ORDER to promulgate the Act on Prevention of Late Payment (ZPreZP)

Transcription

1 Legal notice All effort has been made to ensure the accuracy of this translation, which is based on the original Slovenian text. All translations of this kind may, nevertheless, be subject to a certain degree of linguistic discord. In case of any uncertainties regarding the English translation the questions may be addressed to: Ministry of Finance Financial System Department Župančičeva Ljubljana Slovenia Phone: Fax: gp.mf@gov.si The original text of this act is written in the Slovenian language; in case of any doubt or misunderstanding, the Slovenian text shall therefore prevail. Original text can be found in Official Journal of Republic of Slovenia, no: 108/10, or on web page: Act on Prevention of Late Payment (ZPreZP), page In accordance with the second indent of paragraph 1 of Article 107 and paragraph 1 of Article 91 of the Constitution of the Republic of Slovenia, I hereby issue the following ORDER to promulgate the Act on Prevention of Late Payment (ZPreZP) I hereby promulgate the Act on Prevention of Late Payment (ZPreZP), adopted by the National Assembly of the Republic of Slovenia at its session held on 4 March No.: / Ljubljana, 14 March 2011 Dr Danilo Türk, s. President of the Republic of Slovenia ACT ON PREVENTION OF LATE PAYMENT (ZPreZP) I GENERAL PROVISIONS Article 1 (Contents of the Act) (1) This Act shall lay down the measures to combat non payment.

2 (2) This Act shall apply to contracts between economic operators or between economic operators and public authorities under which one party undertakes to supply the goods or services (hereinafter: the creditor) and the other party undertakes to comply with its financial obligations (hereinafter: the debtor). (3) The provisions of this Act shall not apply where insolvency proceedings are initiated against the debtor pursuant to the act governing insolvency proceedings. (4) This Act shall transpose Directive 2011/7/EU of the European Parliament and of the Council of 16th February 2011 on combating late payment in commercial transactions (OJ L 48 of 23 February 2011, p. 1) into the legislation of the Republic of Slovenia. Article 2 (Economic operators and public authorities) (1) For the purposes of this Act, economic operators shall mean commercial companies and sole traders and other legal and natural persons engaging in gainful activity as well as other legal persons engaging periodically or predominantly in gainful activity in compliance with regulations in the case of contracts for the performance of such gainful activity. (2) For the purposes of this Act, a public authority shall be: an authority of the Republic Slovenia or of a local self-governing community, a public fund, a public agency, a public institute, a public utility institute and - other legal entity governed by public law. (3) For the purposes of this Act, other legal entity governed by public law shall be any person: - who is established for the pursuit of activities in the general interest having an industrial or commercial character, - who is a legal entity and c) who is financed at more than 50 per cent from the budgets of the authorities of the Republic of Slovenia or of local self-governing communities, or other persons governed by public law, or subject to management supervision by those authorities, or having a managerial or supervisory board, more than half of whose members are appointed by authorities of the Republic of Slovenia and of local self-governing communities, or by other persons governed by public law. (4) This Act shall not apply to the Bank of Slovenia which exercises its exclusive competence under the act governing the Bank of Slovenia or other laws or regulations of the European Union which lay down the exclusive competence of the Bank of Slovenia. Article 3 (Amount due) Amount due shall be composed of a principal amount, which has been agreed upon and should have been paid within a contractual or statutory time limit, and all taxes and other compulsory levies indicated in the invoice or other equivalent document representing a claim for payment (hereinafter: the invoice). Article 4 (Grossly unfair contractual terms) (1) A grossly unfair contractual term shall be an agreement which, in relation to the creditor, determines in a grossly unfair manner the date or period for payment, the rate of interest for late payment or the compensation for recovery costs. (2) There is an irrefutable presumption that a grossly unfair contractual term relates to - exclusion of compensation for the costs of recovery, - exclusion of interest for late payment,

