Proposition 50K1285

Projet de loi modifiant la loi du 5 juillet 1998 relative au règlement collectif de dettes et à la possibilité de vente de gré à gré des biens immeubles saisis.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

June 6, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

seizure of goods civil procedure indebtedness

Voting ¶

Voted to reject

Groen Ecolo LE PS | SP Open Vld N-VA MR

Abstained from voting

CD&V FN VB

Party dissidents ¶

• Karel Pinxten (Open Vld) abstained from voting.
• Ferdy Willems (N-VA) abstained from voting.

Contact form ¶

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Discussion ¶

Dec. 13, 2001 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I will give a brief overview of the discussion held in connection with the amendment of Article 20 of the Act of 5 July 1998 on collective debt settlement and, in particular, the amendment of the method of financing of the Fund.

In the committee, the minister stressed that he will present a more comprehensive draft in the near future as many other problems emerge.

As highlighted in the draft, the proposal provides a different solution for the contribution of companies to the Fund, in the sense that it will be directly proportionate to the complications in the debt record. We were also confronted with the government’s urgent request to establish and organize this fund. However, I repeat that the Minister expressly said that the way the Fund operates could raise a lot of problems and that he will propose a wider adjustment of the law in very short term.

During the discussion, we focused primarily on the issue of the establishment of the Fund and its financing method. In this context, the chairman of the committee read a letter from the chairman of the Court of First Instance of Ghent, citing an important problem that is not resolved in the draft law presented at present.

The problem is related to the fact that especially the tax office in the friendly procedure systematically refuses to get rid of tax debts. The committee was strongly urged for a response from the government and I hope that the minister is now in possession of his reply letter to the letter of the Minister of Finance.

Among other things, Mr. Van Hoorebeke proposed to settle the affairs in the same way as in the Bankruptcy Act. However, the Minister favoured the full examination of the present draft and reiterated the call for the establishment of the aforementioned fund.

Mrs Trees Pieters and Mrs Simonne Creyf submitted a number of proposals on additional contracts for the Fund, on information and awareness raising, and submitted an amendment in that regard. The Minister had no problem with this, but unfortunately the amendment was rejected in the committee. We must now wait to see how this assembly will vote on this.

Finally, Ms. Pieters also delivered a presentation on the sanctions provided for in the draft for non-payment of contributions to the Fund, which are disproportionate and almost equal to bread-robbing by the creditors concerned. The Minister responded that he has taken over the proposed amounts.

The Government has submitted an amendment to remove a number of articles relating to the transitional provisions surrounding the introduction of the euro. As the draft became a law after 1 January, these provisions were deleted.

Finally, the bill of the colleagues Bourgeois and Van Hoorebeke was eventually incorporated as an amendment into the draft and accepted by the government. Colleague Van Hoorebeke will say a little more on this subject.

In the end, the committee unanimously adopted the bill.

Mr. Speaker, Mr. Minister, colleagues, the problem of people falling into a debt spiral is known. The Action Welzijnszorg rightly placed its advent campaign this year in the sign of debt loss. They use the following title: “Debt? Who will be better?” It is interesting to know that especially the consumer credit has a ⁇ large share of the debt loss. This science is important if one wants to address this problem preventively. We have a law on collective debt arrangement, which proposes the establishment of a fund to combat excessive debt burden. This fund has not yet existed. To our great regret and dissatisfaction, Mr. Minister, this fund will not be operational until 2003. We have to vote over the neck here on matters that are not good, but the fund will not be operational until 2003! In our opinion, this should be much faster. Finally, it is about implementation.

The draft law, which is presented here, aims mainly to change the functioning of the fund and to improve or make the financing more equitable with respect to the lenders who need to tighten the fund. In the proposed solution, the companies will contribute to the fund financing on the basis of the debit default of the defaults. In other words, the corporate creditors who have a greater share in that credit backfall will need to contribute more to the fund.

The Government proposes to apply a coefficient to the total amount of late payment of the credit agreements. We have proposed to make this coefficient not linear but exponential. For us, it is very important that aggressive lenders are punished. This is an essential point.

In this way, the fund can also gain a preventive character, as lenders who are careless and who carry out aggressive advertising should know that if their share of the credit backwardness subsequently increases, they will have to contribute exponentially more to the fund. The Minister and the majority did not find this necessary, because according to the Minister the intention is not so much to punish creditors, as to stiffen the fund.

Responding to the importance of prevention and debt prevention, our group wants to give the Fund two additional assignments. We want the Fund to also provide resources for public information and awareness campaigns to combat excessive debt burden. We also want the institutions that belong to the regions and are recognized to combat excessive debt burden to also be financed from this fund. Also the Action Welfare Care, which appears to be very widely supported, urges more resources to be used for prevention, to invest more in information and awareness-raising campaigns.

