From 2022, small entrepreneurs will be all the better protected in their negotiations with large customers as new rules will be put in place which will make excessively long invoice payment periods impossible.
They’re tall and I’m short and that’s not fair…
As an entrepreneur, landing a big contract or a big company is always great. Big client collaborations are often financially rewarding and having great names under your belt is a great selling point for the future.
However, in our practice we often find it difficult for smaller companies to negotiate balanced contracts with economically much stronger customers. Often the contract is ‘take it or leave it’ and you, as the contractor, are forced to accept very unfavorable terms if you really want to win the contract.
This has already improved considerably with the law of 4 April 2019 (the new “B2B law”) which imposed strict rules to combat abuse of a dominant position, unfair market practices and unbalanced contractual clauses between contractors.
Getting paid quickly isn’t easy
One of the typical problems encountered by small (plus) companies is the sometimes very long payment terms with multinationals or large players. As a freelancer or SME, a fluid cash flow is often very important for the good health of your business and you would therefore prefer to be paid as quickly as possible. With large companies, however, contractually imposed payment terms of 60 or 90 or even 120 days are more the rule than the exception.
Two-thirds of businesses and self-employed people in Belgium say they sometimes have to accept payment terms that are much longer than they would like, even if this often creates liquidity problems for them.
It is true that the legislation already provides for a standard payment period of 30 days between entrepreneurs (see the Belgian law of 2 August 2002 on late payment in commercial transactions), but companies can and could contractually deviate from this.
This law was already significantly strengthened in 2019 to ensure that the payment term in contracts between large companies on the one hand and SMEs or the self-employed on the other hand is always limited to 60 days. Since 2019, anyone who contracts as a non-SME with an SME or a self-employed person must respect the legal payment deadline of 30 calendar days. However, this period could be further extended if a contractual period was provided for the “checking of the goods”. This period could not exceed 30 days and the payment period (60 days maximum) did not begin to run until after.
Conversely, SMEs could and can (try to) apply longer deadlines to large companies. Any derogation from the contract or the general conditions to the detriment of the SME or the self-employed person is and was null and void.
Further tightening from February 2022
In practice, the 2019 amendments prove to be insufficient to ensure real protection for small (more) small businesses. Over the past two years, a practice has developed that large companies almost always allow a 30-day “verification period” to verify invoices before the payment period begins. Only then does the payment period (up to 60 days) begin to run. As a result, SMEs and the self-employed often still have to wait 90 days for payment in practice.
This legal vacuum will also be filled soon. From February 2022, the combination of a 30-day verification period and a 60-day payment period will be prohibited. The maximum time that suppliers will have to wait for their money will then be 60 days from the invoice date.
The new law also prohibits contractual clauses that artificially postpone the date of receipt of invoices, thus delaying the start of verification or payment deadlines. In addition, the customer will be legally bound to provide, in good time, all the information allowing the supplier to draw up its invoice. It will also prevent dragging time, for example by not providing the supplier with a purchase order number in time.
Not just for SMEs!
It is important to note that the new rules do not only benefit SMEs and the self-employed, but apply to all commercial agreements, regardless of the size of the company and (for the first time) also in as far as the government (traditionally a very slow payer) is concerned. So your current agreements with your suppliers and your own standard terms and conditions and contracts may also need to be adapted.
No deviation possible
Contractual derogations from this new rule are not possible and clauses in contracts which provide for longer deadlines are simply null and void.
What about existing agreements?
As a service provider, it is best to check your terms and conditions and your current long-term contracts with customers before the end of 2021, so that you can make the necessary adjustments in time. After all, any conditions contrary to the new law will simply be considered unwritten and this may lead to unexpected surprises in subsequent discussions with bad payers.