By its judgment of 28 January 2020, issued in case C‑122/18, the Court of Justice of the European Union accepted the application of the European Commission and established the infringement by the Italian Republic on matters connected to late payments owed by public authorities to their creditor companies. It is to be noted that the notion of ‘public authority’ at hand is wide and includes ‘any contracting authority’, namely the State and its regional or local authorities.
The ECJ observed that article 4(3)(4) of directive 2011/7/EU – on combating late payment in commercial transactions – requires Member States to ensure that payments by public authorities of receivables that are certain, of a fixed amount and due, are made by 30 and 60 days as of the day they receive the corresponding invoice or as of the relevant request for payment by the undertaking.
Although Italy adopted several measures aimed at reducing its chronic unpunctuality in payments, even after several years (we remind that 16 March 2013 was the date on which said directive should have been effectively implemented into Italian domestic law) this State has not yet succeeded in making public authorities pay their debts in compliance with the deadlines provided for in directive 2011/7.
The judgment of the Court of Justice clears away any objection raised by Italy on the non-automaticity of such an infringement and especially rejects the argument pursuant to which the liability of the State would not be engaged whether the concerned public authority acts in the framework of a commercial transaction of a private nature. In fact, the EU judges noted that the argument suggested by Italy would render the content of the directive as meaningless, in view of the fact that its goal is to ‘ensure [Member States effectively comply] with the periods for payment prescribed therein in commercial transactions where the debtor is a public authority — ineffective’.
We remind that this directive secures a small automatic compensation for every late payment by public authorities and guarantees the automatic application of late payment interest (whose rate currently amounts to 8% in Italy) upon the occurrence of such a late payment.
The judgment at hand, by ascertaining the infringement by Italy, facilitates any compensation claims against public authorities by companies which happened to suffer from delays in payments caused by the same authority.