Proposition 50K0385

Projet de loi créant un Institut des juristes d'entreprise.

General information ¶

Submitted by

The Senate

Submission date

July 5, 1995

Official page

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Status

Adopted

Requirement

Simple

Subjects

organisation of professions legal adviser

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Discussion ¶

Feb. 3, 2000 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Minister, Mr. Colleagues, as its title indicates, this project aims to create in our country an institute of corporate lawyers. It was unanimously voted by the Senate on 29 April 1999, that is, at the end of the previous legislature and was lifted from expiration. The Committee on Justice examined it at its meetings of 26 October and 9 November 1999 and approved it on 25 January last, without making any changes, except for some formal technical improvements which were communicated to the Committee on Justice of the Senate which agreed to consider them as such. This project has a long past since a proposal in the same direction was submitted almost twenty years ago, in 1981, by Mr. Storm in the Senate. Each legislature submitted a proposal in this direction. Hatry did the same in 1992. During the previous parliamentary term, he resubmitted his proposal on 5 July 1995 to substantially amend it in 1996. It was finally examined in 1999 by the Senate committee, which made numerous amendments before approving it unanimously, as I indicated. So what is the scope of this project of which I am honored to be the rapporteur, as I was a few months ago in the Senate? It aims to give a legal status to the profession of corporate lawyer. The development of European law and economic and social legislation has greatly contributed to the development of the function of a corporate lawyer who has, so far, no legal status. Currently, in the European Union, only Belgium and Finland lack such legal status, which disadvantages our corporate lawyers. There is, of course, an ASBL Association of Corporate Lawyers which comprises a large part of the profession, but has no legal status, and therefore no official character. The corporate lawyer actually works under the links of an employment contract and fulfils the role of legal counsel with his employer. The project therefore aims to define the function, to ensure the protection of the title and to create a professional body responsible for representing the members of the profession and to ensure compliance with deontology. Let me briefly discuss the main points of the project. Article 2 establishes the Institute and defines its tasks: establishing a list of members, establishing the deontology, promoting the profession, ensuring the training of its members and giving opinions on matters relating to the profession. Article 3 lists the organs of the Institute: general assembly, council, disciplinary committee and appeal committee. Article 4 thus defines the profession: the member is a graduate in law or in notarial office bound by a labor contract or a statute to a public or private undertaking exercising an economic, administrative or scientific activity and providing to that undertaking studies or consultations, drafting acts, etc. These activities are exercised in the field of law. The corporate lawyer therefore participates in the legal liability in the company. It has both a reactive role, responding to requests for consultations and performing various legal duties entrusted to it, and a proactive role, informing the company of the evolution of doctrine and jurisprudence. Article 5 states that the opinions given by the corporate lawyer for the benefit of his employer in the context of his activity are confidential. It is not a professional secrecy comparable to that referred to in Article 458 of the Criminal Code which concerns instructional measures carried out in the office of a doctor or a lawyer. There is obviously no question that an investigation judge cannot, in case of need, have access to the documents of a corporate lawyer. The corporate lawyer is in fact a component of the company that employs him and this situation could not be an obstacle to the fight against, for example, tax offences, or even against facts falling within the framework of organized crime. The concept used in the project is confidentiality. This confidentiality obviously does not apply to the employer because it is necessary that the employer who requests legal advice can do so with confidence and without that notice can turn against him. Articles 7 and 8 relate to the general assembly of the Institute. It is composed of all persons who are registered there and designates the various organs of the institute. It has a full range of competences in the context of its social object, including delegation to the council. It must also approve budgets and accounts. Articles 9 and following relate to the Board which is the executive body of the Institute. It consists of 20 members with linguistic parity and elects within it a President, one or two Vice-Presidents, two Secretaries and a Treasurer. The Board is responsible for ensuring the