The Late Payment Directive as implemented in Italy: recent cases and possible developments

The Late Payment Directive as implemented in Italy:

recent cases and possible developments

Antonio Debiasi

Rucellai & RaffaelliMilan - Italy

RUCELLAI & RAFFAELLI Ankara, November 22, 2007 Ankara, November 22, 2007 Law Firm

Directive 2000/35/CE has been implemented in Italy through:

Legislative Decree n. 231 of October 9th, 2002

Art. 1: exclusions [6.3 Directive]

Art. 2: definitions [2 Directive]

Art. 3: responsibility of the debtor [3.1.c Directive]

Art. 4: payment of interest [3.1.a-d, 3.2 Directive]

Art. 5: interest rate [3.1.d Directive]

Art. 6: recovery of costs [3.1.e Directive]

Art. 7: grossly unfair agreements [3.3-3.4 Directive]

Art. 8: safeguard of collective interests [3.5 Directive]

Art. 9: amendments to the code of civil procedure [5 Directive]

Art. 10: sub - supply agreements [3.1.d-e Directive]

Art. 11: retention of title [4 Directive]

The Legislative Decree n. 231/2002


Principles established with respect to the payment of interest

• Interest run automatically the day following the expiration of the term of

payment;• No need for a reminder;• the “legal” term for payment is established in article 4, unless a different

term is agreed in the contract;• the terms for payment mirror the provision of Directive 35/2000:

• 30 days from receipt of invoice/request, or• 30 days from receipt of goods/services, if date of invoice/request is not certain or

invoice/request is received before the goods/services, or• 30 days from acceptance/verification – if provided – of goods/services, if

invoice/request is received before such date

• specific discipline is provided for deteriorating foodstuff

Article 4: Payment of interest


unless otherwise agreed upon between the parties

the level of interest for late payment is equal to the interest

rate applied by the European Central Bank to its most

recent refinancing operation carried out on the first calendar

day of the half year considered plus at 7 percentage points

and applies for the subsequent six month term

Article 5: level of interest for late payment


Article 5: Applicable Interest Rate


Period Reference rate % Margin % Interest rate %7.11.2002- 31.12.2002 3,35 +7 10,35

1.1.2003-30.6.2003 2,85 +7 9,85

1.7.2003-31.12.2003 2,10 +7 9,10

1.1.2004-30.6.2004 2,02 +7 9,02

1.7.2004-31.12.2004 2,01 +7 9,01

1.1.2005-30.6.2005 2,09 +7 9,09

1.7.2005-31.12.2005 2,05 +7 9,05

1.1.2006-30.6.2006 2,25 +7 9,25

1.7.2006-31.12.2006 2,83 +7 9,83

1.1.2006-30.6.2007 3,58 + 7 10,581.7.2007-31.12.2007 4,07 +7 11,07

Pursuant to article 7:

the agreement on the payment date or on the consequences of the delayed payment is void if results to be grossly unfair for the creditor, considering:

• the good commercial practice• the nature of goods/services• the contractual relationships• any other circumstance

Article 7: Grossly Unfair Agreements


Greatest difficulties in obtaining timely payments are met by private undertakings when dealing with the public administration:

the public administration often performs delayed payments, with possible damages to private companies

Payment delay in dealing with public administration



Giorni medi di pagamento nel le Regioni i tal iane

0

100

200

300

400

500

600

700

800

al 31.12.2006 al 31.03.2007 al 30.06.2007 al 30.09.2007

An example: the pharmaceutical sector


al 31.12.2006 al 31.03.2007 al 30.06.2007 al 30.09.2007

ABRUZZO 214 242 307 366

BASILICATA 143 144 198 150

CALABRIA 398 450 412 463

CAMPANIA 600 398 390 442

EMILIA ROMAGNA 397 403 359 356

FRIULI 97 96 164 96

LAZIO 401 476 448 574

LIGURIA 284 297 312 271

LOMBARDIA 245 248 282 226

MARCHE 232 249 284 258

MOLISE 763 790 448 591

PIEMONTE 217 209 261 218

PUGLIA 220 233 261 257

SARDEGNA 265 267 324 298

SICILIA 289 317 295 252

TOSCANA 146 157 209 163

TRENTINO A.A. 84 105 174 115

UMBRIA 178 185 230 199

VALLE D'AOSTA 94 115 170 115

VENETO 247 250 286 250

ITALIA 299 293 313 302

Council of State n. 4996/2007

It is void the clause of a tender which imposes the acceptance of payment within 120 days from the receipt of invoice

Derogation to the payment terms and interest rates for late payment provided for by d.lgs 231/2002 is allowed only if expressly and voluntarily agreed upon by the parties

COURT CASES DEALING WITH CLAUSES NON CONSISTENT WITH d.lgs. 231/2002


Council of State n. 43/2006

It is void the exclusion from a tender of a company in presence of an acceptance of all the clauses of the tender and of a separate declaration that void clauses are not accepted

Criteria for compensation of the occurred damage

COURT CASES DEALING WITH CLAUSES NON CONSISTENT WITH d.lgs. 231/2002


Administrative Court of Piemonte n. 3292/2007

It is void the provision in tenders of clauses imposing payment term of 150 days from the receipt of invoice and interest rate of 0,25% over the reference rate.

Action by an association of undertakings representing collective interests pursuant to art. 8 of d.lgs 231/2002

COURT CASES DEALING WITH CLAUSES NON CONSISTENT WITH L.D. 231/2002


Extraordinary transactions in the case of the settlements on

healthcare receivables:A view on the side of creditors

Settlements with the public entities


Art. 5 of the directive ensuring that an enforceable title can be obtained

on unchallenged claimsvs.

legislation and practice on credit collection in Italy

Legal Actions as a mean to fight delay payments


The case of law decree n. 277/2004 on the “Ordine Mauriziano”

(exclusion of attachment procedures and the request of interests during a certain time frame).

Issues of compliance with the EC Directive 35/2000

The extraordinary interventions


The Late Payment Directive as implemented in Italy:

recent cases and possible developments

Antonio Debiasi

Rucellai & RaffaelliMilan - Italy


Antonio DebiasiRUCELLAI&RAFFAELLIVia Montenapoleone, 1820121 Milano - Italy

The Late Payment Directive as implemented in Italy: recent cases and possible developments

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