As Mrs. Brepoels just said, the Minister did not object to our amendment, but to our surprise the majority voted against it. That is incomprehensible. It is incomprehensible that the majority would agree to pay the honorary payments from this fund, but that they would not want the fund to be used for the financing of preventive campaigns. It is incomprehensible that parties such as SP.A, Agalev and Ecolo do not support this amendment, especially since the minister had no objections to it. That is why I re-introduce the amendment. I hope that the majority will reflect and change their minds so that we can do more to raise awareness and disseminate information in the context of the excessive debt burden.

Finally, Mr. Speaker, I ask your special attention to an incident in the committee. During the discussion of the bill, the committee received a letter from the President of the Court of First Instance in Gent, Mr. Beaucourt. He pointed out that government administrations such as the Fiscal Office, the RSZ, but also institutions such as Electrabel, are not willing to work on a friendly cleaning scheme. The essence of the case is that in the amicable procedure the tax authority systematically refuses to remove tax debts and thus puts the whole procedure of collective debt settlement on the slope.

This letter, of course, gave rise to a discussion and the chairman of the committee asked the minister to question his colleague of Finance about this. While the Minister of Finance was asked for a response, the committee decided to continue to work. On 27 November 2001, unanimously — majority and opposition — it was decided that this bill would not be voted in the public meeting until the Minister of Justice has received the answer.

At the committee meeting of 4 December we have still not received a response from the Minister of Finance and the majority suddenly decides that there will never be waiting for the advice of the Minister of Finance to vote on the bill. A week before that, it was unanimously decided that there would be no vote, a week later it was decided that there would be no vote. There is still no response from the Minister of Finance.

Mr. Speaker, we also wish that this draft will be approved quickly, but approving a law that is not or is difficult to implement is not an act of good governance, more so because meanwhile Minister Verwilghen, in the context of the budget talks, announces that he will resolve this issue in a separate draft law. I can no longer follow. I think this is another very good example of a quick and efficient administration. A problem was identified in the committee and recognized by everyone. The Minister gives the opposition the right; a question is asked to the Minister of Finance and it is agreed to wait for his answer, but then it is said that there is no longer waiting. The answer is not yet there. One will now approve this bill in the realization that it is inadequate, but in the meantime another minister announces a bill to regulate this. Understand who can understand, but I do not understand. Again, this is by no means an example of efficient and decent governance.

We voted in the committee for this draft because we support this draft. However, we approved this under the agreed conditions, namely that there would be a response from the Minister of Finance before we would approve it in the public meeting. The majority agreed to this. However, the conditions are not fulfilled and unless the Minister can present us with the Minister of Finance’s response now, we are considering refraining from it. I also announced that we will submit our amendment again. In the meantime, it has been distributed around the banks and we will discuss it later.

Mr. Speaker, Mr. Minister, dear colleagues, we were looking forward to this bill with a particular impatience, since it had been deposited on the table more than a year ago. Certainly, at the time, the method of financing provided by loan agencies was different from the formula adopted today.

The current solution to fuel this fund by now requiring lending agencies to rely on the default share makes paying agencies accountable and penalizes those who borrowed without taking adequate precautions. The supply of this fund is essential to complement the existing tools, namely the excusability of the bankrupt and the positive credit central.

We look forward to the amendment of the Law on Collective Debt Settlement on the basis of the assessments carried out by the Over-Debt Observatory. Technically and practically, measures still need to be taken so that all the persons concerned can benefit from these debt mediations without having to suffer the perversity of some current side effects.

Since this dossier has been on the table for many months, I think it is now time to make a judgment without hesitation, even though it can only come into effect in January 2003.

It is true that in the configuration of the current project, this fund will only be used to pay the fees of mediators and the operating costs in the collective debt settlement procedure when the debtor is insolvent. I agree with Mrs. Creyf’s concerns about the need to implement awareness and information campaigns to avoid behaviors that lead to overindebtedness. I also agree with his concern regarding the financing of authorised regional centers to fulfill these debt mediation tasks. I know that before the introduction of this project, negotiations were held between the regions and the federal level, during which issues of competence distribution and federal interference in regional competences were raised, especially since mediation can be carried out through ASBLs or CPASs.

Ms. Gerkens refers to potential competence problems with the regions that already do this. However, it is also the federal government that provides the OCMW’s resources for these debt mediation campaigns. When it continues to be campaigns that come from the government, I see no problem in that they are funded by a federal fund.