functioning of the Institute. He makes the list of members. Articles 13 and following regulate disciplinary proceedings. There are two disciplinary boards, one for linguistic role, each consisting of a judge at the Court of First Instance and two members of the Institute. The Appeal Committee consists of three magistrates, including a counselor to the Court of Appeal, and two members of the Institute. The project defines the application and the manner of functioning of the disciplinary and appeal commissions. The penalties are warning, reproach, suspension up to one year and radiation. Article 16 provides for the possibility of an appeal in cassation. In case of cassation, the case is referred back to the otherwise composed Board of Appeal, which must comply with the Court’s decision on the legal points judged by it. Finally, Article 22 provides for the transitional provisions necessary for the operation of the new institute. It entrusts the Minister of Justice to take care of collecting candidates as members and to organize the first election of the council which must take place within six months of the entry into force of the law. In his introductory statement in commission, the minister stressed that this project should ensure the protection of the title of corporate lawyer. During the discussion in the Committee, Mr. Bourgeois questioned the exclusive competence of the federal legislature in this matter. In particular, he raised the problem of training which is within the competence of the Communities. by Mr. Bourgeois also regretted the unitary structure of the institute. by Mr. Vandeurzen considered that it would have been better to split the general assembly into two linguistic groups. by Mr. Laeremans also opposed the unitary structure of the institute. by Mr. Erdman, chairman of the commission, noted that the corporate lawyer is not a depository of professional secrets within the meaning of Article 458 of the Criminal Code. In his introductory presentation, the Minister had mentioned the possibility of extending the scope of the law to independent corporate lawyers. by MM. Vandeurzen and Erdman expressed strong reservations in this regard, stressing that this would completely change the philosophy and therefore the content of the project. The Minister has given up this intention. In his response, the minister considered that this was indeed a federal matter. A business lawyer is first and foremost a legal counsel. Regarding training, the Minister noted that the institute is not responsible for organizing it, but only to ensure it. With regard to professional secrecy, the Minister stressed that the principle of confidentiality held in the project has a double implication: - the corporate lawyer must be able to freely give his opinions, having the certainty that they cannot be used against him; - the company must always be able to consult him. Regarding the unit structure of the institute, the minister noted that it corresponds to the status of the current ASBL and that apparently, it is a structure of this kind that the representatives of the profession want. The Minister also noted that, given the fact that the draft opens a possibility of appeal in cassation, there will be a need to change the Judicial Code in this sense. However, in order not to delay the completion of the current project, this modification will be the subject of a separate project that the government will submit. Seventeen amendments were submitted. Two sub-amendments and two sub-amendments. by Laeremans. Amendments by Mr. The bourgeois aimed essentially to divide the institute into two colleges, French-speaking and Dutch-speaking, enjoying great autonomy. In addition, the amendments provided for the creation of associations of corporate lawyers in each province and in Brussels. The amendments actually transferred all the powers of the council to the colleges, the institute being no more than a façade structure without competence. All amendments and sub-amendments were rejected by the committee, which approved the draft by 9 votes against 1 and 2 abstentions. Let me finish with two observations. First of all, this project was developed in perfect consultation with the representatives of the profession, currently grouped within the ASBL Belgian Association of Corporate Lawyers and this consultation guarantees the proper purpose of the law. Then, with regard to a possible conflict of interest between the State and the Communities regarding the training of corporate legal practitioners, the project entrusts only to the institute the care to ensure the training and not to organize it. This is an information or recycling mission that can be compared to similar tasks entrusted, for example, to bars by Article 456 of the Judicial Code, to the Institute of Corporate Revisors by the Law of 1953 or to the Institute of Accounting Experts by the Law of 1965. This is an accessory task for the Institute. In conclusion, I would like to recall that this project gives legal status and legal protection to a profession whose importance continues to grow in the economic life. The Justice Committee therefore invites you to adopt it.

