Interest on late payments in commercial transactions 2022/2023 – planned changes in regulations

Changes regarding reports on applied payment terms

• Exclusion from the reporting obligation of companies forming tax capital groups, as well as public healthcare entities and healthcare entities in the form of capital companies established and managed by the State Treasury or local government units (entity exemptions);
• Exclusion from the reporting obligation of monetary amounts resulting from commercial transactions carried out in the scope of insurance and reinsurance activities, as well as the value of time-barred claims (subject exemptions);
• Clarification of the reporting obligation for taxpayers other than tax capital groups whose revenue in the tax year exceeded the equivalent of EUR 50 million, converted to PLN at the average euro exchange rate announced by the National Bank of Poland on the last working day of the calendar year preceding the year in which individual taxpayer data is made public;
• Extension of the deadline for submitting reports – from 31 January to 30 April each year – and introduction of the obligation for the minister responsible for the economy to publish a consolidated summary of reports by 31 August each year;
• Clarification of the content of the report – it will be necessary to report the value of monetary amounts received or fulfilled within the contractual payment term (or if the contractual term is inconsistent with the statutory term – within the maximum statutory term), instead of reporting amounts fulfilled and received counted from the invoice date. Additionally, for amounts fulfilled and received within the contractual term, only the total value will need to be reported without time-range breakdown. In contrast, values of monetary amounts not received or fulfilled within the contractual term must be reported within time intervals, indicating the delay period starting from the expiry of the contractual term;
• Enabling conversion of monetary amounts expressed in foreign currency into Polish zlotys according to the accounting principles adopted by the entity;
• Introduction of rules regarding the submission of corrections to reports;
• Clarification of the status of the entity obliged to submit the report (assigning responsibility for report submission to a duly defined manager).

Changes regarding proceedings on excessive delays in fulfilling monetary obligations

• Exclusion of delays in fulfilling monetary obligations within capital groups and transactions related to insurance and reinsurance activities from proceedings before the President of UOKiK;
• Clarification of the definition of excessive delay in fulfilling monetary obligations;
• Clarification of the legal nature of probability analysis and the principles for the minister responsible for the economy to submit reports on applied payment terms to the President of UOKiK;
• Introduction of so-called “soft calls” (without sanctions) at the disposal of the President of UOKiK;
• Exclusion of the application of Article 74 of the Act on Competition and Consumer Protection (which requires the President of UOKiK to consider only such allegations that the party could respond to);
• Changes regarding the amount, deadlines, and grounds for waiving penalties, including granting the President of UOKiK greater discretion.

Other changes

• Introduction of a one-time obligation to submit a statement on holding, obtaining, or losing the status of a large entrepreneur. Relevant entities will submit one of three types of statements depending on their status;
• Empowering executive agencies not to seek compensation. This aims to minimise situations where costs incurred by the agency in pursuing compensation exceed the amount claimed;
• Introduction of ineffectiveness of contractual clauses excluding or limiting the creditor’s right to assign receivables in overdue commercial transactions where the creditor is a small or medium-sized enterprise and the debtor is a large enterprise;
• Clarification of provisions regarding the exclusion of the application of the Act on counteracting excessive delays in commercial transactions to debts subject to restructuring or bankruptcy proceedings;
• Repeal of Article 15r1 of the so-called anti-COVID law, which excluded the possibility for contracting authorities to deduct contractual penalties stipulated for non-performance or improper performance of contracts from the contractor’s remuneration or other receivables, as well as the possibility to seek satisfaction from contract performance security.

Transitional provisions provide, among others, that commercial transactions concluded before the entry into force of the amendment shall be subject to the existing provisions. The draft assumes that the provisions will enter into force within 14 days of their promulgation, and is currently at the parliamentary stage.

Statutory interest for delay in commercial transactions 2022/2023

The changes do not modify the current rules for determining the statutory interest rate for delays in commercial transactions. The current statutory interest rate for delays in commercial transactions remains equal to the sum of the NBP reference rate plus ten percentage points as of July. Until 31 December 2022, due to the July NBP reference rate being 6%, the statutory interest for delay in commercial transactions amounts to 16%. Exceptionally, for debtors who are public entities being healthcare entities, the interest rate equals the NBP reference rate plus 8 percentage points (currently 14%). Due to further interest rate hikes since July 2022, the statutory interest rate for delays in commercial transactions in 2023 may reach approximately 17% or higher.

If you are struggling with delayed payments from contractors, unsure whether the creditor has correctly calculated interest, or require legal support to enforce claims or challenge unjustified demands – ATL LAW specialists, Anna Błaszak, Legal Adviser’s Office, remain at your disposal. We invite you to explore our legal services offer, including in the field of commercial law.