Proposition 50K0038

Projet de loi introduisant l'utilisation de moyens de télécommunication et de la signature électronique dans la procédure judiciaire et extrajudiciaire.

General information ¶

Author

N-VA Geert Bourgeois

Submission date

Aug. 4, 1999

Official page

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Status

Adopted

Requirement

Simple

Subjects

proof civil procedure

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Discussion ¶

July 6, 2000 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Minister, colleagues, I thank the rapporteur for his excellent written report and his brief but accurate reference to this report. As a proponent of this bill, I would like to give you a small explanation. Mr. Speaker, Mr. Minister, colleagues, my bill aims to introduce the modern means of telecommunication in the out-of-court and judicial circulation. I think at the end of the discussions in the committee we could say that this goal was achieved, moreover, it was strengthened, refined and improved. The first point of this bill is the introduction in a new form of Article 2281 of the Civil Code. From now on, the Civil Code provides that any notification that must be made in writing may be made in a valid manner by telegram, telex, telefax and electronic mail. You will understand that the words telegram and telex have been incorporated to the extent necessary in the bill, rather post factum, if not post mortem. It is mainly about the introduction of telefax and electronic mail as modern means of communication. I would like to point out that here we are not in the sphere of the right of evidence, but that this is about the invokability of these means of communication in relation to the recipient. A person who receives a fax or an electronic mail message cannot claim that he does not receive an original signed document. If he doubts, he must, without further delay, request a confirmation with an original signature from the person who sent him the piece. With this article 2281 we do nothing other than at the legal level by-been the reality. Telefax and e-mail have become common means of communication. We will immediately open the legal gateway for electronic extrajudicial legal transactions. Once that gate was opened, the minister used it to make a big step forward. In particular, he submitted an amendment concerning the electronic signature. The Minister disconnected his text from the draft law of his colleague Daems, concerning the certification of service providers for the use of electronic signature. This Minister’s amendment immediately made a spectacular step in the field of electronic justice. With the amendment of the Government, the new Article 1322, last paragraph, we are in the sphere of the right of evidence. From now on, an electronic signature can provide the same proof-power of an in-hand document as it has previously been done with a handwritten signature. Mr. Minister, this is a huge step forward, which was also strongly pushed by the business community. The rest of the bill is based on process law. With the articles related to this, we are taking the step towards e-justice. We are entering the new century with the beginning of informed justice and, in my modest opinion, putting ourselves at the head of the European peloton. This makes access to justice more democratic, more direct, simpler and less formal. The same applies to communication between the different parties involved in a dispute and the lawyers. Furthermore, I would like to remind you that the use of telefax in the court, as it were, was already shutteringly recognized. In this regard, I refer to the provisional detention law. In addition, I would point out that certain jurisprudence has already accepted that procedural documents, conclusions, appeals and petitions are submitted by telefax to the office. It is, however, a white-rav justice, in the sense that it is very limited and not applied equally everywhere. With this part of the bill, the legislator takes the lead, where that happened in other countries through the jurisprudence. In 1989, the German Bundesgerichtshof ruled that conclusions and petitions could be filed by fax, and the Dutch High Council reached the same conclusion through the groundbreaking judgment of 27 November 1992. In those countries the way was taken by the judiciary, while in us very hesitant and unequal steps were taken in that direction. Now the legislator makes the right decision on this matter and that is a good thing. In addition, in this way we act on the international law provisions of a number of treaties, such as the Convention on International Trade Arbitration. Particularly spectacular to this bill is that not the hour, but the day when the conclusions, petitions or other documents are submitted to the office, is important for the calculation of the deadline. This was not achieved without strike or blow in the committee. In any case, we agree with the foreign jurisprudence on the matter. In Germany, it is considered, inter alia, that, once such means of communication are allowed to be used, the calculation of the time limit must not be attributed to the time at which the documents are delivered, but rather to the day at which they arrive at the office. An additional step taken after the hearings with the professors Storme and Deleval, following a proposal from the latter, is that notifications that normally need to be sent as registered may now also be sent by fax or by electronic mail, subject, however, to the delivery of a receipt, which is perfectly possible with modern means of communication. Finally, I would point out that this bill