April 5, 2013 On April 5, Law 72/2013 on measures to combat the delay in the execution of obligations to pay sums of money resulting from contracts concluded between professionals and between them and authorities (hereinafter “Law 72/2003”) entered into force. may be relevant in the context of economic and financial operations that your company carries out, the novelties introduced by it aiming at: In the matter of contracts concluded between professionals (any natural or legal person who operates a for-profit enterprise) 1. The term for payment of the amounts resulting from the contracts between professionals may not exceed 60 calendar days, unless the parties have established otherwise, but the latter clause must not be abusive. 2. If the parties have not established the level of interest for late payment, the penalizing legal interest will be applied, which is established at the level of the reference interest of BNR plus 4 percentage points 3. The terms from which the penal interest begins to flow are modified 4. A maximum period of verification of the products or services is introduced which is 30 days from their receipt / provision, from which the parties may derogate provided that this clause is not abusive. 5. The parties cannot agree on the date of issuance / receipt of the invoice. Any clause stipulating a deadline for issuing / receiving the invoice is struck by absolute nullity In the matter of contracts concluded between professionals and contracting authorities 1. The payment term can be extended to a maximum of 60 calendar days if it is expressly provided in the contract 2. The penalizing legal interest is established at the level of the reference interest plus 8 percentage points 3. A maximum term of verification of the products or services is introduced which is 30 days from their reception / provision, from which it cannot be derogated unless they are expressly established in the contract and in the acquisition documentation both the term of reception as well as the objective reasons, provided that this clause is not abusive 4. The parties cannot agree on the date of issuance / receipt of the invoice. Any clause stipulating a deadline for issuing / receiving the invoice is struck by absolute nullity The contracting authority was defined as: a) any public authority of the Romanian state, which acts at central, regional or local level; b) any body governed by public law, other than the one provided in let. a), with legal personality, which was established to satisfy needs of general interest, non-profit (our note: if a series of conditions are met) But the most important change is the introduction of the notion of “abusive clauses” in contracts between professionals. This concept was until the entry into force of this law, applicable only in contracts from professionals and consumers, being only by way of exception and by analogy applied by courts and contracts between companies. Although the normative act lists by way of example as abusive clauses those that: a) exclude the possibility of applying penalizing interests or establish penalizing interests lower than the penalizing legal interests; b) fixes a delay obligation in order to operate the interest flow; c) provide a longer term from which the receivable produces interest than the one provided by law d) fixes, in the contracts between professionals and contracting authorities, a payment term longer than 60 days; e) eliminates the possibility of payment of additional damages; f) establish a term for issuing / receiving the invoice. The courts will have the right to analyze if any of the contractual clauses are abusive, respectively if they establish in a clearly unfair way, in relation to the creditor, the payment term, the level of interest for late payment or of additional damages. According to law 72/2013, the abusive clauses are struck by absolute nullity. The greatest risk will be presented by the companies that use in their activity a framework contract, these by their nature being considered by the doctrine as detrimental to the contractual balance. Consequently, we recommend paying more attention to the conclusion of contracts in order to limit the risks brought by the new normative act.