Late Payments
European Communities (Late Payment in Commercial Transactions) Regulations 2012.
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 15th January, 2013.
I, RICHARD BRUTON, Minister for Jobs, Enterprise, and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive No. 2011/7/EC of the European Parliament and of the Council of 23 February 20111 , hereby make the following regulations:
Citation and commencement
1. (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.
Interpretation
2. (1) In these Regulations—
“amount due” means the principal sum which should, on foot of a commercial transaction, have been paid within the contractual or statutory period of payment, including the applicable taxes, duties, levies or charges specified in the invoice or the equivalent request for payment, or provided for in the contract, relating to the said transaction;
“commercial transaction” means a transaction between undertakings, or between an undertaking and a public authority, which involves the delivery of goods, or the provision of services, for remuneration;
“contractual or statutory period of payment” means the period within which the purchaser is required, in accordance with the terms of the contact or by reason of statutory obligation, to make full payment to the supplier in respect of a commercial transaction;
“Directive” means Directive No. 2011/7/EC of the European Parliament and of the Council of 23 February 2011 on combating late payment in commercial transactions;
“invoice” means a written document, electronic transmission or equivalent request for payment provided by a supplier to a purchaser in respect of a commercial transaction;
“late payment” means payment not made within the contractual or statutory period of payment where—
(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.
“local authority” means a county council, a city council or a town council within the meaning of the Local Government Act 2001 (No. 37 of 2001);
“Minister” means the Minister for Jobs, Enterprise and Innovation;
“public authority” means—
(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),
and includes—
(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,
but does not include any body when acting in a judicial or legislative capacity.
“purchaser” means—
(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,
an undertaking;
“reference rate” has the meaning assigned to it by Regulation 5;
“relevant payment date”, in relation to a commercial transaction, means—
(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,
or
(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.
“statutory late payment interest” has the meaning assigned to it by Regulation 4(1);
“supplier” means an undertaking which provides goods or supplies services to, or on the directions of, a purchaser under a contract between that undertaking and the purchaser;
“undertaking” means a person acting in the course of his or her independent economic or professional activity.
(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.
Application
3. (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,
whether by assignment, by operation of law or otherwise.
(5) In this Regulation “consumer” means a natural person acting outside his or her trade, business or profession.
Commercial transactions — implied term as to statutory late payment interest
4. (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,
and
(b) has not received the payment due by the relevant payment date, unless the purchaser is not responsible for the late payment.
Rate of statutory late payment interest
5. (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.
Grossly unfair terms — application by supplier to Circuit Court or arbitrator
6. (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,
and the supplier considers that the waiver or variation is grossly unfair, the supplier may apply to the Circuit Court for an order or, in accordance with Regulation 7, to an arbitrator for an award, under this Regulation.
(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,
or
(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,
including such order as the Court, or such award as the arbitrator, thinks fit as to costs.
(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).
Application to arbitrator for award under Regulation 6
7. (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.
Applications to Circuit Court by representative bodies
8. (1) In this Regulation—
“representative body” means an organisation which has a legitimate interest in representing small and medium-sized enterprises generally or in a specific sector of the economy or geographical area;
“small and medium-sized enterprise” has the same meaning as in Commission Recommendation No. 2003/361/EC of 06 May 2003 concerning the definition of small and medium-sized enterprises2 .
(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,
a representative body may, on its own initiative or at the request of a small or medium-sized enterprise that it represents, apply to the Circuit Court for an order under this Regulation.
(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,
including such order as to costs as the Court thinks fit.
(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).
Implied term as to compensation
9. (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.
Schedule
Amount of compensation payable under Regulation 9
Regulation 9
Not exceeding €1,000
€40
Exceeding €1000 but not exceeding €10,000
€70
Exceeding €10,000
€100
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GIVEN under my Official Seal,
22 December 2012.
RICHARD BRUTON,
Minister for Jobs, Enterprise and Innovation.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
The purpose of these Regulations is to give legal effect to Directive 2011/7/EC of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions. That Directive repeals, with effect from 16 March 2013, an earlier Directive from 2000 (Directive 2000/35/EC) on combating late payment in commercial transactions.
