PAYMENT DEADLINES: Cardinal point on the risks incurred in the event of overruns
Since 2014, several laws have modified the regime of maximum payment terms (Articles L.441-10 et seq. of the Commercial Code) by giving State agents quite formidable powers of investigation, injunction and above all sanctions to ensure compliance.
Procedure: investigation and brief adversarial phase (articles L.450-1 and s. c.com)
In order to determine whether your company has exceeded payment deadlines, the officials authorized by the Minister for the Economy (agents of the DGCCRF or the DIRECCTE) may make visits to the company, ask questions and demand delivery of documents (articles L.450-1 and s.c.com.). The investigations give rise to the establishment of reports, then to the notification of the breaches and the sanction that the administration intends to pronounce. You then have 60 days to make your observations known in writing or orally, by having access to the documents approved by the administration. After this period, the administration imposes sanctions if necessary.
Sanctions: decriminalization and strengthening of administrative sanctions
- Administrative fine capped at €2 million for a legal person and €75,000 for a natural person. The penalty may be doubled in the event of repetition of the breach within 2 years from the date on which the first sanction decision became final (article L.441-16 c.com). Note that the administration had the ceiling of this fine raised (€375 k until 2016) and in 2019 notified several fines above this old ceiling: €670 k for Ciments Calcia, €500 k for France Manche and MMA P&C, €450 k for VERALLIA and in August 2019, €1.8 million for EDF (the press release points out that 10% of the invoices checked - over a period of 6 months - were paid late, representing €38 million in cash retention at detriment of 3,500 suppliers).
- Systematic publication of the decision …
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