OK, but it is important for us that debt mediation work is valued in the same way, whether it is carried out by associations or CPAS. We absolutely want to avoid the accaparement and monopoly of the CPAS in this area.

Negotiations to determine whether the federal can help, whether cooperation agreements can be concluded, etc. In my opinion, it risks taking a lot of time. For me, the real priority today is that this fund is installed on a legal basis, even if its effective implementation will come later. Furthermore, I know that the Walloon Region is also working and negotiating with the federal authority in order to establish different tools. For now, and despite the fears I express here, I prefer things to stay there. Regions also conduct awareness-raising campaigns. We must ensure that one level of power does not paralyze another.

As for this expected response from Minister Reynders, I consider that this problem goes far beyond the scope of this bill. We encounter this difficulty both at the level of forgiveness and at the level of debt mediation. The tax administration, the VAT, the ONSS are bodies that generally refuse settlements amicably. Therefore, if there is indeed an interpellation to be addressed to the Minister, the implementation of this project does not directly depend on this problem, even if it needs to be resolved. For us, it is all the more urgent to settle this issue of settlement amicably with these public bodies that the revenues generated by tax and VAT are lower than those normally planned. It is therefore clear that the Minister of Finance — I think he has already been questioned several times about this — must take steps to make these revenues return in a more efficient way. I also think that the amicable settlement will generate revenues that cannot be expected at the moment from people who are experiencing payment difficulties.

For me, the vote on this bill does not depend on the response of the Minister. On the other hand, we must absolutely call on the Minister of Finance to take measures that go far beyond the text that is proposed to us today.

That is why we will vote in favour of this bill.

Mr Van Hoorebeke, I apologize. It was not so intended. You are also the author of a bill that is discussed here.

Mr. Speaker, the rapporteur and the two previous colleagues who spoke already clarified that the bill responds to an urgent need. It is, indeed, important that the fund, necessary for the proper functioning of the legal system relating to the collective debt arrangement, enter into operation as soon as possible. Therefore, our group, as already stated in the committee by colleague Brepoels, will approve this draft. I would also like to take the opportunity to draw attention to two aspects.

First, there is the bill that colleague Bourgeois and I submitted following the judgment of the Arbitration Court of 1 March 2001, which was eventually incorporated through an amendment into the bill. I am grateful to my colleagues for their support for this amendment. The amendment provides a response to the inequality that had arisen in the context of these legal provisions, as the Court of Arbitration has already described in its judgment of 1 March 2001. I would like to explain this, even though it is a bit technical.

The 1998 Act makes a distinction between those whose bankruptcy was concluded more than ten years ago and those whose bankruptcy was concluded less than ten years ago for those who went bankrupt under the old Act of 1851.

According to the 1998 legislation, debtors whose bankruptcy was closed not less than 10 years ago, but on the basis of the Act of 1851, could not invoke the over-debt scheme. In itself, this was already an inequality. However, the Court of Arbitration in its judgment still referred to an additional inequality with respect to those declared bankrupt after the entry into force of the new Bankruptcy Act of 1997. In this regard, I refer to Article 80, which enabled and extended decorability. This means that those who are declared bankrupt after the Bankruptcy Act of 1997 have the possibility to be declared dissolved and thus exempt from their remaining debts.

By incorporating this into the new Bankruptcy Act of 1997, the legislature has given a new chance to bankrupt persons who have not been declared bankrupt and who have not received a criminal conviction. That was the ratio legis of article 80 of the new Bankruptcy Act of 1997. The collective debt arrangement provided for this inequality. The Court of Arbitration has ruled that, taking into account Article 80 of the new Bankruptcy Act of 1997, the distinction between more than and less than ten years ago is not legally liable and is contrary to Articles 10 and 11 of the Constitution.

In response to the observations of the Arbitration Court, this bill was submitted, which in turn was approved as an amendment. This way the inequality is corrected.

I would also like to address the problem raised by the Chairman of the Court of First Instance in Gent. We cannot put this problem aside because the same problem arises hic et nunc within the framework of the new bankruptcy law, in this case the aspect of dischargeability. After all, we must note that the government creditors such as Finance, VAT, RSZ are systematically opposed to depreciability. The court has the power of appreciation and can lay aside the opposition of the public institutions and express the discretion. The Chairman of the Court of First Instance in Gent has, in my opinion, rightly addressed this problem. As regards collective debt arrangement, we must distinguish between the two procedural periods. First, we go to the friendly debt arrangement. If this does not succeed, it goes to the judicial debt settlement where the seizure judge acts. The major advantage of amicable debt settlement through the debt intermediary is that the debt intermediary has more options, including in terms of term. As regards the judicial debt settlement, the legislator has clearly provided that the maximum period within which the debt settlement must take place must not exceed 5 years. In the context of amicable debt settlement, an agreement is conditioned between the debtor, the creditor and the debt mediator and the period can be extended. The President of the Court claims that he can submit statistics of friendly debt arrangements that exceed the maximum period of 5 years.