The Regulations repeal, with effect from 16 March 2013, the European Communities (Late Payment in Commercial Transactions) Regulations 2002 ( S.I. No. 388 of 2002 ) which transposed Directive 2000/35/EC).
The Key provisions in the Regulations are as follows:
The Regulations will apply to commercial transactions in both the public and private sectors.
The Regulations provide that interest shall be payable in respect of a late payment. In addition, it will be an implied term of every contract that interest is payable if debts are not paid on time. A payment is regarded as late when 30 days have elapsed unless an alternative payment period is specified in an agreed contract. The interest rate chargeable for late payment is the European Central Bank main refinancing rate plus 8 percentage points unless otherwise agreed.
For business to business payments, the general deadline is 30 days unless otherwise stated in the contract. It is possible, if both parties agree to extend payment terms up to 60 days. The period may be extended beyond 60 days only if “expressly agreed” by the parties in the contract and provided that it is not grossly unfair to the supplier.
The standard deadline for public authorities to business payments is 30 days. Payment can be extended up to 60 days only if it is “expressly agreed” and justified in light of the nature or feature of the contract.
The supplier is also entitled to compensation costs from defaulting purchasers. Suppliers are entitled to charge a minimum of €40 in relation to expenses incurred as a result of the late payment and may also be able to claim any reasonable recovery costs incurred.
Where a contract provides for a verification or acceptance period, the Regulations provide that interest does not run until verification or acceptance has taken place.
Where payment is made by instalments, the Regulations provide that the late payment of an instalment will attract interest and compensation but only in respect of that instalment and not the whole contract price.
Any clause in a contract which seeks to exclude interest for late payment or compensation is held to be grossly unfair and the Regulations provide that such a clause is either unenforceable or gives a rise to a claim to damages.
The Regulations provide that; compensation may be claimed for debt recovery costs, the use of terms that are grossly unfair may be unenforceable and such terms may be challenged in Court. Grossly unfair trading terms may also be challenged by organisations representing small and medium sized enterprises.
The Regulations come into effect on 16 March 2013.
The Regulations repeal the European Communities (Late Payment in Commercial Transactions) Regulations 2002 ( S.I. No. 388 of 2002 ) from 16 March 2013.
Published by the Government Supplies Agency.
1 OJ No. L48, 23.2.2011, p1.
2 OJ No. L124, 20.5.2003, p. 36.
S.I. No. 281/2016 –
European Communities (Late Payment in Commercial Transactions) (Amendment) Regulations 2016.
The Regulations
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 31st May, 2016.
I, MARY MITCHELL O’CONNOR, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2011/7/EU of 16 February 20111 , hereby make the following regulations:
1. These Regulations may be cited as the European Communities (Late Payment in Commercial Transactions) (Amendment) Regulations 2016.
2. In these Regulations, “Principal Regulations” means the European Communities (Late Payment in Commercial Transactions) Regulations 2012 ( S.I. No. 580 of 2012 ).
3. Regulation 2 of the Principal Regulations is amended, in paragraph (1)—
(a) in the definition of “contractual or statutory period of payment”, by the substitution of “the contract or” for “the contact or”, and
(b) in the definition of “relevant payment date” by—
(i) the substitution of the following paragraph for paragraph (a):
“(a) the date, or end of the period for payment, specified in the contract, provided that—
(i) in the case of a commercial transaction between undertakings, where that date, or the duration of that period, exceeds 60 calendar days, that date, or the duration of that period, shall—
(I) be expressly agreed in that contract, and
(II) not be grossly unfair, within the meaning of Regulation 6, to the supplier,
or
(ii) in the case of a commercial transaction between an undertaking and a public authority, that date, or the duration of that period, shall not exceed 30 calendar days;”, and
(ii) the deletion of paragraph (d).
4. Notwithstanding the amendment, by these Regulations, to the Principal Regulations, nothing in these Regulations shall operate to affect a contract referred to in the definition of “relevant payment date” which was made before, and is in force on, the day on which these Regulations come into operation.
