1 Why a new rule?
Consumers who pay their invoices late will have a higher level of protection from now on.
In the past, consumers were often punished by unreasonably high fines (in penalty clauses) and late interest. The legislature has now addressed this issue.
2 What are the changes?
The changes are essentially two-fold:
2.1 First (free-of-charge) reminder in a ‘durable medium’
From now on, payment reminders must be sent “using a durable medium” (letter, email).
The first reminder is linked to a 14-day period during which the consumer may not be charged any cost or interest.
2.2 Penalty clauses have no automatic application
For penalty clauses to apply, they must meet several conditions: (i) the penalty clause will apply only if a specific period has expired, and (ii) one will have to consider a maximum sum for the penalty clause.
The penalty clause applies only (i) after a first reminder has been sent and (ii) after a period of at least 14 calendar days has expired. The 14-day period starts to run from the third business day after the date of dispatch of the reminder (if the reminder is sent by ordinary post) or on the day of the transmission (if the reminder is sent by email).
Late payment interest, which is charged on the outstanding sum, may not be higher than the interest at the reference interest rate increased by 8%.
Moreover, the lump-sum compensation may not be higher than:
- EUR 20 if the outstanding balance is lower or equal to EUR 150,
- EUR 30 increased by 10% of the outstanding sum, which is applied to the tranche between EUR 150.01 and EUR 500 (if the overdue balance is between EUR 150.01 and EUR 500), and
- EUR 65 increased by 5% of the outstanding sum, which is applied to the tranche exceeding EUR 500, with a maximum of EUR 2,000 (if the outstanding balance is higher than EUR 500).
3 Who checks this?
The legislature has made the amicable recovery of overdue funds subject to a specific inspection process. The one who carries out any amicable recovery act from now on is subject to an audit carried out by the economic inspector. Moreover, a debt collector must abide by the duty to verify, so it must always check whether the conditions relating to overdue sums were complied with.
If the general conditions have not been adapted at all and/or they have not been applied incorrectly, companies may not seek late interest or other compensation. Any general conditions and contractual terms relating to overdue payments and/or payment recovery possibilities that have not been adapted may not be applied to the case in question.
Furthermore, companies will run the risk of being subject to audits and fines imposed by the economic inspectorate if they do not align themselves with the new law.