How to claim the defaulter Public Administration?

derecho publico

From the Law 3/2004 Measures combating late payment in commercial transactions has been trying to bring order to the payment deadlines practiced in our country.

Not infrequently, los alargamientos en los pagos llevan a la muerte a muchas empresas viables. The Law 15/2010 modifies the aforementioned Law 3/2004. In its preamble, states "Payment periods in the public sector, the payment period to a maximum of thirty days is reduced, which will apply from 1 January 2013 ".

The law 15/2010, amending the law 30/2007 of 30 October, public sector contracts, whose fourth paragraph of Article 200 is worded as follows:

«4. The Administration shall have the obligation to pay the price within thirty days from the date of issuance of certificates of works or documents evidencing the full or partial performance of the contract, without prejudice to the special period prescribed in Article 205.4, and, if it is delayed, You must pay the contractor, from the fulfillment of that within thirty days, default interest and compensation for recovery costs under the terms provided in the Act 3/2004, of 29 December, establishing measures to combat late payments in commercial transactions set. If not relevant issuing certification work and the date of receipt of the invoice or equivalent request for payment is given to doubt or is prior to the receipt of goods or the provision of services, within thirty days counted from that date of receipt or delivery. "

The mechanism for realizing this right, set forth in Article 200 to de la LCSP:

"After the term refers to Article 200.4 of this Act, contractors may claim in writing to the Contracting Authority compliance with the obligation to pay and, if, of default interest. One, after a period of one month, the Administration had not answered, means recognized the payment deadline and stakeholders may make an administrative appeal against the inactivity of the Administration, as a precautionary measure may request immediate payment of debt. The court will adopt the precautionary measure, unless the Administration stating that there are no circumstances that justify the payment or the amount claimed does not correspond to it is required, in which case the injunction will be limited to the latter. The judgment ordered to pay the defendant Administration in the case of total estimate of the claim for recovery”.

Open two possibilities to demand payment administration: the provisions of Article 3 Act 15/2010 and secondly the article 29 the LRJCA.

In this post we will focus on the first of procedures.

Produced default by the administration, we claiming default interest which in no case may exceed the 15%. If in a month we get no response by the administration, interpondremos an administrative appeal, in which we can apply to adopt the debt settlement as a precautionary measure.

If we get a judgment by, the administration will normally be ordered to pay the costs of prosecution, in addition to the principal with interest.

Moreover, there through article 29 LJCA inactivity of the administration within three months.

Notably the interest rate for late payment to be applied is the ECB plus eight points (art. 7 Act 3/2004).

They can also reclaim all recovery costs duly justified (article 8 Act 3/2004).

The compensation may not exceed 15% the amount of debt (art.4 Law 15/2010), but if the debt does not exceed 30.000 Quro, It does not apply that limit.

For its part, the creditor must meet the following requirements:
1.- Having fulfilled its legal and contractual obligations.
2.- Not having received payment.


Last, It is added to the creditor administration has a term of four years since occurred delivery or service provision in order to claim debts within the meaning of Article 25.1 Act 47/2003 of 26 September, General Budget. The same four-year period applies to claim interest for late payment, which they will start counting from the payment of principal.

However in practice we usually encounter the following difficulties: the public patrimony is not attachable, y el que quiera seguir contratando con una entidad publica se cuidará de no incomodarles demasiado.

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