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GIVEN under my Official Seal,
25 May 2016.
MARY MITCHELL O’CONNOR,
Minister for Jobs, Enterprise and Innovation.
1 OJ L 48, 23.2.2011, p.1
Prompt Payment of Accounts Act, 1997
Interpretation.
1.—(1) In this Act, unless the context otherwise requires—
“invoice” means a written document or electronic transmission provided by a supplier requesting payment for goods or services provided to or on the directions of a purchaser;
“the Minister” means the Minister for Enterprise and Employment;
“prescribed payment date”, in relation to the provision of goods or services, means—
(a) the date on which payment is due under the terms of any written contract for the provision of the goods or services, or
(b) where there is no written contract or the written contract does not provide for the date of payment, 45 days after—
(i) receipt by the purchaser of an invoice for the payment due, where the invoice is received after the completed delivery of the goods or services, or
(ii) the delivery of the goods or services, where the delivery is made at the time of or after receipt by the purchaser of an invoice therefor,
or such lesser number of days as the Minister may, by order under section 10 (2), prescribe;
“purchaser” means—
(a) a person or body specified in the Schedule ,
(b) a subsidiary (within the meaning of the Companies Act, 1963 ) of a person or body referred to in paragraph (a), where the subsidiary is not already specified in the Schedule , or
(c) a person (“the main contractor”)—
(i) who obtains goods or services from another person to supply to, or
(ii) contracts with another person for that other person to provide goods or services on the main contractor’s behalf to,
a person or body, or subsidiary, referred to in paragraph (a) or (b) of this definition;
“supplier” means a person who provides goods or services to or on the directions of a purchaser under a contract between that person and the purchaser.
(2) For the avoidance of doubt, a purchaser referred to in paragraph (a) or (b) of the definition of “purchaser” in subsection (1) may for the purposes of this Act be a supplier in relation to the supply of particular goods or services.
(3) For the purposes of this Act, 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 proved.
(4) In this Act—
(a) a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended,
(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the section in which the reference occurs, unless it is indicated that a reference to some other provision is intended,
(c) a reference to the Schedule is a reference to the Schedule to this Act, and
(d) a reference to any other enactment shall be construed as a reference to that enactment as amended, extended or adapted by or under any enactment made subsequent to that enactment.
Application.
2.—This Act shall apply only to and in relation to goods and services supplied on or after the commencement of this Act.
Amendment of list of purchasers.
3.—(1) The Minister may, by order, amend the Schedule by adding to, deleting from, or substituting the name of a person or body for that of a person or body in, a list therein.
(2) If the Minister amends the Schedule by deleting the name of a person or body, the Minister shall specify in the order the reason for the deletion.
Prompt payment of accounts.
4.—(1) A purchaser who obtains goods or services from a supplier shall pay for them by the prescribed payment date.
(2) A purchaser who does not pay for goods or services by the prescribed payment date shall, subject to sections 5 , 7 and 14 , pay an interest penalty to the supplier in accordance with this section on the amount from time to time outstanding under the contract for the supply of the goods or services.
(3) An interest penalty under this Act shall be paid to the supplier for the period beginning on the day after the prescribed payment date and ending on the date on which the payment of the amount due is made.
(4) For the purposes of subsection (3), payment shall be taken to have been made when the appropriate amount of cash is received by the supplier, the appropriate amount is credited by, on behalf of, or at the direction of, the purchaser to an account nominated by the supplier, or the supplier is put in a position by the purchaser to be able, by the supplier’s own actions, to credit the appropriate amount (for example, by the depositing of a cheque which is subsequently honoured) to such an account.
(5) An interest penalty in accordance with this section is not capable of being waived by the supplier, and shall be included with the amount payable for the goods or services without demand for its payment being made by the supplier.
Return of invoice for correction.
5.—(1) If, within 10 working days after receiving an invoice for goods or services supplied, a purchaser returns the invoice to the supplier because it is not adequate or sufficiently accurate on which to make payment, and at the same time gives to the supplier a written statement identifying the defects that prevent the payment being made, interest penalty in relation to the goods or services shall not accrue until the expiration of 10 working days after the receipt by the purchaser of a proper corrected or replacement invoice, or until the prescribed payment date, whichever is the later.
