The creditor’s right to claim EUR 40 per unpaid invoice

Analysis of the ruling of the SC (Contentious Chamber) of 4 May 2021, which resolves the question of whether the measure provided for in art. 8 of Law 3/2004 allows 40 euros to be claimed for the total amount of the debt claimed or for each of the unpaid invoices.

The recent judgement of the Litigation Chamber of the Supreme Court of 4 May 2021, interprets art. 8 of Law 3/2004 of 29 December, which establishes measures to combat late payment in commercial transactions, the content of which is as follows: “When the debtor is in default, the creditor shall be entitled to collect from the debtor a fixed amount of 40 euros, which shall be added to the principal debt in any case and without the need for an express request”.

The judgement has ruled that the 40 euros for collection costs provided for in art. 8 of Law 3/2004 can be claimed for each unpaid invoice and from the moment the debtor falls into arrears. It concludes that this is a fixed fee that accrues automatically and without the need for a prior claim. This is without prejudice to the fact that, if the creditor has incurred greater expenses in order to manage the collection of the debt, it may claim the expenses exceeding the amount of 40 euros.

The judgment focuses on determining whether, in cases in which several invoices are claimed jointly (which in the case it resolves are a total of 5,487 invoices), 40 euros must be paid for each one of them or 40 euros for the total amount of the debt claimed. In order to resolve the question, he uses a finalist criterion. It is based on the fact that the purpose of the Law on Measures against Late Payment is to combat late payment of monetary debts and abuse, to the detriment of the creditor, in the setting of payment deadlines in commercial transactions between companies or between companies and the administration. Thus, in order to discourage the practice of late payment, this kind of automatic sanction is established.

Moreover, by setting the amount for collection costs at 40 euros, following the case law of the CJEU, the creditor is encouraged to limit his collection costs to this amount, although this does not exclude that, if he proves that he has incurred higher costs, he will be entitled to receive reasonable compensation, but in that case, he will have to prove it.

It is interesting to note the dissenting opinion in which, going into the casuistry of the case, he considers that the automatic accrual of the amount should not operate when this gives rise to an abusive situation, and even contrary to the purpose of the rule.

Thus, in dissenting from the majority, this dissenting opinion focuses on two issues. The first is who brings the claim. It is not the supplier companies with whom the administration contracted the debt, but a third party to whom they assigned their receivables. The second aspect it considers is the way in which the latter manages the recovery of the claims, accumulating the invoices of 28 different suppliers in a single procedure.

On the basis of these two points, it understands that the financial institution seeks to obtain an economic benefit when it claims the 40 euros per accumulated invoice, which exceeds the true cost of the claim. The legal provision whose purpose was to protect suppliers (small and medium-sized enterprises) and compensate them for the costs of the claims, becomes a resource used by the assignee financial institution to obtain an economic benefit. It becomes a disproportionate burden and an unreasonable cost for the debtor. It considers that the measure gives rise to the possibility that third parties may be unjustly enriched if it is applied without taking into account the specific circumstances of the case.

In any event, it is clear that Law 3/2004 allows suppliers to claim EUR 40 for each unpaid invoice from customers who are themselves companies or public authorities. Moreover, it is not necessary to make an express claim, but is accrued automatically. It will be a different matter whether, depending on the specific case, a mass claim for invoices will allow the courts to derogate from the automatic nature of the law, in order to prevent third parties from profiting unjustifiably by distorting the protective spirit that inspired the inclusion of this measure in the regulation.