. This means an increase of one percentage point compared to the old statutory interest.
Minimum collection fee
The Act introduces a new section 96 to the Dutch Civil Code: where a payment deadline has passed and interest becomes due, the creditor may charge a standard collection fee of EUR 40. The debtor will owe this fee, without the need for any reminder, from the day following that on which the statutory or agreed payment deadline expires. No deviations from this may be agreed to the detriment of the creditor.
Maximum payment deadline for public authorities
A new section is added to the Dutch Civil Code prescribing a maximum payment deadline of 30 days for public authorities in view of their special commercial position. Parties may not deviate from this 30- day deadline unless they clearly specify a longer deadline in the contract and the special nature and characteristics of the contract objectively justify this. In that case, the maximum payment deadline is 60 days.
Impact on existing and new contracts
The Act will not affect existing contracts, i.e. contracts entered into before 16 March 2013. A transitional provision to that effect has been added in implementation of the Directive. Any contracts entered into after 16 March 2013 will be subject to the new payment deadline rules.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
