On 8 February 2013, the Sejm enacted a new law on
the terms of payment in commercial transactions. As
argued in the rationale for the bill, the purpose of the
legislation is to combat the growing problem of late
payments by introducing instruments improving the
effectiveness of payments in transactions between
undertakings and between undertakings and public
authorities. Consequently, the new law is expected to
contribute to creating a safer business environment.
Without any doubt this is good news for businesses battling against unreliable contractors effecting their
payments long after the agreed deadlines, thus
adversely affecting financial liquidity and
profitability of businesses.
The need to adopt a new law was due to the required
incorporation into the national legislation of a new
Directive 2011/7/EU of the European Parliament and
of the Council of 16 February 2011 on combating
late payment in commercial transactions that
replaced the previously effective Directive
2000/35/EC of the European Parliament and of the
Council of 29 June 2000, incorporated into Polish
legislation under the Act on Terms of Payment in
Commercial Transactions of 12 June 2003 (Journal
of Laws No. 139, item 1323, as amended).
Since the previously effective legislation on terms of
payment in commercial transactions turned out to be
too lax, the new law provides for a number of
solutions designed to help reduce late payments and
discipline the parties to commercial transactions to
apply short terms of payment.
Firstly, it needs noting that compared to the
previously effective regulations the new law applies
to a broader range of entities. In addition among
others to undertakings, entities engaging in business
activity, the self-employed, branches and
representative offices of foreign undertakings, and
entities required to apply the Public Procurement
Law, the new regime applies also to undertakings
organised in EU Member States and EFTA Member
States – parties to the Agreement on the European
Economic Area or in the Swiss Confederation. The
scope of the new law, similarly to the previous one,
does not include consumers.
The second significant revision relates to the
modification of the principles for setting interest
applicability dates and of the interest calculation
procedure. Under the previous regime, creditors had
the statutory right to request statutory interest, in a
situation when the parties provided for a term of
payment in excess of 30 days under the agreement,
for the period starting on the 31st day after the nonpecuniary performance is effected by the creditor
and an invoice or bill is delivered to the debtor until
the date of payment, however, no longer than to the
maturity date of the pecuniary performance (the so-
called trade credit charge). The right to request
interest for the above period pertained also to a
situation when the parties did not set any term of
payment under the agreement. The new law retains
the above rights but excludes the application of the
former to debtors being healthcare entities.
Next, it must be noted that the new law introduces a
principle that the term of payment expressly laid
down under the agreement must not exceed 60 days
from the date of delivery of the invoice or bill to the
debtor confirming that the goods have been supplied
or the services provided. Yet, the parties will be able
to agree a different date providing that it does not
contravene the social and economic purpose of the
agreement or public policy and is objectively
justified taking into account properties of the goods
or the service. If the above requirements are not
fulfilled, then agreeing a term in excess of 60 days is
deemed default on payment, and the creditor is
entitled to late-payment interest at a rate based on the
provisions of the Tax Ordinance (11.5% in March
2013) unless the parties agree a higher rate of
interest (providing of course that the creditor duly
performs its contractual and statutory obligations).
Under the new law, in the event of a transaction
between undertakings and public authorities, the
term of payment may not exceed 30 days or 60 days
in the case of healthcare entities. However, the 30-
day term may be extended to up to 60 days if such
extension is objectively justified by the properties or
specific elements of the agreement. Upon expiry of
the term, the creditor will be entitled to late-payment
interest.
The new legislation also provides for a possibility to
agree a term of up to 30 days for examination of
compliance of the goods or the service with the
agreement, and a flat-rate compensation on account
of recovery costs of amounts arising under the new
law, payable by the debtor to the creditor, being the
PLN equivalent of EUR 40.
It is significant that claims arising under the new
legislation will be pursued in the course of
proceedings by writ of payment (postępowanie
nakazowe), which may considerably decrease the
time of enforcing claims and reduce the costs of the
proceedings.
The new law comes into force upon expiry of 30
days from the date of its promulgation. It must be
stressed that the new regime will not apply to
agreements concluded prior to the new legislation’s
effective date.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Św. Mikołaja 7
50-125 Wrocław
Tel. +48 71 337-6700
Fax +48 71 337-6701
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of certain recent legal
developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any decision as to a particular course of
action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser
should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified.