New DGCCRF guidelines on payment terms

The agents of the DGCCRF are authorized to search for and note breaches of the regulations on payment terms between companies and in public procurement contracts. In the event of exceeding a maximum period, it may in particular impose an administrative fine of up to 2 million euros or, in the event of repetition within two years, 4 million euros .  

The DGCCRF has clarified and completed its guidelines on the modalities of its controls for the respect of payment deadlines between professionals.  

The revised guidelines detail the extent of its control and the arguments that can be put forward to evade punishment. 

On the progress of the control, it is now specified that the transmissions of information and documents can be done remotely , the list of Documents of which the agents can request communication is completed, and the fact that the controls cover, with exceptions, a period of one year corresponding to the last financial year closed.  

The novelty is that its guidelines clarify the arguments that the DGCCRF does not consider as influencing its analysis and also the exonerating causes in case of late payment. 

The lines specify that the author of a late payment cannot usefully put forward the following arguments: 
  

• its good faith, provided that no intentional element is required to characterize a breach; 

• in principle, an accounting system that is irregularly kept (C. corn. art. L 123-23); 

• the fact that the invoice does not include a legal or contractual mention (as long as it indicates enough elements to allow the buyer to verify the merits of his debt (CEPC opinion n° 19-11 of September 19, 2019);
   

• the supplier’s agreement to be settled beyond the deadline, provided that the regulation is of public order; 

• an average payment period below the legal ceiling, since payments before the legal deadline cannot compensate for exceedances of the ceiling, even if they concern the same suppliers;