Mr Bourgeois wishes to clarify his amendments in the same commentary.

Yes, Mr. Speaker, you only need half a word to understand me. The report was so complete that I would hardly have to explain my amendments. I would like to thank the rapporteur for this. Nevertheless, his full explanation in the discussion and the design itself has not been able to convince me. I would like to briefly summarize a few elements. I have a lot of questions about this design. First, we ask ourselves first and foremost questions about the usefulness of an institute for business lawyers as conceived in this draft. Second, we have questions about the employability of the institute. Thirdly, the confidentiality of the advice provided by the business lawyer to his employer, as proposed in Article 5, raises more questions than answers have been given. After all, this design misses the federal structure of this country. First, what is the utility of the Institute? You create a public law association to which anyone who meets a very broad standard can become a member. You must be a lawyer and you must be bound by a labor contract. You’ve thought of allowing self-employed people to be included, but you’ve come back to that. The lawyer concerned must provide studies and advice, draw up documents, give advice and provide legal assistance. There is no definition of qualities or standards to which the persons concerned must respond. They may be people who have been expelled from other professions because of crimes or disciplinary offences. Without having to respond to any other standard than the above, they can be included. The law does not specify anything about this. I predict that one will simply begin to automatically transfer the members of the private association mentioned by the reporter, the VZW Association of Commercial Lawyers, to the public association, this without any additional condition or criterion. Let us note, the most important if not the only purpose of the bill is to obtain the confidentiality of the advice that the employee provides to his employer. That confidentiality is included in the law but it is still not clear to me what this exactly means. Maybe this is up to me. Mr. Minister, I read again what you said about this during the discussion in the committee. You decide that this concept involves two things. First, the business lawyer should be able to release his or her opinions, where he or she should be able to assume that the advice cannot or should not be used against him or her. I would like to point out that this does not affect a number of legal provisions, including criminal law. The company lawyer, of course, also remains bound by an employment contract with all kinds of obligations regarding, among other things, loyalty. Secondly, the company must always be able to turn to its corporate lawyer. I am sorry, but it really ignores what additional dimension this law gives to the labor relations, especially since these opinions do not fall within the scope of the violation of professional secrecy. This has been said with so many words during the parliamentary preparation. The uncertainty remains for me. Corporate lawyers may invoke confidentiality in their advice. However, they cannot rely on the accompanying independence, which, however, would make sense in your view. At this point, the law is, by the way, in conflict with European law which treats the letter exchange of corporate lawyers as non-confidential. There is a judgment of the Court of Justice of 18 May 1982. The general principle of confidentiality of the letter exchange between the lawyer and the client is accepted herein, insofar as this has taken place with an independent lawyer. This means that the lawyer may not work in employment for his client. In addition, there is an evolution in the opposite direction. It will come to the conclusion that the principle of non-confidentiality applies and that the opposite will have to be stipulated in the case of deviating provisions. Another consideration is the question of the employability of this institute as it is put on foot here. There is one general meeting of all corporate lawyers from all over the country. No one can say exactly how many, but we can assume that there are thousands of corporate lawyers. All these Dutch-speaking, French-speaking and German-speaking people should be brought together in one large space where they should not exercise insignificant powers. They must not only elect a board of directors there, but they also have legal powers that they can – in a limited degree – delegate to the board of directors. Nevertheless, they always have their own powers of a general meeting in relation to the budget, annual accounts, discharge and so on. How this equipment will be organized, I simply do not see in. I have referred to the way in which the bills and the notaries are organized. These countries have provincial societies so that there is a working instrument with a democratic effect. I think that one large general assembly material is simply impossible. The result is predictable. There will be a relatively small participation, of course, of those people who are already structured and may ⁇ succeed in monopolizing the general assembly. We wanted a decentralized structure, referring to the examples of the bailes and the notarial office. The design could still be discussed. We cannot agree with the unitary structure of the organization. First and foremost, the law clearly relates to the competences of the Communities. Supervising the training of business lawyers is a community matter with which the federal government has nothing to do. I refer to the constitutional system of education. The federal government can impose certain standards, but the competence of the Communities for education, universities and also legal training is out of question. In addition, this is a unitary structure with paritary organs. I think this is unacceptable. During the previous term of government, Mr. Minister, under the impetus of the VU for important bodies, the duality of this country was recognized. This was also the case for federal subjects, such as the High Council for Justice, the Advisory Council for the Magistrates and for the Notaries. This is not the case for business lawyers but in a government where the VLD as a Flemish party is the main factor. It appears, to my dissatisfaction, to show no or little sensitivity on this point. I think we are taking a step back. In the previous legislature for important federal bodies, it was accepted that the country’s duality should be reflected in it. All my amendments aim to ⁇ this. These amendments were rejected in the committee. I submitted them again. I make very little illusions about this. I call on the people in this hemisphere who are somewhat sensitive to federal loyalty to support those amendments. The second amendment aims to deprive this federal structure of the competence related to the training of business lawyers.

Thank you, Mr Bourgeois. Mr Erdman, you asked for the word briefly.

Mr. Speaker, I ask in this general discussion only the word to pay tribute to the services that have very carefully examined the text that has been provided to us. They were able to make legal, technical and other observations. This was done, by the way, in consultation with the services of the Senate, which accepted it. I think it is in front of the services indeed appropriate to emphasize their vigilance and commitment.

The discussion was held in the Justice Committee. We were able to discuss the amendments of Mr. Bourgeois there. So I don’t want to overdo it today. What I think is important – and this is also shown in the report – is that there has been a consultation during the drafting of this law. The draft law, by the way, has been removed from caducity, in which this issue has been discussed extensively. I think it is time to finalize. Twenty years seem too long for something that must become absolutely.