(2) If a purchaser returns an invoice to a supplier in circumstances referred to in subsection (1) but later than 10 working days after receiving it, interest penalty in relation to the goods or services shall not accrue until the expiration of 10 working days after the receipt by the purchaser of a proper corrected or replacement invoice reduced by a number of working days equal to the number of working days the purchaser was late in returning the invoice, or until the prescribed payment date, whichever is the later.
(3) In this section “working day” means a day which is not a Saturday, Sunday or public holiday.
Information to accompany payment.
6.—Each payment in which an interest penalty is required by this Act to be included shall be accompanied by a notice stating the amount of the interest penalty included and the rate by which, and the period for which, the interest penalty was computed, and such other information, if any, as the Minister may prescribe.
Amounts payable in case of dispute.
7.—(1) Where there is a dispute between a purchaser and supplier as to the amount due and payable under a contract for the supply of goods or services, the purchaser shall not be liable to pay an interest penalty in respect of any of those goods or services which—
(a) the purchaser and supplier agree, or
(b) a court or arbitrator before which or whom the dispute is brought for determination or settlement decides,
are genuinely in dispute and the purchaser has, before the prescribed payment date, paid for the goods or services, if any, agreed or determined not to be in dispute.
(2) For the purposes of subsection (1), goods or services which are complementary and designed to be used together with goods or services which are in dispute shall also be taken to be in dispute.
Supplier may submit dispute to arbitration.
8.—(1) Subject to any written contract, where there is a dispute between a supplier and a purchaser on any matter relating to or affecting the payment of, or the purchaser’s obligation to pay, an interest penalty under this Act, the supplier may submit the dispute to arbitration by an arbitrator appointed by agreement between the parties or, 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, appointed by the President of the Law Society of Ireland or such other person as the Minister may prescribe.
(2) The Minister may make regulations—
(a) prescribing a person to appoint an arbitrator for the purposes of subsection (1),
(b) modifying the provisions of the Arbitration Acts, 1954 and 1980, in their application to arbitration under this Act, or
(c) prescribing additional or other provisions in relation to such arbitration.
(3) Subject to any regulations made under subsection (2), the Arbitration Acts, 1954 and 1980, shall apply to and in relation to an arbitration under subsection (1).
Prompt payment to subcontractors.
9.—Where there is a contract (“the first contract”) between a purchaser and a supplier for the supply of goods or services and the supplier is also a purchaser under a contract (“the second contract”) for the acquisition or supply of the goods or services to be provided under the first contract—
(a) where the first contract is in writing and provides for a date by which the payment of the agreed price for the supply of the goods or services shall be made, the period used in calculating the prescribed payment date for the second contract shall be the same number of days as the period between the supply of the goods or services and the payment for the goods or services provided for in the first contract or, if the second contract is in writing, any lesser period specified in the second contract, or
(b) where the first contract is not in writing or is in writing but does not provide for the date of payment, the prescribed payment date for the second contract shall be 45 days—
(i) after receipt by the purchaser of an invoice for the payment due, where the invoice is received after the completed delivery of the goods or services, or
(ii) after the delivery of the goods or services, where the delivery is made at the time of or after receipt by the purchaser of an invoice therefor,
or the least of such lesser number of days—
(iii) as may be specified in the second contract (if the second contract is in writing), or
(iv) as the Minister may, by order under section 10 (2), prescribe.
Minister shall fix rates of interest penalty and may fix prescribed payment date.
10.—(1) The Minister shall, by order, after consultation with the Minister for Finance, fix the rate of interest penalty payable pursuant to section 4 (2) and may, in the same manner, amend such an order.
(2) The Minister may, by order, after consultation with the Minister for Finance, prescribe a payment date that is earlier than the 45 days referred to in the definition of “prescribed payment date” in section 1 (1) or in section 9 (b), and may, by order—
(a) amend such an order, or
(b) revoke the order and make another order in its place.
Restrictions on power to extend payment periods.
