In commercial relationships between a large enterprise and a small and medium-sized enterprise (SME) or a self-employed person, practice shows that payment terms longer than 30 days are ‘imposed’ by the large enterprise. The negotiating position is not sufficiently balanced to prevent this. During the corona crisis, it turned out that a number of large enterprises unilaterally extended the agreed payment term. On top of a turnover decrease resulting from the corona crisis, long payment terms caused for a (financial) challenge for various SMEs.
In order to better protect SMEs, a bill was passed on 29 March 2022, which halves the payment term of large enterprises to SMEs from 60 to 30 days. Large enterprises can no longer deviate from the payment term and sanctions are linked to non-compliance. The law will enter into force on 1 July 2022.
SME or large enterprise
Whether an enterprise is understood to be an SME or a large enterprise, is to be determined on the basis of criteria of the accounting and reporting rules: the value of the assets is higher than € 20 million, the turnover of the enterprise higher than € 40 million, and the enterprise has more than 250 employees. If at least two of the three questions are answered positively with regard to the past 2 years, the enterprise is understood to be a large enterprise.
New and existing agreements
As from 1 July 2022, the shortened payment term of 30 days immediately applies to new agreements.
For existing agreements, a transition period of one year will apply. Current agreements therefore do not have to be adjusted before 1 July 2022 and may therefore be in place for another year. After the transition period, the current agreements must also be brought into conformity with the new law. This prevents large enterprises from continuing to use longer payment terms by concluding long-term contracts.
If a large enterprise applies a longer payment term as of 1 July 2022, then this longer term is void and a term of 30 days automatically applies. The large enterprise owes the statutory interest (currently 8%) for payments exceeding the 30-day term.
The obligation to pay statutory interest is enforceable for five years after the claim for payment of interest has become due for the SME. As a result, in a dependent commercial relationship, the SME may wait to claim interest until the parties no longer do business with each other. Hopefully this will function as a deterrent for large enterprises and they will stop applying long payment terms.
Early 2021, the Netherlands Authority for Consumers and Markets (the “ACM”) already opened a temporary Late-payments Hotline. Under certain conditions, an anonymous report of overdue payments can be made to the reporting center until 23 January 2023. For more information, see the website of the ACM.
Based on the reports received, the minister wants to see whether further measures are necessary, such as setting up a public supervisor. The law will be assessed in two years.