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A new year, new rules

  • Belgium
  • Commercial agreements

03-01-2022

 

Combatting loopholes to circumvent the maximum payment term in B2B transactions

From February 1st, 2022, new amendments to the Belgian Law of 2 August 2002 on combating late payment in commercial transactions (hereinafter: the “Law of 2 August 2002”) will enter into force. With these amendments, the Belgian legislator aims to achieve a stronger business-to-business ("B2B") protection against the current loopholes whereby it is still possible to circumvent the legal maximum payment term.

 

Current provisions and their pitfalls

If no date or term for payment is specified in your B2B agreement, payments must be made within a period of 30 calendar days following the date of receipt of the invoice or of the receipt of the goods or services, whichever is the latest. You can contractually extend or reduce this legal payment term in so far it is not ‘manifestly unfair’ towards the creditor, taking into account aspects such as good business practice and the nature of the goods or service. The only limit is that you cannot agree on a payment deadline exceeding 60 calendar days if your creditor is a Small Medium Enterprise (“SME”) and you are not an SME.

Under the current legislation, loopholes are available to circumvent the legal B2B protections by artificially elongating the payment term to its legally allowed maximum.

 

  • First, a debtor in a strong position could contractually ‘stretch’ the legal payment term by including a verification period of maximum 30 days for its goods or services. The payment term only starts after that verification period. As a result, the maximum period could be extended with an additional 30 days and could therefore go up to 90 calendar days. For SME creditors, this could pose threats to smooth cash flows, which could lead to liquidity problems.
  • Second, the Law of 2 August 2002 tolerates to artificially delay the invoice date postponing the start of the date of the legal payment term. Practice showed that some debtors did not provide all required invoicing information and thus consciously delayed the date in which the goods or services could actually be invoiced by the creditor.
  • Another difficulty is the problem of actually claiming and obtaining the interest and compensation in case of late payment. Many creditors choose not to request any late payment interest, for example to preserve the commercial relationship or not to worsen the situation already in place.

 

 New rules to the rescue

 

  1. The legislator closed the loophole of stretching the maximum payment term to 90 calendar days by including the verification period (if the agreement provides for it) in the legal payment term. The payment term commences either on the invoice date, or at the time of receipt of the goods or services. Hence, the payment term will in principle be 30 calendar days, with a maximum extension by the parties up to 60 calendar days in total.
  2. The date of receipt of the invoice can no longer be contractually determined. A debtor will be legally required to provide its creditors with all the necessary invoice information at the latest on the date of delivery of the goods or services. As a result, the creditor can immediately issue an invoice after delivery so the legal payment term can start right after it.

 

Scope

Be aware that these new provisions apply to all commercial contracts in B2B transactions, regardless of the size of the company and to both private companies and public authorities.

From the 1st of February 2022 onwards, all (existing) contractual clauses stipulating a payment term of more than 60 calendar days or a verification period on top of the 60-day payment term, must be adjusted to be in accordance with the new legislation. Any terms in conflict with these new provisions will be deemed null and void, meaning that the legal payment term of 30 calendar days will be applicable.

For certain sectors, derogations to the above could be granted by way of a Royal Decree. So far, no specific Royal Decrees have been issued.

 

If you have any questions or uncertainties regarding this topic, please do not hesitate to get in touch with us.