is a new step towards the deformation of judicial law, in the sense that it provides that any document to be submitted signed to the court can absolutely not be declared invalid because the original signature is missing. The absence of the original signature can be settled by signing the document at the latest at the hearing or within a time limit determined by the court, which a number of judges who applied this norm already held as jurisprudence. Mr. Speaker, Mr. Minister, however, this has not yet been resolved. In this regard, I would like to draw your attention to the following points. First, the entry into force, which has been discussed extensively. Finally, a wise and reasonable arrangement was developed, in the sense that, in civil law, notifications by fax and electronic mail, on the one hand, and electronic signature, on the other, come into effect immediately. The procedural provisions, on the other hand, enter into force only after a ministerial decision through a royal decree. Although the Minister formally committed to act diligently in this regard, a material problem arises, in particular the equipping of the griffies and parquets with the necessary fax equipment and the connection to the internet and the like. But the Minister formally committed himself to work on this equipment as soon as possible, in such a way that one can now de facto assume that no later than 1 September 2001, i.e. at the beginning of that judicial year, this new path can be taken. The certification of the electronic signature is also not regulated. I understand that there are some technical problems with the draft of Minister Daems. I hope they are out of work as soon as possible. If the draft-Daems bill becomes law, the electronic signature will still increase in value, both literally and legally. This law, once it has the force of a law, will be strengthened by the draft-Daems. Finally, I would like to discuss the problem of notification and notification with you. The professors urged to take the step right now, at least in terms of domestic legal transaction. There is a directive in the process for interstate, intra-European traffic. We can wait for this draft directive, but we must follow the evolution closely. I hope you will do this. In Lisbon, Member States were called upon to implement e-government and e-justice as soon as possible. I hope that you will follow the draft directive closely so that notifications and notifications can also be made electronically. With this law we take a step towards the justice of the twenty-first century, but when it comes to the notifications and notifications between the various European Member States, we are not even in the nineteenth century, but actually still in the Middle Ages. The way of communicating is old-fashioned, completely downward and overlooked. If you succeed in addressing this point as a priority, you will be able to make a huge contribution to accelerating the operation of the court. This is not just a progress for criminal matters. Businesses are primarily faced with very difficult procedures of notification, notification, exequatur, and so on. It can hardly be imagined that, in an age where electronic communication takes place in seconds, we work with notifications and notifications that can take weeks to months. It is purely medieval. Mr. Speaker, Mr. Minister, Colleagues, I am convinced that with this bill we are making a huge step forward that will bring immediate tangible benefits to the citizens, the business world, the lawyer’s office, the magistrates’ office and the officers. I would like to address you specifically. Your cabinet initially hesitated for understandable reasons. They referred to European developments, and so on. It may not be wise to move forward. Nevertheless, at some point, you yourself have been very enthusiastically supporting this proposal and have contributed to making this bill a law. You have substantially amended, strengthened and improved it by linking your design to the electronic signature. This means a huge added value. By supporting this initiative, you have given a first concrete fulfillment to e-governance and e-justice. For one time, we can say that we are not backwards, but we are at the forefront. That is necessary. I sincerely thank you for this. I would also like to thank the professors Storme and Deleval, who made substantial contributions in the hearings so that this bill becomes law. They showed great enthusiasm. They have acted very positively. In addition, they have proposed very concrete text improvements and content improvements. I would also like to point out the remarkable practical testimony of the chief greffier of the Brussels Court of First Instance, Mr. Van Haecke. To the surprise of some of us, he has proven from the field that one is positive about our proposals. The practitioners have a positive attitude towards modern means of communication and they accept process documents, conclusions and petitions submitted by fax. If there are material problems, they solve them. Mr. Speaker, I would like to thank all the members of the Justice Committee for their positive contribution and their critical questions and comments. Thus, they contributed to a tightened and better legislation. I would like to thank the President of the Commission in particular. First of all, I thank him for his special, inconsistent way of leading projects, bills and proposals to a good end. Next, I would like to thank him for showing, to my very pleasant surprise, the greatest enthusiasm among the members of the committee for this step forward towards the use of modern means of communication.

