Proposition 50K1132

Projet de loi modifiant la loi du 8 août 1997 sur les faillites, le Code judiciaire et le Code des sociétés.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

March 7, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

bankruptcy

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR FN VB

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Discussion ¶

July 18, 2001 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, Mr. Colleagues, I take the word, although I realize that at this late hour at the end of our work the interest in this important draft may not be so great anymore. Nevertheless, I would like to pay tribute to the staff of the Secretariat and the staff of the Minister and colleagues because we have worked constructively together in the committee, at the hidden hour of Thursday afternoon. When the Bankruptcy Act of 8 August 1979 was enacted, it was already pointed out that we may have to submit this law to an evaluation after a few years. Since its entry into force, there have indeed been a number of uncertainties and corrections in practice. For a long time, several proposals were prepared to address problems arising in practice around the application of this law. Nevertheless, we delayed the discussions for some time to allow the Minister to also add a draft to the discussion. I can confirm that the discussions were very constructive. Again, I would like to express my appreciation to the Minister for his staff who also supported this discussion in a ⁇ loyal way.

Without being complete, I would like to overlook some important improvements from the law. First and foremost there is the obligation of the curator to report in case of conflict of interest or appearance of partiality. The new legislative article stipulates that the curator must make sure that his professional activities in the past cannot give rise to a appearance of partiality. If he thinks that he could create that appearance, he must inform the judge. In this case, the judge makes an opportunity assessment and therefore has three options. The judge can judge that these are insignificant facts and takes note of them. He may decide to appoint an ad hoc curator for a specific claim or procedure. Finally, it can be replaced.

The introduction of the principle of the obligation of reporting and the judge’s power of appreciation is a significant improvement compared to what was originally included in the draft government. Indeed, the government suggested that there would only be a conflict of interests or a possible partiality in certain cases or situations. If we had followed this viewpoint, this could have a contrario meant that in other situations there could be no conflict of interests or appearance of partiality.

The original law stipulated that the court would decide whether or not a bankrupt is compensable. It was seen as an advantage for those who could be considered a reliable trading partner in the future. In the new legislative amendment, the judge will always grant the amendment, unless serious reasons suggest the opposite. The future will have to show if this automation is the right choice. We had a few questions about this, along with our colleagues from the VU. We have spent quite a bit of time in the committee on the paralysis between the dishonorability in the bankruptcy law and the dismissal in the collective debt arrangement. Both regimes, one applicable to the natural person and the other to the merchant, the merchant, natural or legal person, later in the discussions limited to the natural person. Both regimes aim to restore the financial situation of the debtors. Nevertheless, there are now a number of inconsistencies between the two regimes, consequences for the deposit, the extent of the discharge, the dischargeability. We think that is not the best situation. It is about non-comparable situations, not entirely similar situations, but yet we think it would be desirable to maintain a coherent logic between the two systems and to align them with each other.

Mr. Speaker, Mr. Minister, colleagues, after the summer vacation we will begin the discussion of the law on the judicial agreement. Initially, Mr. Minister, you had that included in one draft, but I think that together we have done wisely to address the practical improvements that will undoubtedly be appreciated on the ground now and then hold a fundamental discussion about the judicial settlement. There, however, the discussion is more fundamental and it is not limited to some repairs or practical improvements. The original purpose of this law, namely to identify and help sick enterprises that are still to be cured and thus provide a full-fledged alternative to bankruptcy, is very positive. Everyone agrees on that. The law provides an important awareness about this issue. However, the desired effect is not always achieved. Too many judicial arrangements end in bankruptcy.

To remedy this, on the one hand, a change in the mentality of companies and traders must take place and, on the other hand, a number of inactive legal articles must be adjusted. We hope that these discussions will be conducted in the same constructive spirit as during the discussion of the bankruptcy law.

I share Mr. Vandeurzen’s view on the solidity of this special committee in which Mr. Grafé and the members spent a lot of time on Thursday afternoon.

