Law 18/2022 (“Crea y Crece Law”) introduced a new section to Article 15 of the Unfair Competition Law, which is not trivial and which provides that repeated non-compliance with the rules against defaulting in commercial transactions shall be considered unfair.
It is important to bear in mind the new wording of the precept, especially for those companies that, despite the current regulations on combating late payment in commercial transactions, are negotiating and accepting collection conditions that are higher than the limits set out in the aforementioned Law.
In our opinion, the application of this precept should not be automatic, and for a breach of the rules against defaulting to be considered unfair conduct, it must be present two important facts:
- Competitive purpose, in other words, that the non-compliance is aimed at improving one’s own position in the market and that it is of minimal significance in influencing the market.
- Repetition of the conduct, that is, several breaches of conduct are required and it is not unreasonable to require a considerable number of breaches (i.e. more than two).
We are very close to the entry into force of the rule, so it will be necessary to be attentive to the evolution of doctrine and case law in this respect. However, in order to clarify more precisely any potentially infringing behaviour, please do not hesitate to contact us; we will be pleased to help you.