Law no. 72/2013 came into force on 5 April 2013, and contains several measures designed to combat late payment of obligations resulting from contracts concluded between undertakings or between undertakings and contracting authorities. This law transposes the Directive 2011/7/EU on combating late payments in commercial transactions.
The application of the new law is limited to unchallenged, payable and due claims, which arise from contracts concluded between undertakings or between undertakings and contracting authorities, which involve the delivery of goods or provision of services (including design and execution of public works, building and civil engineering). This law is not applicable to (i) claims made during insolvency proceedings or alternative debt restructuring proceedings; and (ii) contracts concluded between undertakings and consumers.
In relation to contracts between undertakings, the new law stipulates the following:
- the payment term, if the parties did not contractually agree upon a date, will be 30 calendar days following the date of receipt of the invoice or after the date of receipt of the goods/services;
- the agreed payment term may not exceed 60 calendar days. Exceptionally, the parties may agree to exceed the 60 days period, if the clause is not manifestly unfair to the creditor;
- the penalty for delay in payment, if the parties did not contractually agree upon an amount, will be the reference interest rate of the National Bank of Romania plus 4 points;
- the parties may not agree on date of issuance/receipt of the invoice.
In relation to contracts between undertakings and contracting authorities, several distinctions are made to the rules above:
- the payment term is a maximum of 30 calendar days following the date of receipt of the invoice or after the date of receipt of the goods/services. In the case of public entities/institutions of the health system, the payment term may be up to 60 days;
- the agreed payment term may not exceed 30 calendar days. Exceptionally, the parties may agree to increase the payment term to 60 calendar days, if the clause is not manifestly unfair to the creditor and if such an increase is justified given the subject matter of the contract;
- the penalty for delay in payment, if the parties did not contractually agree upon an amount, will be the reference interest rate of the National Bank of Romania plus 8 points.
The creditor is entitled to fully recover all its expenses incurred for recovering its claims plus a fixed amount of EUR 40 (as "minimum supplementary damages")
Practices or contractual clauses relating to the payment date, penalties for delay in payment or minimum supplementary damages compensation for recovery costs, which are deemed grossly unfair to the creditor are deemed abusive and subject to court scrutiny.
The following types of clauses (with respect to the creditor) are by law deemed as abusive:
- those that preclude the application of penalty interest / that establish penalty interests in amounts lower then the threshold provided by the law;
- those that set out formal notices in order for the delay penalties to accrue;
- those that provide a longer term than the one set by law for the debt to start bearing interest;
- those that set a payment deadline exceeding the one provided by law within a contract concluded between professionals and contracting authorities;
- those that exclude the possibility of requesting additional damages;
- those that establish a term for the issue / receipt of the invoice.
Abusive clauses are null and void by law. Organizations representing companies who are the victims of abusive clauses have the legal authority to demand that the courts strike out any abusive clauses or unfair practices.
The main scope of this law is to combat late payments, especially those caused by state authorities. Furthermore, the concept of abusive contractual clauses is extended for the first time to transactions between undertakings or between undertakings and contracting authorities, increasing the level of protection of creditors against debtors (especially state authorities). There are high expectations with respect to the practical effects of this law, but its implementation is key for achieving the desired progress in combating late payments.