It is ⁇ disturbing that government creditors such as VAT, Finance, RSZ, Taxations and also Electrabel systematically oppose a friendly debt arrangement. In the case of a judicial debt settlement, the seizure judge may allow this. This means that the debtor who is already in a precarious financial situation — otherwise he would not have resorted to the collective debt settlement procedure — is obliged to switch from a friendly settlement to a judicial debt settlement. This procedure is not only longer and logger, but also increases the financial costs for the debtor as the debt intermediary takes longer to work and more honorary payments.

Mr. Minister, during the debate on this matter in the committee you have communicated to be open to the criticism delivered to the field workers. You have announced a repair legislation. If I’m not mistaken, you set the target date for the end of January 2002. Mr. Minister, it is, in my opinion, important that you provide us with clarity on this subject and inform us when the repair law will be submitted. We have already approved a repair law following the Bankruptcy Act.

Then we must also be clear about the points mentioned by Ms. Creyf: will the initiative in this regard be taken by you or by the Minister of Justice? I hope that the discussion between you and the Minister of Justice will not last so long that the legal person will eventually become the victim.

We have not received a response from the Minister of Finance on the problem raised and which is acute in the field. We would like to hear from you when that absolutely necessary reparation law will come into force, so that the legislation on collective debt settlement will benefit the debtor. The problem that is now arising and created by the public creditors is in fact contrary to what the legislator intended and intended. These are ordinary debtors who, for various reasons and usually in good faith, have come into such a large debt burden that they no longer get out of it independently and have to resort to judicial intervention. In many cases, this is not easy: by going to court or a debt broker, they actually admit, like a failing person, that they have failed in their lives in controlling their debts. I therefore hope that your reparation law will develop a specific arrangement for that point, as well as for a number of other uncertainties, so that we can work with a system for the collective or excessive debt burden in the future. Whoever calls for it should obtain rightly what he or she asks.

I am aware that the attitude of the taxpayer is the main problem. Indeed, in the amicable procedure, the tax authority often refuses to remove the tax debts. That can indeed put the procedure on the slope and be an obstacle to a cleaning scheme. At the same time, we must not forget that this problem occurs in the friendly procedure. In the judicial phase, the judge may grant dismissal. However, with this communication, I do not want to underestimate the problem.

I interviewed the Minister of Finance about how we can solve or resolve that problem and bypass the rocks. I confirm what I thought, in particular that a legislative change can be useful. We talked about a circular letter, but I think that is not enough. Therefore, a circular letter will not be enough. Therefore, we can ⁇ find a solution to that problem, but I think we should avoid delaying the draft, which would delay the establishment of the fund.

I therefore advocate the approval of the draft, taking into account the fact that we must ⁇ settle the problem of the attitude of the fiscal officer.

Mrs. Creyf wishes to give a replica.

Mr. Speaker, we would like to see this Fund operate as soon as possible, but the Minister has already said that the Fund will not be operational until 2003. What is the benefit of this law today or next week, or the week thereafter? The Minister has pledged that the Fund will not be operational until 2003 and I do not understand why this law should be submitted to a vote in a hurry. While we are still waiting for a response from the Minister of Finance, one wants to vote on the law, because the case needs to move forward.

The Fund will be operational in 2002, or at least as soon as possible.

Mr. Speaker, the Minister has announced that the Fund will be operational in 2003 and he said there is still a lot of work on the shelf. It does not matter whether we vote on this law today or tomorrow, because the Fund will not be operational before 2003.

Mr. Speaker, the Fund can become operational and I would like to reaffirm (...).

Mr. Van Hoorebeke wants to clarify something. You can then respond to both colleagues.

Mr. Speaker, I said that we will vote on this law. It is important that as soon as possible there is clarity about the establishment of the Fund and its functioning. I would like to add, Mr. Minister, that your answer is somewhat unbinding. However, we have sufficiently pointed out in the committee and now in the plenary session that a number of acute problems — you admit their existence — need a solution. I remember that you said in the committee that you would submit a repair law at the end of January or early February.

First, can you confirm this and can we expect this repair law soon?

Second, what do you think of the interference of the Minister of Justice, who has also announced an initiative in this regard? Can you give a little more clarity on this?

Mr. Speaker, I will present a global project and confirm once again that I intend to revise the entire legislation. The tax issue will also be resolved. I plan to submit a bill in January.