11.—(1) Where the Minister is of the opinion that the practices of a purchaser specified in the Schedule in contracting for payments for the supply of goods or services have the effect of allowing the purchaser credit terms that are unreasonable in the circumstances, the Minister may, after—
(a) advising the purchaser of, and the grounds for coming to, that opinion,
(b) giving the purchaser an opportunity to make representations to the Minister, and
(c) consulting with the Minister for Finance,
by order, direct that the purchaser shall not be capable of agreeing a time of payment for the supply of goods or services that is later than the 45 days referred to in paragraph (b) of the definition of “prescribed payment date” in section 1 (1) or such earlier date as is from time to time fixed under section 10 .
(2) An order under subsection (1) may be expressed to apply generally or in relation to a particular supplier or goods or services and may be subject to such conditions, if any, as the Minister thinks fit.
(3) The Minister may by order, amend or revoke an order made under this section.
(4) While an order made under this section remains in force, any contract entered into by the purchaser to whom it relates shall be construed accordingly.
Disclosure of payment practices of purchasers.
12.—(1) Where a purchaser specified in the Schedule is required by statute to publish an annual report, the report shall include details of the purchaser’s payment practice in the period covered by the report.
(2) A purchaser specified in the Schedule who is not required by statute to publish an annual report shall, within the prescribed time, if any, lodge with the Minister an annual review of its payment practice in the period covered by the review and the Minister shall, as soon as practicable after receiving the report, cause a copy to be laid before each House of the Oireachtas.
(3) The details to be included for the purposes of this section in an annual report or annual review of payment practices shall include such, if any, as the Minister may prescribe.
Duty of auditors.
13.—An auditor auditing the affairs of a purchaser specified in the Schedule shall report on whether, in all material respects, the purchaser has complied with the provisions of this Act.
Tax clearance certificates and withholding tax.
14.—(1) Nothing in this Act shall be construed as requiring the payment of an amount due to a supplier who has refused or failed to comply with a request from the purchaser to show a tax clearance certificate in accordance with the scheme referred to in section 177 of the Finance Act, 1995 .
(2) If a supplier does not, within seven days after being so requested by a purchaser, show a tax certificate as required, the time for calculating the prescribed payment date shall cease to run from the expiration of that seven day period until the tax clearance certificate is shown or, where the prescribed payment date is a date specified in a written contract, the date for payment shall be deemed to be deferred for an equivalent period.
(3) Nothing in this Act shall be construed as affecting the powers and duties of an accountable person as defined in section 14 of the Finance Act, 1987 , to deduct from any payment to a supplier the appropriate tax within the meaning and in accordance with section 15 of that Act.
Regulations and laying of orders and regulations before Oireachtas.
15.—(1) The Minister may make regulations prescribing matters—
(a) required or permitted by this Act to be prescribed (unless the context requires the matters to be prescribed in some other way), or
(b) the Minister considers necessary or expedient to be prescribed for carrying out or giving effect to the provisions of this Act,
and in particular prescribing—
(i) the form of, and information to be included in, invoices for the purposes of this Act, and
(ii) rules to apply to disputes about the accuracy or adequacy of invoices, the fact of supply, and such other matters as the Minister considers relevant to the determination of disputes, including the returning of invoices for correction or replacement and the extension of times for payment or the taking of any action in the circumstances of particular cases.
(2) Every order (other than an order under section 16 (2)) or regulation made under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the order or regulation is laid before it, that order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
Short title and commencement.
16.—(1) This Act may be cited as the Prompt Payment of Accounts Act, 1997.
(2) This Act shall come into operation on such day as the Minister may by order appoint.
SCHEDULE
Purchasers (as enacted)
sections 1 and 3 .
