Italy has adopted Legislative Decree No 192 of 9 November 2012 implementing Directive 2011/7/EU on combating late payment in commercial transactions. Italy is the first European member State implementing these strict rules. The payment period is thirty days, and shall not exceed sixty days except in exceptional circumstances. The new rules will apply to all contracts concluded after 1th January 2013.
On 31 October 2012 the Italian Government adopted the draft of Legislative Decree implementing Directive 2011/7/EU on combating late payment in commercial transactions (‘Directive 2011/7/EU’)1 between undertakings and between undertakings and public authorities. The draft has then been confirmed by Legislative Decree No 192 of 9 November 2012, published in the Italian Gazzetta Ufficiale on 15 November 2012.
Italy is the first of the big European member States to implement. The Directive is designed to combat late payment with regard to goods and services supplied by undertakings and to public operators and public authorities. Although Member States are only required to transpose the Directive by 16 March 2013, Italy has decided to give effect to its rules starting from 1 January 2013 so as to better help small and medium sized enterprises which have less access to financial resources.
Decree No 192 of 9 November 2012 applies to any payment made as remuneration for commercial transactions. For the purposes of the Decree, ‘commercial transactions’ means transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration. This scope of application could not be broader. The only commercial transactions to which Decree No 192 of 9 November 2012 does not apply are debts due to insolvency and restructuring proceedings, payments made as compensation for damages including those made by an insurer.
Decree No 192 of 9 November 2012 provides that the period for payment shall be thirty calendar days. More precisely, the period for payment shall not exceed the following time limits:
- thirty calendar days following the date of receipt by the debtor of the invoice or an equivalent request for payment. Requests of integration or formal modifications of the invoice or any equivalent request for payment have no effects on the payment time;w
- here the date of receipt of the invoice or the equivalent request for payment is uncertain, thirty calendar days after the date of the receipt of the goods or services;
- where the debtor receives the invoice or the equivalent request for payment earlier than the goods or the services, thirty calendar days after the date of the receipt of the goods or services;
- where a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or on the date on which such acceptance or verification takes place, thirty calendar days after that date.
The discipline is slightly different depending on whether the commercial transaction is concluded between private undertakings, or between private undertakings and public authorities.
As regards commercial transactions between private undertakings, the contracting parties may fix a different period for payment which shall be in writing and shall not exceed sixty calendar days unless there are exceptional and justified circumstances. These agreed derogations are excluded in the case of contracts for the purchase and sale of agricultural products and foodstuffs pursuant to Article 62 of Law No 27 of 24 March 2012.
As to commercial transactions where the debtor is a public authority, the period for payment shall not exceed thirty calendar days. Longer periods for payment will be only allowed as regards public authorities carrying out economic activities in exceptional and justified circumstances, and as regards public authorities involved in the health sector.
Where the deadline for payment expires and the delay in payment is attributable to the debtor, interest shall automatically kick-in the day after the deadline. Pursuant to the Decree No 192 of 9 November 2012, the rate of interest shall increase from the current 7% up to 8%, in addition to the rate fixed by the European Central Bank for refinancing operations.
For the purpose of discouraging late payment, where the interest for late payment becomes payable, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of Euro 40 Euro. This fixed sum is payable without the necessity of a reminder and as compensation for the creditor’s own recovery costs.
Directive 2011/7/EU also contains specific provisions on unfair contractual terms and practices that Member States will have to implement in order to ensure the effectiveness of new rules on combating late payments.2 Accordingly, Italy has already transposed these rules by introducing the following provisions.
Pursuant to Decree No 192 clauses adjusting the payment time, the rate of interest and/or the compensation for recovery costs will be null and void, whenever included in the contract to the detriment of the creditor. The civil Courts shall be entitled to declare the invalidity, ex officio or upon complaint, having taken into consideration all circumstances of the case, including any gross deviation from good commercial practice contrary to good faith and fair dealing, the nature of the product or the service, and whether the debtor has any objective reason to deviate from the statutory rate of interest for late payment, the legal payment period or from the fixed sum of 40 Euros.
Contractual terms which exclude interest for late payment and/or compensation for recovery costs shall be presumed to be grossly unfair. Furthermore, in commercial transactions where the debtor is a public authority clauses determining or modifying the date of receipt of the invoice shall be null and void. This invalidity shall be declared ex officio by the civil Courts.
These rules will apply to all contracts concluded after 1 January 2013. Retroactive application has been excluded in order to allow economic operators and public authorities to adapt themselves, especially as to contract forms and internal procedures for payments.
