Changes in the regulations on counteracting excessive delays in commercial transactions have entered into force

On 8^th December 2022 significant changes to the Act on Counteracting Excessive Delays in Commercial Transactions entered into force.

They focus on two main areas: facilitation, including clarification of regulations, and increasing the effectiveness of proceedings conducted by the Head of UOKiK.

The deadline for submitting the report was extended from 31^st January to 30^th April of the year following the reporting year. This already applies to reporting for 2022.

By virtue of the amendments, the following were excluded from the scope of the reporting obligation:

• companies forming tax capital groups;
• public healthcare entities and healthcare entities in the form of capital companies established and run by the State Treasury or local government units;
• insurance and reinsurance payments;
• expired payments;
• payments within capital groups.

The entrepreneur will be obliged to submit a statement to the other party to the commercial transaction not only about having, but also about obtaining or losing the status of a “large entrepreneur”.

These declarations are made at the latest at the time of concluding the first commercial transaction between the parties:

• if one has the status of a “large entrepreneur” – at the moment;
• after the entrepreneur obtains the status of a “large entrepreneur”;
• after losing the status of a “large entrepreneur”

– once, in the form in which this commercial transaction is concluded.

In a situation where the debtor is a large entrepreneur and the creditor is a micro/small/medium entity, the ineffectiveness of the contractual stipulation was introduced, excluding or limiting the creditor’s right to transfer the claim, if the payment was not made within the time limit specified in the contract / from the date of payment of the payment (this rule will not apply to commercial transactions in which the debtor is a public entity).

A number of issues related to the reporting obligation have been changed (clarified), e.g. it is regulated that:

• the reporting obligation rests with the entity, and the responsibility for submitting the report by the entity rests with the entity’s “head” (defined, among others, as a member or members of the company’s management board);
• correction of the report is submitted if the data contained in the previously submitted report changes at least in one item by at least 10% of the value;
• the justification for the correction of the report is to be attached to the correction;
• values in foreign currencies are to be converted into PLN in accordance with the accounting principles adopted in a given entity;
• the value of benefits and shares will have to be presented in the report with an accuracy of 1 grosz and hundredths of a percent, respectively;
• the report should indicate the percentage share of individual cash payments not received in the total value of cash payments due to the given entity in the previous calendar year and the percentage share of individual cash payments not met in the total value of cash payments that the given entity was obliged to provide in the previous calendar year;
• the report should indicate the value of cash payments received or fulfilled within the period specified in the contract (and if the contract period is inconsistent with the statutory one – in relation to the maximum statutory period).

As for the other changes, they mainly concern the issues of penalties and the proceeding:

• defining directives on the imposition of administrative fines for excessive delays in the provision of cash payments (e.g. seriousness of the infringement, “corrective” actions or cooperation with the authority);
• new penalty algorithm – adopting a model for calculating the maximum administrative fine for excessive delays, which takes into account fixed percentage rates assigned to individual periods of delay;
• elimination of the premise of waiving the imposition of a penalty due to the surplus of overdue receivables over liabilities;
• introducing the possibility of reducing the imposed administrative fine for excessive delays by 20% if the party to the proceedings pays the administrative fine in full within 14 days from the date of delivery of the decision and waives the right to submit an application for reconsideration of the case ;
• introduction of an obligatory increase in the maximum administrative fine for excessive delays by 50% in the event that, within 2 years from the date on which the decision to impose an administrative fine became final, the Head of UOKiK again finds excessive delay by the same entity;
• introduction of the so-called “soft summons” – summons to the authority before the initiation of proceedings (optional);
• introduction of the possibility of submitting an application for deferment of the payment of the fine imposed or spreading it into installments, due to the important interest of the applicant.

In principle, the existing provisions applied to commercial transactions concluded before the date of entry into force of the amendment.