Amendment to the Anti-Delay Act – government response to the demands of the SME sector

The Ministry of Development and Technology submitted last Thursday, i.e. 10.03.22, a draft amendment to the Act on Counteracting Excessive Delays in Commercial Transactions for public consultation. The authors of the draft declare a response to entrepreneurs’ demands regarding changes in the process of submitting reports and the elimination of interpretative doubts. Furthermore, the new solutions aim to increase the efficiency of proceedings conducted by the President of the UOKiK concerning excessive delays in fulfilling monetary obligations.

“The decision to amend the anti-delay act results – primarily – from our analyses carried out in connection with the ex post evaluation of the regulation’s effects. We also listened to the demands of various entities, including the Office of Competition and Consumer Protection, which implements important tasks related to anti-delay proceedings based on the anti-delay act. We want the regulation to be consistent, more effective and flexible than it currently is. But also not to overwhelm entrepreneurs with obligations resulting from its provisions,” said the Deputy Minister of Development and Technology, Mariusz Jerzy Golecki.

Soft calls by the President of UOKiK

The amendment envisages, among others, the introduction of the so-called soft calls. “This solution has so far been successfully used in matters concerning consumer rights. Instead of immediately resorting to financial sanctions, the President of UOKiK will first be able to draw the entrepreneur’s attention to irregularities observed in their payment of obligations,” the Ministry of Development announced. “At the same time, we want to present a modern approach to administration, which emphasises flexibility and logic in action rather than bureaucracy,” the statement reads.

New procedure for reporting obligations

The draft amendment exempts from the reporting obligation: companies belonging to tax capital groups, public healthcare entities, and healthcare entities in the form of capital companies established by the State Treasury or local government units. It also extends the deadline for submitting the report from 31 January to 30 April.

There will be a change in the process of reporting fulfilled and received obligations – the values of monetary obligations fulfilled/received will be shown in the report in relation to contractual deadlines, rather than, as previously, in relation to deadlines specified on invoices or bills. The method of reporting the value of unreceived and unfulfilled monetary obligations will also change – these values will be reported with the indication of the delay period within specified time brackets. The matter of submitting corrections to the report will also be regulated.

The deadline for publishing the report based on submitted reports has been set – annually by 31 July. Changes aimed at improving the efficiency of proceedings regarding excessive delay have also been introduced. The President of UOKiK will gain greater flexibility in imposing financial penalties for excessive delays in fulfilling financial obligations towards contractors; there will also be a modification of the formula for calculating the maximum penalty for excessive delay in fulfilling monetary obligations.

Other changes

The amendment also provides, among other things, for the invalidity of contractual provisions prohibiting the assignment of receivables in commercial transactions and imposes an obligation on all large entrepreneurs to submit a statement regarding their status. Currently, large entrepreneurs are required to submit a statement about their status to the other party in a commercial transaction only when acting as debtors of a monetary obligation.

According to the drafters, the primary beneficiaries of the changes will be small entrepreneurs. As stated, increased efficiency of proceedings conducted by the President of UOKiK should motivate large entrepreneurs to settle their obligations on time towards entrepreneurs from the SME sector. The invalidity of the contractual provision prohibiting the assignment of receivables in commercial transactions is mainly introduced in the interest of SMEs. “The contractual prohibition on the assignment of receivables is particularly burdensome in asymmetric relationships where there is an element of contractual superiority,” the Ministry of Development and Technology announced.

According to the Ministry, the modified content of reports will better reflect the payment practices of the largest entrepreneurs, which will allow contractors to better assess their payment reliability and thus potentially protect them from entering into risky business relationships. Additionally, exemption from the reporting obligation for companies belonging to tax capital groups will relieve some SME entities of this obligation – individual companies within tax capital groups are often not the largest taxpayers.