Last summer, the Belgian legislator adopted the Act of 14 August 2021 (the “Act”) (FR/NL) aiming to protect companies faced with difficulties due to the payment behavior of their business customers (B2B). This new Act amends the law of 2 August 2002 (FR/NL) on combating late payments in commercial transactions.
This is not the first time that the legislator intervened. In 2019, a maximum payment term of 60 calendar days was already imposed in commercial transactions where the creditor is a small and medium-sized enterprise (“SME”). Transactions between large companies were not subject to any restrictions. The intervention, however, did not seem to be sufficient to improve the payment behavior between companies and close the loopholes to prolong payment terms.
Companies used the ‘acceptance or verification period’ for goods and services (with a maximum of 30 days) to extend the payment term to 90 calendar days, which posed a serious threat to SME’s cash flow.
Starting from 1 February 2022, the payment term between companies will be limited to 60 calendar days as of the receipt of an invoice, regardless of the size of the company. The default payment term remains 30 calendar days. Companies can still deviate from this default term but can never exceed the 60-day period. This period may only be extended by a Royal Decree in specific sectors.
Another change is that the acceptance and verification procedure should be included in the maximum payment term of 60 days. This means that the payment term can no longer be de facto prolonged. Furthermore, parties will not be able to contractually define the date of the receipt of an invoice. It is not yet clear how the ‘date of the receipt of an invoice’ will be practically enforced. Most companies use different systems to invoice their customers, meaning that pinpointing the exact day of the receipt of an invoice will not be as straightforward.
Lastly, the interest for late payment (currently 8%) and a lump sum compensation of 40 EUR will be automatically due in the event of late payment.
Any contractual clause providing a payment term of more than 60 days will be deemed “unwritten”. However, the consequence of an unwritten clause is not specified in the Act. This could potentially lead to the application of the default payment term of 30 days.
With its intervention, the legislator wanted to protect (mainly) SMEs (suppliers) from contractually stipulated excessively long payment terms. However, often the situation is reversed, and it is, on the contrary, the supplier (large company) that grants its customer (small or SME) longer payment terms. This scenario does not seem to have been taken into account by the legislator, although it occurs frequently. In our opinion, however, it cannot have been the intention of the legislator to prohibit the supplier from giving its customer some air by granting longer payment terms.
Moreover, different options (such as an initial 60 days payment term, however with an extension for an additional period of 30/45/60 days [with or without cause: e.g. in case the debtor would encounter payment difficulties]), purchase with a value date, deferral of the invoice date) allow to extend the payment term. Therefore, a case-by-case analysis seems useful in order to (i) determine whether the Act has been violated and to (ii) assess the consequences of this violation, where applicable.
Finally, the Act also raises questions about whether or not the new rules will apply to ongoing existing agreements or agreements subject to foreign law. It remains to be seen how these uncertainties will be handled in the future.
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