3 - the time limit for payment exceeding 120 days when the debtor is an economic operator, - the time limit for payment exceeding 30 days when the debtor is a public authority, - a term determining the invoice date. (3) In determining whether a contractual term is grossly unfair to the creditor under the presumption from the preceding paragraph, all circumstances of the case shall be considered, including: any gross deviation from good commercial practice, contrary to good faith and fair dealing; the principle of fairness and good faith, the principle of prohibition of abuse of rights and other principles of civil law; the nature of the product or the service; and whether the debtor has any objective reason to deviate from the provisions of this Act. (4) Grossly unfair contractual terms shall be void. (5) Legal interest to bring an action for nullity of grossly unfair contractual terms shall also exist in a commercial association established in accordance with the act regulating commercial companies, independent professional business organisations and other organisation which is a legal person established for the purpose of safeguarding the rights and interests of its members, provided that such organisation is established at least one year before the date of the filing of the suit and is a going concern. II. DETERMINING THE PAYMENT PERIOD AND OCCURRENCE OF LATE PAYMENT Article 5 (Payment period) (1) The payment period for transactions between economic operators shall not exceed 60 days. The payment period may exceptionally be longer than 60 but not more than 120 days if the payment period is agreed in writing and if such payment period does not represent the agreement from the preceding Article. (2) Unless otherwise provided by another act, the period from the preceding paragraph shall start to run from: the date agreed for receipt of goods or supply of services if the date of receipt of goods or supply of services is agreed upon and the goods are received and the services are supplied before or at the agreed date, the date of receipt of goods or supply of services when the date of receipt of goods or supply of services has been agreed upon but the goods are received or services are supplied with a delay, or when no date for receipt of goods or supply of services is agreed. Article 6 (Payment period when the debtor is a public authority) (1) When the debtor is a public authority, the payment period shall not exceed 30 days. (2) Unless otherwise provided by another act, the period from the preceding paragraph shall start to run from: the date agreed for receipt of goods or supply of services if the date of receipt of goods or supply of services is agreed upon and the goods are received and the services are supplied before or at the agreed date, the date of receipt of goods or supply of services when the date of receipt of goods or supply of services has been agreed upon but the goods are received or services are supplied with a delay, or when no date for receipt of goods or supply of services is agreed. Article 7 (Determining the payment period when no payment period has been agreed)

4 (1) If the period for payment of the debtor s liability has not been agreed, the debtor shall comply with his financial obligations within 30 days of receipt of the invoice. (2) Notwithstanding the preceding paragraph, the debtor shall comply with his liability: within 30 days of the date of receipt of goods by the debtor or the date of supply of services if the date of receipt of invoice is disputed; within 30 days of receipt of goods or supply of services if the debtor receives the invoice before receiving the goods or services; or within 30 days of the date of inspection of goods or services if the inspection of goods or services is agreed or is required by the law and the debtor receives an invoice prior to the inspection date. (3) The time limit within which the debtor is obliged to inspect the goods as specified in item three of the preceding paragraph shall not exceed 30 days. The contracting parties may agree in writing that the time limit for inspecting the goods or services may exceed 30 days of such time limit does not imply grossly unfair contractual term. (4) When the debtor is a public authority, the extended time limit for inspection from the preceding paragraph shall be defined by the contract documents. Article 8 (Occurrence of late payment) The debtor shall be considered to be late with payment under the provisions of the act governing contractual obligations. III CONSEQUENCES OF LATE PAYMENT Article 9 (Application of the act governing contractual obligations) The provisions of the act governing contractual obligations shall apply to the consequences of late payment. Article 10 (Interest for late payment when the debtor is a public authority) Notwithstanding the preceding Article, the creditor and the debtor, which is a public authority, may not agree on a rate of interest for late payment which is lower than the rate of interest determined by the law governing the statutory interest for late payment. Article 11 (Compensation for recovery costs) (1) When the debtor is late with payment, the creditor shall be entitled to request compensation for recovery costs from the debtor for each claim without prior notice. (2) Recovery costs from the preceding paragraph shall be EUR 40. (3) The provisions of paragraphs (1) and (2) of this Article shall not restrict or exclude the right to compensation for recovery costs which the creditor is entitled to request under the contract or other regulations. (4) The costs of recovery shall not be included in enforcement costs determined by the act governing enforcement procedure. (5) The creditor s right referred to in paragraph (1) of this Article shall become statute-barred within three years from the date of the occurrence of late payment. IV. MULTILATERAL OFFSET 1. Multilateral offset and operation of multilateral offset mechanisms Article 12