Mr. Speaker, Mr. Minister, colleagues, Mr. Lano is living abroad. He asked me to review this draft, which contains many of his amendments. The proposed draft is the first major amendment of the Bankruptcy Act since 1997. Started as a limited adjustment of the law through the initial draft, it was merged with a number of proposals that proposed a solution to various problems in bankruptcy law.

Since the entry into force of the 1997 Act, it has been shown that improvements could be made in a number of points and that the procedure could be organized more efficiently in several points. They often appear to be details but they are matters that in their entirety can reduce the seizure at the court of commerce or make the procedure more transparent. I will give a list of the most important changes.

The curator shall no longer make a new oath for each bankruptcy, but shall do so once at the moment he is included in the list of curators. In this way, the oath can again become a solemn moment, which is in principle the purpose. This prevents various movements of judge-commissary, secretary and curator.

Another important novelty is the regulation on conflicts of interests and the reporting obligation. In this regard, I refer to the remarks of Mr Vandeurzen.

A third important element relates to the overlapping reporting obligations during the first year of the bankruptcy. The reports were better coordinated and coordinated.

The retention of bankruptcy documents was harmonised with the Act of 1975 on the accounting of the company. The curator who must archive the documents does not have any more extensive obligations than the failed trader himself had.

The conditions for the immediate sale of assets have been adjusted to the prevailing practice and the deposits to the Deposito- and Consignatiekasa are now made within the month rather than within the week.

The Government has submitted an amendment aimed at obliging the curator to proceed immediately to verify and improve or to draw up the balance sheet, if necessary, at the expense of the directors and managers of the bankrupt company.

If prosecution is initiated against a failing person or against the directors or business executives, a notification is made to the curator.

Following an amendment to the VLD, a new Article 63bis was introduced which finally establishes an effective arrangement for legal proceedings pending on the date of bankruptcy.

The survival of a bankrupt legal entity declared bankrupt was a measure of doubtful usefulness and brought in practice only difficulties and unnecessary procedures. The closure of the bankruptcy of the legal entity now means an immediate end to its existence, so that no companies declared dishonestly will yet be sold as empty boxes, often to malicious persons who primarily wish to escape the liability of the founder.

Certain or all debts may be excluded, in whole or in part, from the cancellation, so that a cancellable declared bankrupt may still be obliged to repay half of all debts after the bankruptcy.

The guarantor of generosity is defined and can be dismissed from its obligations. Individual creditors can now, in addition to the curator, raise liability claims against the directors, which will undoubtedly lead to greater accuracy and diligence in the management of companies.

These are some of the key improvements that, as a whole, will significantly improve the handling of bankruptcies.

However, we would have wanted to go further. Two of our proposals have not succeeded in the committee, but I share them because we are convinced of their importance and efficiency.

First, the settlement of debt claims can just as well be done by appealing to the court less than today. This gives free time for other necessary activities. Only the actual disputes — the declarations for which the curator and the creditor cannot reach an agreement and for which no proceedings are still under way on the date of bankruptcy — should be examined by the court. For the other claims, the supervision of the curator under the supervision of the judicial commissioner is sufficient.

Second, the territorial jurisdiction of the court to declare bankruptcy should be based on a system in which misleading traders no longer benefit from successive seat movements, whether or not linked to a name change, to eventually deposit the books of an empty business in a district where the trader is unknown and where there has never been an investigation by the chambers for trade investigation or by the prosecutor. Third, the current protection of the protected worker works counterproductively and is actually more of a burden to these people than a protection.

In any case, the final balance is already positive. We look back with satisfaction to the good cooperation in the committee between the various parties and the government.

We hope that the second part of the reform will proceed in the same way. The Concordate is still an institution that fails to meet its purpose, in particular the avoidance of bankruptcies by timely and efficient protection of undertakings that have temporary payment problems. Therefore, we consider it essential that public-law creditors, such as the RSZ and the tax authorities, be empowered to conclude charges concerning outstanding debts. This is essential for the judicial agreement to get the effectiveness of U.S. Chapter 11. This does not only imply a change in the legislation on the concordate, but we will submit the necessary proposals on this subject.

