Days Sales Outstanding (DSO)
The payment behavior of Spanish companies remains poor and commercial credit constitutes an underlying feature of commercial exchanges in Spain. Despite an improvement in 2014 and 2015, late payment of up to 15 to 20 days can still occur and payment often reaches 70 to 80 days on average. As a general rule the larger the company, the longer the terms.
Late payment interest
Spain has implemented the Recast Directive 2011/7/EU which stipulates that payments in the EU must be made within 60 days, through the Royal Decree Law No 4/2013 which entered into force in February 2013. By law, the parties may agree on payment terms up to 60 days but invoices become payable within 30 days if no agreement has been made on the matter. In addition, the law entitles the creditor to receive late payment compensation as agreed through a contact or calculated on the basis of the European Central Bank's refinancing rate increased by 8 percentage points. Late payment interest essentially is a negotiation tool in the amicable collection phase but would be claimed for during the legal phase even though they would rarely be recovered.
In addition, creditors are entitled to receive a flat EUR 40 sum (under the juicio monitorio procedureto) to cover 'minimum supplementary damages', but it is also allowed to claim compensation for all the recovery expenses (legal fees, recovery agency fees, etc.) imputable to the debtor.
Orchestrated negotiation first
The judicial process in Spain is very slow, so it is usually preferable to make concessions at the amicable stage in order to avoid legal actions which can lead to insolvency proceedings. Before starting legal proceedings against a debtor, assessing its assets is also important as it allows verification as to whether the company is still active and whether recovery chances are at best. In addition, it is essential to be aware of the debtor’s solvency status: if insolvency proceedings have been initiated, it indeed becomes impossible to enforce a debt.
Spain has a Civil Law system in which the rules are essentially codified and supported by case law evolutions. The judiciary divides into various court levels including Municipal Courts (Juzgados de Paz) dealing with small claims, District Courts (Juzgados de Primera Instancia), Commercial Courts (Juzgados de lo Mercantil) in place in the main cities, Administrative Courts (Juzgados de lo Contenciosoadministrativo), Appeal Courts spread at the provincial level (Audiencias Provinciales) and a Supreme Court (Tribunales Superiores de Justicia) acting as the court of final jurisdiction.
If the debt is certain and undisputed, fast-track proceedings may help to solve the issue with limited use of the courts. The 'Juicio cambiario’ procedure aims at obtaining a Payment Order for the recovery of debts documented by a promissory note, cheque or bill of exchange. The process is very short (eight months to a year) and starts with an attachment proceeding against the debtor goods. The ‘Juicio verbal’ is a similar although oral procedure which can be initiated for claims below EUR 6,000. The ‘juicio monitorio’ procedure, in addition, only requires common commercial documentation. Since October 2015, the claim for payment can be done through a notary. If the buyer recognizes the debt (or fails to appear within twenty days from the claim notification), the process becomes an attachment proceeding against the debtor goods. The attachment proceeding must always be executed through the Court. If the buyer doesn’t recognize the debt, however, the process becomes an ordinary process. The Monitorio was originally created for claims up to EUR 250,000 but this threshold has now been deleted.
In any case, the procedure must be transformed into a normal lawsuit if the debtor fails to pay or brings a defence. When the debtor company has assets in other EU Member States, a European Payment Order procedure facilitating the recovery of undisputed debts (under Regulation EC No 1896/2006) may furthermore be triggered. In this case, the demanding party may request a domestic court to issue an Order to Pay which will then be enforceable in all European Union countries (except Denmark) without exequatur proceedings. Ordinary legal action (juicio ordinario) would usually commence when amicable collection has failed. Legal dunning would often start with a registered Demand Letter which has no (legal) value apart from recalling the debtor its obligation to pay the principal together with late payment interest (as contractually agreed or taking a legal rate as a reference) within ten days. The debtor can then make a proposal for a possible instalment agreement. Otherwise, the creditor would file a claim (in excess of EUR 6,000) with the District Court and serve the debtor with Summons. The debtor is then given twenty days to file a defence, the parties exchange arguments, and a preliminary hearing is organized by the court prior to rendering a decision.
The courts would typically award remedies as required by the parties at the start of the proceedings, in the form of compensatory damages, injunctions, specific performance, etc. Punitive damages are however not available.
The insolvency procedure is subject to a liquidity test (insolvencia actual) aiming at establishing whether the debtor is permanently unable to settle its due debts. The Spanish Insolvency Act (as amended by Law 38/2011 of October 2011) provides for insolvency proceedings (concurso) inspired from U.S. Chapter 11 and encouraging pre-insolvency debt-restructuring alternatives to liquidation. Insolvency proceedings normally commence upon notification of financial difficulties to the court by either the debtor or its creditors, and include a common phase in which the judge will appoint, as a general rule, one or more Receivers (depending on the firm's turnover) in charge of managing the business and of determining the debtor’s estate / outstanding debts.