5 (Multilateral offset) (1) Multilateral offset is a method for terminating direct and indirect mutual financial obligations. (2) Multilateral offset may also include undue financial liabilities subject to a written agreement between the contracting parties. Article 13 (Principles of operation of multilateral offset mechanism) Operators of multilateral offset mechanism shall ensure the following: that these mechanisms provide for a safe, complete and timely multilateral offset execution; that multilateral offset participants are provided with evidence of the executed multilateral offset procedure; electronic storage of evidence of carried out multilateral offsets; equal status of multilateral offset participants; uninterrupted system operation; and safeguarding professional secrecy by multilateral offset participants. Article 14 (Rules of the multilateral offset mechanism) (1) Pursuant to the principles of multilateral offset mechanism referred to in the preceding Article, multilateral offset mechanism operators shall adopt the following general rules of the multilateral offset mechanism in order to define the following: the procedure of notifying their financial obligations to the system of compulsory multilateral offset, prices of services, multilateral offset mechanism schedule; the method, rectification and cancellation of entries; and data processing in the system. (2) The general rules of multilateral offset mechanism shall be published on the multilateral offset mechanism operators' web page. Article 15 (Accuracy of entries and debtor s responsibility) (1) Responsibility for the accuracy of entries of financial obligations into the system, rectification of errors in recorded notifications and the damage resulting from incorrectness of entered data shall be borne by the debtor. (2) Multilateral offset mechanism operators shall not correct multilateral offset results arising from incorrect data provided in the notification of the debtor's financial obligations in the multilateral offset system. (3) Multilateral offset mechanism operators shall be liable for the damage resulting from incorrect processing of data on financial obligations provided in the notification of the debtor's financial obligations in the multilateral offset system or from the failure to comply with the rules referred to in the preceding Article. 2. Compulsory multilateral offset Article 16 (Compulsory notification of financial obligations for multilateral offset) (1) On the occurrence of late payment, the debtor shall notify his financial obligation in the first round of the compulsory multilateral offset with the compulsory multilateral offset operator (hereinafter: operator) which shall

6 take place after the date of occurrence of late payment. The notification shall be considered to have been made when it is accepted by the system at the moment when the operator closes the entry for a particular offset round. (2) Notwithstanding the preceding paragraph, the debtor shall not be obliged to notify the following financial obligations to the compulsory multilateral offset: financial obligations the payment of which is secured by payment security instruments except financial obligations under bills of exchange which are subject to notification for multilateral offset pursuant to Article 18 of this Act; financial obligations that are the subject of litigation before the court of competent jurisdiction or of enforcement procedure. (3) The operator shall carry out a compulsory multilateral offset of financial obligations once a month. (4) The operator shall provide creditors with the possibility of checking the notified financial obligations of their debtors in individual offset rounds through online IT solution. (5) The remaining portion of the financial obligation that the debtor was unable to offset pursuant to paragraph (1) of this Article may be settled in a different manner, including by means of a new notification of the financial obligation for multilateral offset with the multilateral offset mechanism operators. Article 17 (Notification of financial obligations to the compulsory multilateral offset, rates and duties of the operator) (1) The debtor shall notify his financial obligations to individual creditors. The notification shall include the following: the creditor s tax identification number; the date and account number; the date of occurrence of late payment; the amount of outstanding financial obligation as per the invoice; and the reference number of the notification. (2) By notifying his financial obligation to the compulsory multilateral offset system, the debtor shall lose the right to object to the tax foreclosure decision in accordance with the provision of the act governing the tax procedure relating to the objection of the debtor's debtor. (3) The online IT solution provided by the operator shall enable the Tax Administration of the Republic of Slovenia to check the following data on financial obligations notified by debtors in individual offset rounds by creditor: the creditor s tax identification number; the debtor s tax identification number; the date and account number; the amount of outstanding financial obligation as per the invoice; and the date of occurrence of late payment; and the reference number of the notification. (4) In the case of obligation to a particular tax debtor, The Tax Administration of the Republic of Slovenia may notify the operator of the exemption of individual notified obligations from the multilateral offset system. The operator shall not include the obligation which is the subject of the Tax Office s notification in the multilateral offset system. (5) The operator shall set the rates and rules of the compulsory multilateral offset mechanism.