I still have the pleasant obligation to thank everyone who has cooperatively contributed to the creation of this draft, in particular the services of the Chamber without whose effort the draft could never be dealt with by the committee over such a period of time.

Mr. Vanhoutte, I assume that Mr. Van Hoorebeke also wants to speak during this general discussion. I hope you keep your discussion brief.

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, I would like to join the decision of the President. I would like to thank everyone who contributed to the work of the committee. In particular, I would like to thank the staff of the Minister and the colleagues of the opposition, Mr. Van Hoorebeke, Bourgeois and Vandeurzen. The latter have worked very constructively in the committee. I was only in the middle of the ride to replace a colleague. I was pleasantly surprised by the functionality of this committee, and I hope that good operation will continue, despite the difficult hour in which we always have to meet. Mr. Coveliers, just then Mr. Bourgeois wondered where the coherence was in the government. Let me put a belt under your heart. In terms of stimulating the entrepreneurs in this country, I think we are still on the same line. Like you, this stimulation is very important. The unfavorable entrepreneurial climate in Belgium does not only deal with excessive burdens, but also with other aspects, such as the problem of bankruptcies. In order to remedy this, the legislation on the judicial agreement was also previously encrypted. However, after an initial renewal, the number of applications for a judicial settlement is minimal. Of the group that submits an application, a large part still ends up in bankruptcy. Therefore, it makes great sense that the bankruptcy legislation has been thoroughly reviewed.

In my opinion, we must first get rid of the idea that a failed middle class or enterprise bears the debts of that bankruptcy for the future of life. Belgium is one of the few countries where this is still the case. This legislation aims to change this. Automatic cleaning is an important step. Per ⁇ it is still a bit experimental and we need to look at the cat from the tree. Nevertheless, I believe that the implementation of this principle is important provided that the conditions are met. When this design is approved, the decorability is an acquired right.

We must not lose sight of the creditors. They should not stay in the cold. A partial reimbursement may be considered if it turns out that a full reimbursement brings creditors into trouble. It is not intended that the creditors are undermined by the automatic granting of the amortisability. In this way, we would only work a waterfall of bankruptcies.

For another element, we did not follow the minister. It is about the extension of decorability to legal persons. Currently, the availability is limited to the natural persons. In my opinion, it may have been an easy-to-use solution for the committee to limit itself to that.

In fact, many legal entities are natural persons with a small, limited envelope because they are often small enterprises that have adopted legal personality for various reasons. I really do not see why it would not be organized for these people and for the natural persons, except that the way it is presented is easy and clear. However, I think that we should return to this in the future, so that we can also provide for these legal entities with a basis for decorability.

Mr. Minister, I would like to conclude with a few not insignificant general concerns. Anyone who wants to do business in this country deserves all the support. After all, entrepreneurs are still the basis of our economic network. Even if a business is running on the cliffs, it is important that these entrepreneurs get all the support. Furthermore, we should not forget that many bankruptcies can be prevented by properly guiding entrepreneurs from the start, preparing for the start of their business and continuing to guide them during the start-up and exploitation. If this is done efficiently and properly, with a minimum flexible framework – if that is well managed, as the minister himself would say – then we can also succeed in avoiding a lot of bankruptcies.

I also want to point out a pain point. I note that there are currently quite a few banks refusing to provide loans to small ⁇ and start-ups. This is increasingly threatening to become a problem. We need to think carefully about how we can optimize and guarantee access to the loan system for entrepreneurs. I believe that even a startup, regardless of the possible risks, has the right to get at least one loan.

Finally, nothing has been said about the preservation of the consignation box. That is important. We continue to support that. We have discussed this for a long time and we have heard the people. Further modernization of this consignment box would provide a good guarantee of managing the funds from bankruptcies in a meaningful way in favor of the bankrupt and not — as is commonly perceived by banks — for their own profits and benefits. We must therefore maintain this consignation box and encourage them to go with their time.

