On the one hand, Italy implemented the EU Directive 2011/7/EU of February 16, 2011 (which replaced the EC Directive 2000/35/EC of June 29, 2000) on combating late payments in commercial transactions, by amending the Legislative Decree No. 231/2002 (that previously implemented Directive 2000/35/EC).
On the other hand, special provisions have been issued, some of which only apply to contracts of sale of food and agricultural products, while others apply to all business transactions (Article 62 of Law Decree No. 1/2012, implemented and amended by Law No. 27/2012, by Law Decree No. 179 of 18 October 2012 and by Law No. 221 of December 17, 2012; Ministerial Decree No. 199 of 2012). As far as the new rules on late payments are concerned, the main principles are the following.
In the absence of any contractual provision to the contrary, the terms of payment in all business transactions shall be 30 days from receipt of the invoice (or from delivery, if the date of receipt of the invoice is uncertain). Parties can agree on longer terms of payment; however, payment terms longer than 60 days are not allowed in transaction with public authorities; they can be agreed upon between private undertakings, but courts may declare the relevant provisions as null and void, if they appear to be seriously iniquitous for the creditor (as per an evaluation to be made by Italian courts by assessing certain elements, on a case by case basis).
Should the terms provided by law not be respected, the creditor is entitled to interests equal to the interest rate applied by the European Central Bank to its most recent main refinancing operations, plus 8 percentage points. The above mentioned interest rate cannot be derogated in transactions with public authorities, while it can be derogated in agreements between private undertakings (but the relevant contractual provisions can be declared seriously iniquitous for the creditor by Italian courts).
Moreover, the creditor is entitled to reimbursement of costs incurred for the recovery of amounts not timely paid, without the need for the formal notice. A minimum amount of € 40,00 is due to the creditor to that aim, save his right to prove further damages.
It is desirable that the Italian public authorities will quickly start complying with these payment terms, considering that until the end of the year 2012 the average payment terms applied by them was of 180 days. At present (considering that the new rules came into force only on January 1st, 2013) several private undertakings are expressing their concern, fearing that the public authorities they supply will keep paying them very late (counting on the fact that no sanction is provided for violation of the above mentioned rules), while – on the contrary – they will be requested to pay their suppliers within terms of 60 days, in compliance with the new rules.
Of course, everything will depend on the interpretation and application of these rules by national courts. As far as Article 62 of Law Decree No. 1/2012 and Ministerial Decree No. 199 of 2012 are concerned, mandatory terms of payment have been introduced for contracts of sale of food and agricultural products (30 days for perishable goods and 60 days for the others) and a higher interest rate (ECB rate, plus 10 points).
In addition, Article 62 requires contracts of sale of food and agricultural products to be concluded in writing and to include certain specific provisions (e.g. on quantity, price, terms of delivery, terms of payment, etc.). A further provision is included in Article 62, applicable not only to contracts of sale of food and agricultural products, but also to all the other business transactions, which prohibits discriminatory conditions and other unfair commercial conducts.
Fines are provided in case of violation of the above mentioned rules, up to € 500.000,00 and a special function to monitor as well as to apply these sanctions is attributed to the Italian atitrust authority.
Last bu not least, the Ministerial Decree No. 199 of 2012 expressly provides that the rules of Article 62 are internationally mandatory, i.e. that they apply to all cases where delivery takes place in Italy, whatever law applies to the relevant business transaction. However, this principle has been criticized, considering that the Ministerial Decree has gone beyond the scope and the intentions of the legislator; in fact, the internationally mandatory character of the rules has not been provided by the law (i.e. by Article 62), but by a lower source of law (i.e. the executive Ministerial Decree 199/2012). It is likely that such Ministerial Decree will be amended in the near future and, in any case, it will be essential to see how these rules will by applied by Italian courts.
Silvia Bortolotti, Council Member and Secretary General IDI.