European Communities (Late Payment in Commercial Transactions) Regulations 2012.
Statutory Instruments
Source: Statutory Instruments

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paragraphs: (1) These Regulations may be cited as the European Communities (Late Payment in Commercial Transactions) Regulations 2012.
(2) These Regulations come into operation on 16 March 2013.
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paragraphs: (1) In these Regulations—
(a) the supplier has fulfilled its contractual and legal obligations, and
(b) the supplier has not received the amount due on time, unless the purchaser is not responsible for the delay.
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services, and
(c) any natural or legal person having public responsibilities or functions, or providing public services, under the control of a body or person falling within paragraph (a) or (b),
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held—
(I) by or on behalf of a Minister of the Government,
(II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities,
(a) an undertaking which contracts with a supplier for the delivery of goods or the provision of services to or on the direction of the undertaking, or
(b) an undertaking (“the main contractor”) which—
(i) obtains from another undertaking goods to be delivered to or services to be provided to, or
(ii) contracts with another undertaking for that undertaking, on behalf of the main contractor, to deliver goods or provide services to,
(a) subject to paragraph (d), the date, or end of the period, for payment specified in the contract,
(b) where the contract does not specify the date or period for payment, the date falling 30 calendar days after—
(i) subject to clause (II) of subparagraph (ii) and paragraph (c), the date of receipt by the purchaser of the invoice, or
(ii) the date of the delivery of the goods or the provision of the services where—
(I) the date of receipt of the invoice is uncertain, or
(II) the purchaser receives the invoice before the delivery of the goods or the provision of the services,
(c) where the contract does not specify the date or period for payment, if a procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, is provided for by statute or in the contract and if the purchaser receives the invoice earlier than or on the date on which such acceptance or verification takes place, the date falling 30 calendar days after the date on which such acceptance or verification takes place;
(d) where the contract does specify the date for payment, such date, provided that where that date exceeds 60 calendar days from the date of the delivery of the goods or the provision of the service, such date shall—
(i) be expressly agreed in the contract, and
(ii) not be grossly unfair, within the meaning of Regulation 6, to the supplier.
(2) For the purposes of these Regulations, an invoice sent by post or an electronic transmission comprising an invoice shall be taken to have been received in the normal course of the post or that transmission service, unless the contrary is shown.
(3) A word or expression that is used in these Regulations and also in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.
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paragraphs: (1) These Regulations apply to payments made as remuneration for commercial transactions.
(2) These Regulations do not apply to—
(a) contracts made before 16 March 2013,
(b) transactions with consumers,
(c) debts that are subject to insolvency proceedings instituted against the debtor, including proceedings aimed at debt restructuring,
(d) subject to paragraph (3), a debt if, or to the extent that, it consists of a sum to which a right to interest or to charge interest applies by virtue of any Act or any instrument made under an Act (other than these Regulations), or
(e) a debt if, or to the extent that, a right to demand interest on it, which exists by virtue of any rule of law, is exercised.
(3) Paragraph (2)(d) does not prevent statutory late payment interest becoming payable by reason of the fact that a court or arbitrator would, apart from these Regulations, have power to award interest on it.
(4) The application of these Regulations is not affected by—
(a) any change in the identity of the parties to the relevant commercial transaction, or
(b) the passing of the right to receive the payment concerned or the obligation to make the payment concerned, in whole or in part, to a person other than the person who is the supplier or the purchaser when the payment becomes due,
(5) In this Regulation “consumer” means a natural person acting outside his or her trade, business or profession.
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paragraphs: (1) It shall be an implied term of every commercial transaction that where the purchaser does not pay for the goods or services concerned by the relevant payment date, the supplier shall, subject to paragraph (4), be entitled to interest, (in these Regulations referred to as “statutory late payment interest”) without the necessity of a reminder, on the amount outstanding under the contract concerned at the rate specified in Regulation 5.
(2) The supplier shall be entitled to statutory late payment interest on the said amount outstanding for the period beginning on the day after the relevant payment date and ending on the date on which the payment of the amount due is made.
(3) A supplier shall be entitled to statutory late payment interest to the extent that the supplier—
(a) has fulfilled his or her contractual and legal obligations,
(b) has not received the payment due by the relevant payment date, unless the purchaser is not responsible for the late payment.
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paragraphs: (1) Unless otherwise specified in the contract concerned, the statutory late payment interest payable under Regulation 4 shall be the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before 1 January and 1 July in each year (in this Regulation referred to as “the reference rate”) and published in the Official Journal of the European Communities plus 8 percentage points.