Mr. Speaker, I will try today not to disappoint you and to keep it short as I promised you. First of all, I would like to join the words of homage expressed by my predecessor to all those involved who have worked well in this rather technical committee far from the press and the interest. Mr. Minister, your employees were a good soundbar for the comments and concerns we raised.

However, I have also learned to appreciate a number of colleagues that I had not met before during parliamentary work. It is nice that people are taught to appreciate beyond the political contradictions.

Mr. Vanhoutte rightly said that a second part should be added to this. In fact, we had to look at the court settlement and the bankruptcy law first. The bankruptcy is the result of a successful judicial settlement. I know that it is the government’s intention to address the judicial agreement on this issue as well. Our society and our economy, and especially the small self-employed who are willing to shake their neck, are benefited by a good bankruptcy law and a good law on judicial settlement. Indeed, it is important to seriously reconsider this to give beginner entrepreneurs a better chance of succeeding there after a certain difficult period. This judicial agreement may be discussed in the autumn.

Today, after years of review, we are facing a technical adjustment of the Bankruptcy Act. We have had a lot of input from the curators on the ground, from the judges in commercial matters and from the chilling cases of the bankrupt oneself, who have founded an interest association and who have told us what is wrong during a bankruptcy, a black period to go through. Therefore, it is important to have a human procedure that serves not only the interests of the creditors, but also of the bankrupt.

Some of the changes were of a technical nature. We have widely supported this. It included removing a number of procedural inconsistencies between the closure of the bankruptcy in the absence of the active and the ordinary closure and the specification that a third-party objection procedure should be directed against the curator. Mr Vanhoutte, we have debated this long. That was a meaningful debate and we have also reached further in that than before. The publication of the bankruptcy judgment in the Belgian Staatsblatt is now carried out by the officer. These cases have occurred at the request of the curators and the courts on the basis of the findings of recent years.

The bill we will approve also includes a number of interesting innovations. I emphasize that the People’s Union has strived for greater independence of the curator. The law will provide that a curator must report any form of conflict of interest or appearance of partiality to the court.

The reporting obligation is important. Ultimately, the court, the judge-commissary or the commercial judge will decide what effect will be given to it. It seems to me that it is of deontological importance that the curator indicates what may compromise his independence at the time of his appointment. I assume, Mr. Hove, that you also pointed out this.

The reporting obligation of the curator becomes more balanced. Mr. Minister, there was a rather heavy burden on the curator who had to prepare a report in a very short term. However, this does not mean that the curator will be given a free guide to do what he wants for a certain period of time. I believe that there needs to be an even greater cooperation between, on the one hand, the curator and, on the other hand, the judge in commercial matters, the judge-commissary who is appointed and who is not so much the auditor of the curator but the associate of the curator in order to quickly reach a settlement of the bankruptcy.

A VU amendment created the possibility of moving to an immediate realisation of the assets and implemented an expansion. This was also a rather complicated procedure.

Mr. Minister, at some point we were faced with a number of amendments from the government commissioner, Mr. Zenner. As part of the amendment to the Bankruptcy Act, he wanted to intensify the fight against tax fraud.

I have a few negative concerns. We discussed the role of the Deposit and Consignateka. This debate was already held during the discussion of the previous bankruptcy law. I thought we would go a little further in that area today. However, this was not achieved because the position of the Deposit and Consignation Cash was ⁇ ined. I must admit that we have heard people from the Deposito and Consignateka. Meanwhile, they have gone a very long way to automate so that they can provide better service to the curators and the courts. However, there is still a contradiction between, on the one hand, that monopoly position and, on the other hand, the banks. We have all made a certain contribution to the debate, but I think this needs to be considered further.

There was also a discussion on the obligation of the curator to abolish the ⁇ burdensome procedure for dismissal of protected workers. We have received an opinion on this matter from Minister Onkelinx. In my opinion, it has overlooked the essence because I pointed to an important article that appeared in a journal stating that the Court of Arbitration is concerned. I had hoped that Minister Onkelinx would make a greater contribution. However, I do not mean that the position taken would not be correct. When we talk about such important matters, we need to be informed in the correct way.