There is no doubt about the importance of new information technologies as useful and necessary instruments in the sectors of trade, industry and services. The increases in productivity they lead to are undeniable. Therefore, there was no reason not to use the same instruments for the benefit of democracy and a rapprochement between citizens and our institutions. This is the proposal that will be submitted to our vote. We welcome this initiative and its approval. Mr. Speaker, I believe that the work of the committee has provided a good example of the role of Parliament since it is a parliamentary initiative. Hearing of civil society experts took place and, in the end, all this resulted, with a very broad consensus, in an adaptation of our Civil and Judicial Codes to new technologies.

Mr. Poncelet, you are absolutely right and I thank you for pointing it out.

More generally, we are pleased that the bills we initiated and finalised during the previous legislature can be continued and gradually achieved. This is a discussion we have had with the Minister of Justice. Following the draft on cybercrime that has been the subject of our discussions and which has been approved by the House, here is today a draft that adapts the rules of the Civil Code relating to evidence and which is introduced in the form of government amendments. All this goes in the right direction and, I repeat, constitutes the continuation of previous initiatives, with the sole objective of adapting our administrative tool to new technologies, which is very good in itself. I would like to briefly address the question of the means. Mr. Minister, it’s easy to make advertising effects, but what I’m interested in is actually changing the content of things. From this point of view, I would like to again advocate that the bill on the activity of certification service providers for the use of electronic signatures be discussed in committee and voted promptly. This whole system of use of new technologies has meaning and value only if, at a certain point in the procedure, the electronic signature can be certified. All this aspect of electronic signatures on the one hand, but especially of the certification of signatures on the other, is fundamental. We hope that the government will soon be able to move forward in this direction. Finally, Mr. Minister, I also plead that you can quickly secure the equipment of the courts and judicial services. Gradually, these technologies must be available and used in services. Finally, we must come together to establish what can soon be called e-justice. We will support this initiative.

Mr. Minister, I will use less time than you need to fulfill your constitutional duties when reading the articles. Mr. Speaker, first of all, I would like to congratulate the applicant on his proposal that the CVP will gladly support. I also agree with the words of thanks and appreciation for the way the Chairman of the Committee has accompanied this important discussion. This also applies to the experts who have heard the committee and to the Minister and his staff who have made a substantial contribution to the improvement of the bill. Mr. Speaker, colleagues, although I agree with Mr. Bourgeois’s blatant speech, I would like to make a fundamental observation. I also know that it is in talking about e-justice and e-government and other forms of use of the internet in the policy areas. This arouses a lot of sympathy among the public opinion and is a media-sensitive topic. These are fundamental elements. That is why the implementation of the bourgeois bill is so important. Rightly, new communication technologies and new technologies should be able to be introduced in these domains. However, there is one but. If the ordinary organization, the basis of the judiciary and the prosecutor’s office are not critically analyzed, if there is no re-engineering to find out what possibilities the new technology offers, including for the organization of the police offices and the parquets and for the way the citizen comes into contact with the judiciary – a task that is not sensational but a long-term and in-depth work – if all this does not happen first, one will know a few flash moments such as the presentation of the website, but one risks missing the basic basic conditions to introduce this new technology with great success and reap the fruits of it. That is my great concern. Everyone is interested in the new technology. The ham question is whether we want to think first about the evidence with which we organize parquet and griffies, or about the way we design the court buildings. Are we ready to do this thinking exercise first? Are we willing to think about the establishment of the district courts, about a different organization of the griffies and parquets, about a decentralization of your department and its decision-making? I think these are the basic conditions for the introduction of the new means of telecommunications. Therefore, I am pleased that the suggestion has been followed to allow some articles of the legislation to enter into force only when you consider the griffies ready to do so. For me, this is not only after one has a computer, a fax device and a website. There is need for more. For example, web administrators should be hired, managers appointed, and procedures set. These are complex matters. Mr. Minister, the only thing I advocate is that we exchange views on this in a committee and do not allow the introduction of new telecommunication means to be legally possible. In the light of good governance, there is still more work to be done to ⁇ a well-equipped justice system.

Mr. Speaker, allow me to make a few comments. First of all, of course, I would like to thank the reporter and colleague Bourgeois for their praise in my address. I remind them that I almost caused a storm when I dared to insert the notification by fax into the provisional detention law. I am therefore at the base of the first step towards modernization. Hence my enthusiasm for this text. Since then, I have learned to work with a fax and an e-mail. I highly appreciate that colleague Bourgeois makes it possible to finally bring some modernism into the house in 2000, which may scare many. In order for this project to succeed, a lot of resources will need to be invested, as rightly noted here. Otherwise, it becomes an impossible situation. In the first attempts to automate, I asked Minister Wathelet to launch a large project, but he wanted to limit the appropriations included in the budget for this purpose to 50 million per year. This resulted in many devices no longer being compatible with the newer ones. Then we missed a chance. Mr. Minister, I urge us to avoid that this time. After all, the use of new telecommunications means cannot be stopped, neither for international nor for domestic traffic. When I see the path we have taken in the modernization of the so-called aid roads of justice, while there is a considerable backwardness in that area in the House itself, I can not help but conclude that today we are making a marked step forward. I remember the time when some threw the new judicial code out of the window, because one did not need it and the old was good enough, with which one could better live. It will become more difficult to teach the stakeholders to work with these new means of communication, but it is extremely necessary if we want to establish justice as it should.