(2)(a) The reference rate in force on 1 January 2013 shall apply for the period from the coming into operation of these Regulations and ending on 30 June 2013.
(b) Subject to subparagraph (a), the reference rate in force on—
(i) 1January in a particular year shall apply for the period commencing on that date and ending on 30 June in that year, and
(ii) 1July in a particular year shall apply for the period commencing on that date and ending on 31 December in that year.
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paragraphs: (1) Where a term of a contract between a purchaser and a supplier purports to waive or vary—
(a) in a case where the contract does not specify the date or period for payment, the relevant payment date, or
(b) the implied term referred to in Regulation 4,
(2) Subject to paragraph (3), the Circuit Court may make an order or, as the case may be, an arbitrator may make an award—
(a) that the term concerned is grossly unfair to the supplier,
(b) that the term concerned is unenforceable,
(c) varying the term by substituting for that term—
(i) the relevant payment date,
(ii) the provisions of Regulation 4, or
(iii) such other term as appears to the Court or the arbitrator to be appropriate,
(d) directing the purchaser to pay to the supplier such compensation, costs and expenses, if any, as appears to the Court or the arbitrator to be appropriate having regard to any loss, costs and expenses incurred by the supplier by reason of the term concerned,
(3) In making an order or an award under paragraph (2), a Court or an arbitrator, as the case may be, shall take into account all the circumstances of the case, including the following:
(a) good commercial practice;
(b) the nature of the goods or services concerned;
(c) whether the purchaser has any objective reason to deviate from these Regulations;
(d) the strength of the bargaining positions of the supplier and purchaser relative to each other;
(e) whether the supplier received an inducement to agree to the term or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
(f) whether the supplier knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties).
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paragraphs: (1) Where a supplier wishes to make an application under Regulation 6 to an arbitrator, he or she shall request in writing the agreement of the purchaser to the appointment of a named person to act as an arbitrator for the purposes of Regulation 6.
(2) In the absence of such agreement within 14 days after either party has given to the other a written request to concur in the appointment of an arbitrator, either such party may apply in writing to the President of the Law Society of Ireland to appoint a person to be arbitrator for the purposes of Regulation 6.
(3) The Arbitration Act 2010 (No. 1 of 2010) applies to an arbitration carried out under Regulation 6.
(4) The determination of an arbitrator in such an arbitration is binding on both parties save that, on a point of law, either party may appeal to the High Court.
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paragraphs: (1) In this Regulation—
(2) Where contractual terms drawn up for general use purport to waive or vary—
(a) the relevant payment date where the contract does not specify the date or period for payment, or
(b) the implied term referred to in Regulation 4,
(3) Subject to paragraph (6), the Circuit Court may make an order—
(a) that the terms concerned are grossly unfair and are unenforceable, and
(b) prohibiting the use or, as may be appropriate, the continued use of the terms concerned, on such terms as appear to the court to be appropriate,
(4) The representative body concerned shall cause to be published notice of intention to apply to the Circuit Court for an order under paragraph (3) in at least 2 daily newspapers published and circulating in the State and in such further or other manner as the court may direct.
(5) Every person claiming to have an interest in any such application shall be entitled to appear before and be heard by the court on the hearing of the application.
(6) In making an order under paragraph (3), the court shall take into account all the circumstances of the case, including the matters specified in Regulation 6(3).
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paragraphs: (1) It shall be an implied term of every commercial transaction that, where statutory late payment interest becomes payable under Regulation 4, the supplier shall be entitled, without the necessity of a reminder, in addition to the statutory late payment interest, to the amount specified in the Schedule as compensation towards the relevant recovery costs incurred by the supplier as a consequence of late payment.
(2) The supplier shall not be required to adduce evidence of having incurred the relevant recovery costs referred to in paragraph (1).
(3) The supplier shall, in addition to the fixed sum referred to in paragraph (1), be entitled to obtain reasonable compensation from the debtor for any recovery costs exceeding that fixed sum and incurred due to the purchaser’s late payment. This may include expenses incurred, inter alia, in instructing a lawyer or employing a debt collection agency.
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paragraphs: Subject to Regulation 11, the European Communities (Late Payment in Commercial Transactions) Regulations 2002 (S. I. No. 388 of 2002) are revoked with effect from 16 March 2013.
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paragraphs: Notwithstanding the revocation of the European Communities (Late Payment in Commercial Transactions) Regulations 2002 by Regulation 10, those Regulations shall continue to apply to a contract for the provision of goods or services to which those Regulations apply which was made before, and is still in force after, the coming into operation of these Regulations.