ACCBank plc
Aer Lingus
Aer Rianta
APSO (Agency for Personal Service Overseas)
Area Development Management Limited
Area Partnership Boards
Arramara Teoranta
Arts Council
Blood Transfusion Service Board
Board for Employment of the Blind
An Bord Altranais
An Bord Bia
Bord Fáilte Éireann
Bord Gáis Éireann
An Bord Glas
Bord na Gaeilge
Bord na gCon
Bord Iascaigh Mhara
Bord na Leabhair Gaeilge
Bord na Móna
An Bord Pleanála
Bord na Radharcmhastóirí
Bord Scannán na hÉireann
Bord Telecom Éireann
An Bord Tráchtála
An Bord Uchtála
Border Regional Authority
Broadcasting Complaints Commission
Central Bank of Ireland
Central Fisheries Board
Central Statistics Office
C.E.R.T. Limited
Chester Beatty Library
Chief State Solicitor’s Office
An Chomhairle Leabharlanna
Church of Ireland College of Education, Rathmines
Civil Service Commission
Coillte Teoranta
Coiste an Asgard
Combat Poverty Agency
Companies Registration Office
Competition Authority
Córas Iompair Éireann
County Enterprise Boards
Crafts Council of Ireland
Defence Forces Canteen Board
Dental Council
A Minister of the Government having charge of a Department of State, in respect of the functions for the carrying out of which that Department is responsible to the Minister (including any office or body, not otherwise specified in this Schedule, of such Department, in relation to which functions are vested in the Minister) and whether or not referred to as the Minister, the Department or that office or body
Devolution Commission for Local Government Reform
Director of Public Prosecutions
Drug Treatment Centre Board
Dublin Docklands Development Authority
Dublin City University
Dublin Institute for Advanced Studies
Dublin Institute of Technology
Dublin Regional Authority
Dublin Transportation Office
Dún Laoghaire College of Art and Design
Economic and Social Research Institute
Electricity Supply Board
Employment Equality Agency
Environmental Protection Agency
FÁS
FÁS International Consulting Limited
Fire Services Council
Food Safety Advisory Board
Forbairt
Forfás
Foyle Fisheries Commission
General Medical Services Payment Board
Harbour Authorities within the meaning of the Harbours Act, 1946
Harbour Companies referred to in section 7 of the Harbours Act, 1996
Health Boards
Health Research Board
Heritage Council
Hospital Bodies Administrative Bureau
Hospitals Trust Board
Housing Finance Agency plc
I.C.C. Bank plc
I.D.A. Ireland
Independent Radio and Television Commission
International Development Ireland Limited
Institute of Public Administration
Institiúid Teangeolaíochta Éireann
Irish Aid Advisory Committee
Irish Aviation Authority
Irish Fertiliser Industries Limited
Irish Horseracing Authority
Irish Manuscripts Commission
Irish Medicines Board
Irish Museum of Modern Art
Irish National Petroleum Corporation Limited
Irish National Stud Company Limited
Irish Red Cross Society
Irish Telecommunications Investments plc
Labour Relations Commission
Land Registry
Law Reform Commission
Legal Aid Board
Local Authorities for the purposes of the Local Government Act, 1941
Local Government Computer Services Board
Local Government Staff Negotiations Board
Marine Institute
Medical Bureau of Road Safety
Medical Council
Mid-East Regional Authority
Midland Regional Authority
Mid-West Regional Authority
National Authority for Occupational Safety & Health
National Building Agency Limited
National Cancer Registry Board
National College of Art and Design
National Committee for Development Education
National Concert Hall
National Council for Curriculum and Assessment
National Council for Educational Awards
National Council on Ageing and Older People
National Economic and Social Council
National Economic and Social Forum
National Gallery of Ireland
National Milk Agency
National Rehabilitation Board
National Roads Authority
National Safety Council
National Social Services Board
National Standards Authority of Ireland
National Theatre Society Limited
National Treasury Management Agency
Nitrigin Éireann Teoranta
the Office of Charitable Donations and Bequests
the Office of Public Works
the Office of the Attorney General
the Office of the Comptroller & Auditor General
the Office of the Director of Consumer Affairs
the Office of the Ombudsman
the Office of the Paymaster General
the Office of the President
the Office of the Registrar of Friendly Societies
the Office of the Revenue Commissioners
the Office of the Tánaiste
the Ordnance Survey Office
Patents Office
Pensions Board
Pharmaceutical Society of Ireland
An Post
Postgraduate Medical and Dental Board
Public Voluntary Hospitals
Raidio na Gaeltachta
Radiologial Protection Institute of Ireland
Refugee Agency
Regional Fisheries Boards
Regional Technical College Athlone
Regional Technical College Carlow
Regional Technical College Cork
Regional Technical College Dundalk
Regional Technical College Galway
Regional Technical College Letterkenny
Regional Technical College Limerick
Regional Technical College Sligo
Regional Technical College Tallaght
Regional Technical College Tralee
Regional Technical College Waterford
Registry of Deeds
Royal Irish Academy
Royal Irish Academy of Music
R.T.É.
