Law 18/2022 (“Crea y Crece Law”) introduced a new subsection to Article 15 of the Unfair Competition Law, which is by no means trivial and provides that the repeated breach of regulations to combat late payment in commercial transactions shall be considered unfair.
It is important to bear in mind the new wording of the provision, especially for those companies that, despite current legislation to combat late payment in commercial transactions, are negotiating and accepting payment terms exceeding the limits laid down in the aforementioned Act.
In our view, the application of this provision should not be automatic, and in order for a breach of the rules to combat late payment to be considered unfair conduct, it should be necessary for there to be 2 important factors:
- Competitive purpose, that is to say, that the breach is aimed at improving one's own market position and has a minimum significance to influence the market.
- Repetition of the behaviour, that is, multiple breaches of conduct are required and it will not even be unreasonable to demand a considerable number of breaches (i.e., more than two).
We are rapidly approaching the entry into force of the regulation, so it will be necessary to keep a close eye on the evolution of legal doctrine and case law in this regard. However, to clarify any potentially infringing conduct with greater precision, please do not hesitate to contact us; we will be delighted to help you.