7 (6) The rates and the rules referred to in the preceding paragraph shall begin to apply when they are approved by the Government of the Republic of Slovenia. (7) Pursuant to paragraph (4) of this Article, the minister responsible for finance shall set the time limit within which the Tax Administration of the Republic of Slovenia should notify the operator of the exemption of a particular notified obligation from the compulsory multilateral offset system and shall lay down the contents, form and method of exchanging the data that are required for exemption from the compulsory multilateral offset system. Article 18 (Compulsory notification of financial obligations under bills of exchange for multilateral offset) (1) A drawee, who is an economic operator or public authority, shall notify his financial obligation under a bill of exchange electronically to the first round of the compulsory multilateral offset that follows the date of occurrence of late payment if the bill of exchange is: 1. recorded in the register referred to in Article 19 of this Act and the financial obligation under such bill of exchange remains outstanding within 15 days of registration; 2. issued as a promissory note under the act governing bills of exchange, and the drawee fails to meet his obligations thereunder on maturity in full or in part; 3. issued as a "no protest" bill under the act governing bills of exchange, and the drawee fails to meet his obligations thereunder on maturity in full or in part; 4. payable from cash balances on the user's payment account held with a payment services provider according to the act governing payment services, and cash balances held with the provider of payment services are insufficient to honour the bills. (2) The drawee referred to in the preceding paragraph shall be a person liable to settle a financial obligation under a bill of exchange pursuant to the act governing bills of exchange. V. REGISTER OF BILLS OF EXCHANGE PROTESTED FOR NON PAYMENT Article 19 (Register of bills of exchange protested for non payment) (1) The register of bills of exchange protested for non payment (hereinafter: register) shall be a uniform centralised database in which notaries public shall, pursuant to the act governing bills of exchange, record the bills of exchange protested for non payment when the bills of exchange are issued by economic operators. (2) The register shall be set up and managed by the Agency of the Republic of Slovenia for Public Legal Records and Related Services (hereinafter: AJPES). Article 20 (Entry in the register) (1) AJPES shall enable the notary public filing a protest for non-payment of a bill of exchange to enter the bill of exchange protested for non payment in the register, (2) Each entry in the register shall include the following: the debtor s tax identification number; the drawee s name or company name, registered office or business address; the drawee s registration number if the drawee is a legal person, entrepreneur or natural person engaging in gainful activity and is registered in the Business Register of Slovenia; the date of issue of the bill of exchange which is the subject of registration; the date and number of the bill of exchange protested for non payment which is the subject of registration; indication of the bills payable which are the subject of registration; and

