On 23 January 2014, two notices were published in the Official Gazette regarding the interest rate in the event of late payment in commercial transactions (p. 5765, nos 2014/03032 and 03033) . An amendment dated 22 November 2013 to the Act on combating late payment in commercial transactions means that, for a transitional period of two years, two interest rates will be applicable, depending on whether the contract was concluded before 16 March 2013 or concluded, renewed, or extended in duration on or after 16 March 2013.
The Act of 2 August 2002 on combating late payment in commercial transactions (the "Act") provides for a specific interest rate for transactions between companies or between companies and public authorities that lead to the delivery of goods, the provision of services or the design and execution of public works and building and civil technical works against payment.
The Act was amended on 22 November 2013, in order to implement Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions. One of the modifications concerned the applicable interest rate. The new article 5, second section, states on the one hand that the interest rate will be the interest rate of reference plus eight percentage points, rounded up to the higher half percentage point, unless the parties have agreed otherwise. On the other hand, in commercial transactions between companies and public authorities where the debtor is a public authority, the applicable interest rate is the interest rate of reference plus eight percentage points, rounded up to the higher half percentage point, irrespective of any other agreement between the parties. Before the amendment of the law, the addend was only seven percentage points.
Since Directive 2011/7/EU requires the Member States to take all necessary steps to bring its provisions into force by 16 March 2013 at the latest, the legislator provided that the Act of 22 November 2013 would enter into force with retroactive effect as of 16 March 2013. Further, the legislator has determined that, two years after 16 March 2013, the changes will automatically become applicable to payments in execution of current contracts. A similar transitional regime was also included at the time the Act came into force in 2002. With this transitional period, the legislator aims to ensure that contracts for an indefinite period or a very long period concluded before the entry into force of the Act will not continue to escape the application of the new – higher – interest rate.
In concrete terms, the transitional regime means that, for a period of two years, two different interest rates will apply, depending on whether the payment is demanded in performance of:
- a contract concluded before 16 March 2013 and not renewed or extended in duration on or after 16 March 2013; or
- a contract concluded, renewed or extended in duration from 16 March 2013 onwards.
The table below gives an overview of the applicable interest rates since 2002:
Given the fact that the Act is retroactive as of 16 March 2013, a new interest rate has been determined for 2013. Also, for the second half of 2014 and the first half of 2015, a double interest rate will have to be determined. As from the second half of 2015, a single interest rate will apply once again.