Salmon Research Agency of Ireland Limited
S.D.S.
Shannon Free Airport Development Company Limited
South-East Regional Authority
South-West Regional Authority
St. Angela’s College of Home Economics, Lough Gill, Sligo
State Laboratory
Stationery Office
St. Catherine’s College of Home Economics, Sion Hill, Blackrock
St. Patrick’s College of Education, Drumcondra
St. Patrick’s College, Maynooth (National University of Ireland Recognised College)
Teagasc
TEASTAS
Teilifís na Gaeilge
Temple Bar Properties Limited
Temple Bar Renewal Limited
An tÚdarás um Ard-Oideachas
Údarás na Gaeltachta
University College Cork
University College Dublin
University College Galway
University of Dublin, Trinity College
University of Limerick
Valuation Office
Vocational Education Committees
Voluntary Health Insurance Board
West Regional Authority
Western Development Commission
Public Voluntary Hospitals:
—Adelaide Hospital Peter Street, Dublin 8
—Beaumont Hospital Beaumont Road, Dublin 9
—Central Remedial Clinic Vernon Avenue, Dublin 3
—Children’s Hospital Temple Street, Dublin 1
—City of Dublin Skin and Cancer Hospital Hume Street, Dublin 2
—Coombe Women’s Hospital Dolphin’s Barn, Dublin 8
—Cork University Dental School and Hospital Wilton, Cork
—Dublin Dental Hospital Lincoln Place, Dublin 2
—Federated Dublin Voluntary Hospitals James’ Street, Dublin 8
—Incorporated Orthopaedic Hospital of Ireland Castle Avenue, Clontarf, Dublin 3
—International Missionary Training Hospital, Our Lady of Lourdes, Drogheda, Co. Louth
—Leopardstown Park Hospital Foxrock, Dublin 18
—Mater Misericordiae Hospital Eccles Street, Dublin 7
—Meath Hospital Heytesbury Street, Dublin 8
—Mercy Hospital Grenville Place, Cork
—National Children’s Hospital Harcourt Street, Dublin 2
—National Maternity Hospital Holles Street, Dublin 2
—National Rehabilitation Hospital Rochestown Avenue, Dún Laoghaire, Co. Dublin
—Our Lady’s Hospice Harold’s Cross, Dublin 6
—Our Lady’s Hospital for Sick Children Crumlin, Dublin 12
—Peamount Hospital Newcastle, Co. Dublin
—Portiuncula Hospital Ballinasloe, Co. Galway
—Rotunda Hospital Parnell Street, Dublin 1
—Royal Hospital Donnybrook Morehampton Road, Donnybrook, Dublin 4
—Royal Victoria Eye and Ear Hospital Adelaide Road, Dublin 2
—South Infirmary — Victoria Hospital Limited Old Blackrock Road, Cork
—St. James’ Hospital James’ Street, Dublin 8
—St. John’s Hospital St. John’s Square, Limerick
—St. Luke’s and St. Anne’s Hospital Radiotherapy and Oncology Service Highfield Road, Rathgar, Dublin 6
—St. Mary’s Hospital and Residential School for Children with Disability Baldoyle, Dublin 13
—St. Mary’s Orthopaedic Hospital, Cappagh, Finglas, Dublin 11
—St. Michael’s Hospital Dún Laoghaire, Co. Dublin
—St. Vincent’s Hospital Elm Park, Dublin 4
—St. Vincent’s Hospital Convent Avenue, Richmond Road, Fairview, Dublin 3
—Tallaght Hospital Board 57c Harcourt Street, Dublin 2