8 the personal name and registered office of the notary public filing the request for registration. (3) AJPES shall ex officio obtain the data referred to in the preceding paragraph from the existing official records kept by duly authorised authorities. (4) The data specified in paragraph (2) of this Article shall be kept on the register from the date of the first notification of honouring of bills and for additional two years from the date of protest if no bills have been honoured. AJPES shall enable the notary public who filed a protest for non-payment of a bill of exchange to strike the bill of exchange protested for non payment off the register following a notification from the drawee, issuer of the bill of exchange or payee that the bill has been honoured. (5) AJPES shall, in agreement with the Government of the Republic of Slovenia, set the rates for fees for registration of data and detailed rules on setting up and keeping a register and on registration procedure. Article 21 (Access to the registered data) The registered data shall be public and available free of charge at AJPES s web page. VI. CODE OF CONDUCT Article 22 (Code of Conduct) (1) Interest groups of economic operators may adopt a code of conduct for their members in order to ensure prompter payments. (2) Interest groups of economic operators may publish monthly lists of prompt payers in the media and on their web pages based on reports received from their members when the code referred to in the preceding paragraph lays down the method of notification and prompt payer list publication. VII MONITORING OF THE IMPLEMENTATION OF THE ACT Article 23 (Monitoring) The implementation of this Act shall be monitored by inspectorates and other bodies within the scope of their responsibilities. Article 24 (Access to information) For the purpose of monitoring under the provisions of this Act, the operator shall allow the supervisory bodies to examine the notifications by individual debtors. VIII PENAL PROVISIONS Article 25 (Offences) (1) A fine of EUR 100 to EUR shall be imposed on the economic operator or a public authority other than an authority of the Republic of Slovenia or a local self-governing community for a breach of duty of first notification of its amount due to the compulsory multilateral offset pursuant to Articles 16 or 18 of this Act. (2) A fine of EUR 50 to EUR 5,000 shall be imposed on the responsible person of an economic operator or the responsible person of a public authority for committing an offence referred to in the preceding paragraph. Article 26 (Decision by supervisory authorities on offences)

9 The fines laid down by this Act may also be imposed under an expedited procedure in an amount which is higher than the minimum prescribed amount; however, they shall not exceed the maximum fines laid down for offences under this Act. IX. TRANSITIONAL AND FINAL PROVISIONS Article 27 (Application of this Act when no deadline for compliance is set) When a contract concluded prior to the effective date of this Act sets no deadline for compliance with financial obligations and the creditor has already complied with his contractual obligation and the debtor is still not behind in payment of his financial obligations, the time limits specified in Article 7 of this Act shall start to run from the effective date of this Act. Article 28 (Application of this Act to the consequences of late payment) (1) This Act shall not regulate the consequences of late payment of financial obligations if late payment occurred before the effective date of this Act. (2) Notwithstanding the preceding paragraph, the debtor shall first notify his financial obligation, in respect of which he was behind in payment already before the effective date of this Act, to the compulsory multilateral offset system pursuant to Article 16 within 30 days of the effective date of this Act. Article 29 (Choice of operator and provisional method of notifying financial obligations) (1) The Government of the Republic of Slovenia shall initiate the procedure for granting concession to operate the compulsory multilateral offset mechanism referred to in Chapter IV.2 of this Act. (2) Until the completion of the procedure from the preceding paragraph, the operator referred to in Chapter IV.2 of this Act shall be AJPES; however, no longer than until 31 December (3) Notwithstanding the provision of paragraph (1) of Article 17 of this Act, debtors shall notify their obligations specified in Article 16 of this Act as a sum total of their financial liabilities to individual creditors three months after the effective date of this Act. Debtors shall break down their total financial liabilities to individual creditors in their books by using the data specified in paragraph (1) of this Act. Article 30 (Adoption of implementing regulations) The minister responsible for finance shall issue the decision referred to in paragraph (7) of Article 17 of this Act within one month of the effective date of this Act. Article 31 (Entry into force) This Act shall enter into force on the day following its publication in Uradni list Republike Slovenije, and the provisions of paragraphs (1), (3) and (4) of Article 17 and the provisions of Chapter V of this Act shall begin to apply three months following the entry into force of this Act. No.: /11-6/54 Ljubljana, 4 March 2011 EPA 1612-V National Assembly of the Republic of Slovenia Miran Potrč, m.p. Vice-President