As of January 1, 2020 changes in the collection of claims in commercial transactions
On January 1, 2020, amendments to the Act on Counteracting Excessive Delays in Commercial Transactions (previous name: Act on Payment Dates in Commercial Transactions) entered into force. The aim of the amendment is to fight against the so-called „black market” payment bottlenecks, i.e. late payment by counterparties, in particular large companies. How does the way of claiming in commercial transactions change?
- higher compensation costs for claims
The legislator has abandoned the uniform rate of compensation for the recovery of claims (equivalent to 40 euros) in favour of a three-stage compensation, depending on the amount claimed:
- the equivalent of EUR 40 where the value of the cash benefit does not exceed PLN 5 000,
- the equivalent of EUR 70 if the value of the cash benefit is higher than PLN 5 000 but lower than PLN 50 000,
- the equivalent of EUR 100 if the value of the cash benefit is equal to or higher than PLN 50 000.
The aim of this amendment is to bring the costs of the lump sum compensation closer to the actual costs of recovery, which increase with the amount of the claim, and to motivate businesses to make timely payments for their obligations.
The claim for compensation does not require the creditor to prove that he has borne the recovery costs. However, if the trader has incurred such costs in excess of the compensation, he shall be entitled to claim payment of that excess as well, providing evidence of their justified incurrence.
The compensation shall be converted into zlotys using the average euro exchange rate announced by the National Bank of Poland on the last working day of the month preceding the month in which the claim became due.
- non-transferability of compensation costs
The amendment to the Act abolishes the transferability of claims for compensation for claims.
This solution is intended to prevent the phenomenon of selling cumulative claims against debtors (often small interim claims) to entities dealing with their professional investigation, which are often equal to or lower than the sum of the lump-sum recovery costs.
- higher statutory interest for delay in commercial transactions
The statutory interest rate for delay in commercial transactions increased from 9.5 % to 11.5 % per year. Until now, statutory interest for delay in commercial transactions was calculated by adding together the reference rate of the National Bank of Poland (currently 1. 5%) and 8 percentage points. After the amendment, the interest will be equal to the sum of the reference rate of the National Bank of Poland and as much as 10 percentage points.
The legislator indicates that the increase in the interest rate is intended to discourage entrepreneurs from lending their business by deferring payment of liabilities. Since the interest rate to date was lower than the average cost of obtaining a working capital loan, the stronger entrepreneurs were indebted to their counterparties, which caused payment congestion.
Interest in the indicated amount is due to an entrepreneur in commercial transactions who has fulfilled his service and has not received payment on the indicated date – unless the parties have reserved higher interest for this circumstance (maximum 14%).
The above change does not apply to public entities which are medical entities, which will be obliged to pay interest in the current amount, i. e. 9,5%.
- the creditor’s entitlement in the event of a grossly unfair payment period
As a rule, the payment period specified in the contract should not exceed 60 days. A longer period is possible for contracts concluded between large traders if it is not grossly unfair to the creditor. The burden of proving that the reserved payment period is not grossly unfair is on the debtor. If a term is considered grossly unfair, the creditor has the right to demand, among others statutory interest for delay in commercial transactions from the 61st day after the delivery of the invoice/accounting confirming the delivery of goods or service.
The amendment introduced an extended period of time to pursue the above claims – the creditor has the right to demand a finding that the payment period was grossly unfair within 3 years from the date on which payment was made (or should have been made in accordance with the Act).
Moreover, a claim cannot be waived to establish that the payment period indicated in the contract is grossly unfair to the creditor.
- security of claims
From January 1, 2020, it will be easier to obtain security of claims in the case of pursuing payment claims for commercial transactions of no more than PLN 75,000. We wrote about changes in this respect on October 23, 2019 (https://www.dudkowiak.com/blog/good-news-for-entrepreneurs.-from-2020,-it-will-be-easier-to-claim-payments-from-unreliable-contractors.html).
The new provisions apply to commercial transactions concluded after December 31, 2019.
Statutory interest for delay in commercial transactions in an increased amount, i. e. 11.5% are due from claims due after January 1, 2020.
Compensation for the recovery of claims due after January 1, 2020 is already available to creditors in the new amount (equivalent of 40, 70 or 100 euros).
The new rules on the provision of security shall not apply to security proceedings initiated before January 1, 2020 for which no security order was issued before that date.