Finally, Mr. Minister, I come to the aspect of decorability. Among other things, colleague Vanhoutte has talked about this. Mr. Minister, in your amended version you went quite far, and we scrolled that back so that we found a fairly good balance today. The jurisdiction of the legal person has gone too far. Collega Coveliers has noted that a legal entity can be dissolved or put into liquidation. This debate was also held in the committee.

Coveliers, why is this debate? Why is the integrity of a legal entity still important? Well, even if bankrupt, a legal entity continues to exist, and one of the arguments for declaring a legal entity non-corruptible is the danger that one could use bankrupt legal entities which have been declared non-corruptible to market them. I think it is good that we have blocked that, but we must look at what we do with the legal entity that continues to exist, even after the bankruptcy.

Then there is the aspect of the deposit that can be explained to be dishonest. We have pointed out that the automatic reimbursement of the guarantor would have undesirable effects on economic life. Nevertheless, in the current draft, the court will discharge a generous deposit from his remaining debts, unless he has settled his insolvency fraudulently. We will continue to uphold our objections to such a provision. The credit market will suffer from this new provision. This law, by the way, is approved at the moment that Minister of Finance Reynders leaves to conduct an investigation into the credit shortage. In practice, the collateral will also be easily bypassed by concluding an agreement with two major debtors rather than with a debtor and a collateral to condition an abstract guarantee. We say that such a provision does not belong to the bankruptcy law, but should be considered in the whole problem of collateral and collateral. Their

Mr. Minister, in addition, we ask ourselves whether all this is not unconstitutional, because a deposit that has made a deposit for someone who is subsequently bankrupt is declared dishonorable. A guarantor who has made a guarantee for an ordinary debtor cannot be declared forfeitable unless he is going to follow the difficult procedure of collective debt settlement. That initiative must then be taken by him, while here the deposit can be automatically declared dishonorable by the court itself.

I would like to emphasize both the positive and the negative aspects of the amendment to the Bankruptcy Act. We have also worked constructively on this, but nevertheless I would like to raise some objections. In any case, we are a step further in a better settlement of what is important for the bankrupt person, namely knowing how quickly his bankruptcy can be closed and how quickly he can be re-engaged in the social and economic life.

Nowadays, once one has gone bankrupt, one almost never gets out of it, unless then one is going to carry out a procedure of restoration of honor. This bill ends this and we can only rejoice.

I will also be brief. Mr. Van Hoorebeke promised to be so, which, however, did not prevent him from highlighting in detail the positive and negative sides. I remember vividly the period 1996-1997, when we dealt with the Bankruptcy Act and subsequently the judicial settlement. We could assume that the bankruptcy law was actually constructed. This also proved to be the case in the field. Only we have been able to see that through the efforts made in the second round, we have been able to improve the law through evaluation than before. Some call it an evaluation, others a repair law. This depends on the point of view, which I leave in the middle.

Secondly, I would like to emphasize, as many speakers have also done, the good atmosphere that reigned in this committee. I hope that we will encounter the same positive spirit when we start the discussions on the judicial agreement.

Mr. Speaker, I think that the two objectives underlying the law in 1997, in particular a more humane treatment of bankruptcy and a faster liquidation in case of irreversible bankruptcy, were further introduced.

There is the recognition of a lesser liability of the bankrupt according to objective criteria, which I consider to be a very great advantage.

Unlike you, Mr Van Hoorebeke, I do not think that the guarantee that is actually made out of family solidarity should be viewed in the same way as the professional financial guarantee. For me, there is an essential difference between the two. I am pleased with the measures taken. A number of problems have been addressed and solved. Personally, I have never hesitated to equate the consignation and deposit boxes with other private companies, which can also offer guarantees. However, I agree with the choices made. This has solved an important problem. Following the judicial agreement, I hope for the same good emphasis. Per ⁇ in 1997, with the many efforts for one project, we paid little attention to the second, the judicial agreement. This must still be put on point.

General discussion is closed. The general discussion is closed.