Do you know that paying for transportation late is expensive? The lawyer answers you

Throughout 2023, a large number of loading companies have been sanctioned by the General Directorate of Land Transportation for exceeding the 60-day deadline for payment of contracted transportation services.

This “delinquency” has been a general trend in the road freight transport sector in recent years, which presents an average payment period of more than 80 days , and in certain cases it exceeds 120 days of delay from the transfer of the corresponding invoice.

It should be noted that these payment deferrals affect the “cash flow” of transport companies whose nature in most cases responds to an SME model and an average of available vehicles is less than 4 trucks.

The transport market follows a model marked by the existence of a large number of companies , but with a very limited loading and negotiation capacity, which is why the consequences of these delays in payment inevitably extend to the entire sector, affecting suppliers. and other associated services.

According to the information provided by the European Commission , this situation of late payment generates one in every four insolvency situations of companies with tax headquarters in the EU , which motivated the approval of Directive 2000/35/EC ., Therefore, with With the aim of transposing this regulation and incorporating it into the Spanish system, Law 3/2004, of December 29, was approved , article 4 of which established a general payment period of 30 calendar days and a maximum period of 60 days from the provision of the service.

Despite the firmness with which this law established the maximum payment terms , it had an essential defect in that it did not incorporate real measures that would discourage late payments and actually penalize companies that paid more than 60 days. For this reason and with the aim of reversing this situation definitively, Law 13/2021 was approved “to fight against late payment in the field of road freight transport” which incorporates these delays into the sanctioning regime of the Management Law Transport and establishes sanctions for companies that exceed the maximum payment limit of 60 days

In order to shed some light on the content of these laws, we make a small summary so that it is easy to understand for the reader:

What is the general deadline to pay an invoice? Do carriers have any obligations?

According to article 4.1 of LAW 2/2004, in the absence of an agreement between the shipper and the carrier, the ordinary period for the satisfaction of invoices is 30 calendar days from the date of provision of the transportation services, which is It will be deemed completed once the goods have been delivered. In the event that the shipper and carrier make an express agreement that establishes a longer payment term , in no case may it exceed 60 days to their satisfaction from the time the services were provided under the consideration of “null” or “not provided” any agreement that sets a period greater than this threshold.

Although the same article refers to an express obligation of the carrier to transfer the invoice to the customer before 15 calendar days from when the service was provided, this obligation is independent of the duty to pay on the part of the shipper on whom the responsibility will fall. obligation to pay the amount of the service , which in our opinion is not logical and reasonable.

When does the sanctioning regime provided for in Law 13/2021 operate?

The sanctioning regime operates in the event that payment for the services is made to the carrier within a period of more than 60 days from when the service was provided.

In general, it is the administration itself that usually requires the transport company to report and transfer the documentation of its shipments, detects the situation of late payment and opens a sanctioning file against the shipper or contractor of the service; It should be noted that the Land Transportation Contract Law considers the freight forwarder as a shipper with respect to the carrier despite the fact that his intervention is that of an intermediary between client and supplier.

It is also worth noting that these non-compliances are easily detectable by the administration as 68% of payments are made by bank transfer, 27% are made by confirming and only 4% are made by promissory notes, as well as 1 % through checks.

How much are the penalties?

A gradual sanctions regime is applied depending on the value of the invoice ; recidivism in the sanction; and may be aggravated when the conduct significantly affects the economic solvency of the carrier, as we see below:

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Finally, it is worth mentioning that the General Directorate of Land Transport has been applying a 30% reduction in the amount for those sanctioned who pay the fine in a voluntary period (less than 30 calendar days from when the agreement to initiate the sanctioning procedure is communicated).

As can be seen in the latest Delinquency Observatory prepared by FENADISMER, during the last 6 months these payment terms have been significantly reduced, so it seems that this trend is encouraged by the fear of the sanctions that we have analyzed.

The main problem faced by the application of these new assumptions of the sanctioning regime lies in the fact that a high percentage of shippers is located outside the kingdom of Spain, which makes it impossible to apply sanctions on foreign companies and represents a comparative grievance regarding local companies.

For its part, the European Commission has already published its proposal for a new European Regulation to combat late payment, which is expected to include the reduction of maximum payment terms to 30 days from the issuance of the invoice compared to the current 60 days, which It can generate real nightmares for the quantity administration departments of companies in Europe.

We will continue to pay close attention to the new regulations that are approved next year, since the survival of our modus vivendi depends on it.

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Author: Felipe Serrano Pérez. Foundation partner at International Transport Lawyers

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