Proposition 50K1389

Projet de loi relatif aux opérations effectuées au moyen d'instruments de transfert électronique de fonds.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Aug. 21, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive consumer protection electronic money

Voting ¶

Voted to adopt

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

Party dissidents ¶

• Luc Goutry (CD&V) abstained from voting.
• Georges Lenssen (Open Vld) abstained from voting.
• Arnold Van Aperen (Open Vld) abstained from voting.

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Discussion ¶

June 13, 2002 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, dear colleagues, I am pleased to speak today as the rapporteur of this bill whose specific objective is to ensure a high level of protection for users of electronic funds transfer instruments.

It is about achieving full user confidence and promoting the practice of e-commerce.

As a reminder, this project incorporates, in the regulation, a recommendation of the European Commission on electronic money transfers. by

The various hearings that took place in the committee helped to clarify the issue and fuel the debate for several months.

Consumer organizations such as Test-Achats have highlighted the improvement that this law brings to the protection of users, in particular with regard to the information given to users about electronic payment methods and the risks associated with them.

I will also insist on risk sharing between users and card issuers.

The issuers, through the Belgian Association of Banks, criticized this bill and the very principle of regulation in this area.

Some technical objections have been met by our commission. The text achieves a fair balance between the interests of the professionals and the necessary protection of consumers.

Companies like banks often see the law as a constraint while it is primarily an instrument of trust that strengthens the social bond.

This project, by making the relationship between consumers and card issuers safer, will enable the harmonious development of electronic payments.

For my part, I am pleased to see that our Minister of Economy resolutely pursues its policy of consumer protection, while remaining attentive to the interests of professionals.

Let us not forget that in the field of payment technologies, our country is at the forefront and it should remain.

Finally, we will keep in mind that the bill was voted by 10 votes for and 2 abstentions, following a series of amendments made in the committee.

Mr. Speaker, Mr. Minister, Colleagues, the draft law that we are discussing now aims to translate the European Recommendation of 30 July 1997 on transactions made using an electronic payment instrument into a law. The objective of the draft is to provide a high level of protection for users of electronic money transfer instruments, taking into account the interests of all parties involved in electronic payment transactions. The draft regulates the rights and obligations of the issuer and of the holder of a payment instrument. Especially after the introduction of the euro and given the increasing use of cards, this regulation is a necessity. The draft was submitted to the Chamber on 21 August 2001. The discussion took almost a year. It took almost a year for the majority to find a consensus that the CD&V had actually offered in its first presentation. Their

Within the majority of voters, article 8 of the draft has been paralyzed. The central article 8 concerns the limitation of the financial risk for card holders in the event of loss or theft. The law distinguishes two cases, in particular the period between the loss of the card and the moment when the bank is notified and the period after the notice of the loss. From the notification, the card holder is no longer liable for what happens to his card, except in the case of fraud. There was actually no discussion about this. There was discussion about the liability of the card holder for the notification to the bank of the loss or theft. A card holder loses his card or is stolen from his card. Who is responsible between the moment of the loss or theft and the notification to the bank? Is the cardholder liable?

The draft submitted by the government contained a provision that actually seemed unlikely to any healthy thinking person. The bank would always have to reimburse the cardholder, also in the period between the loss and the final declaration, also for the funds withdrawn before the notification, also in case of gross negligence and also in case of fraud. There was only one exception. If the bank could prove the fraud, the cardholder remained responsible. In the draft law initially submitted by the government, the bank would in fact always have to reimburse the cardholder. In other words, the card holder was always in the advantage, regardless of negligence or fraud. Their

Everyone knows that most people are honest and that their protection should be central to a legal system, but a legal system should not be such that fraudsters get carte blanche through it. After all, the original provision meant that two people with bad intentions who know each other without any problem, thanks to the law, could scam the bank.

Proving that there was fraud was almost impossible for the bank. A legally covered fraud seems to the commissioners a little too extensive. A solution had to be found. After just a month, the VLD came up with an amendment, which completely reversed the burden of proof, making the consumer completely cold. The consumer stands naked in front of the bank. This too did not continue, because this too went too far. Consensus was sought and, after a year, we are happy to have found that consensus: until notification to the publisher, the holder is liable up to a sum of up to 150 euros, except in cases of gross negligence or fraud.

The question of evidence whether there is negligence or fraud is transferred to the judge and the judge will have to judge the facts.

The bill, as it could be amended in the meantime, is a good bill for us. We will approve it.

Mr. Speaker, Mr. Ministers, Colleagues, today we are discussing a fairly important bill that should regulate electronic payment transactions, primarily the transactions carried out with bank cards.

The draft law aims at improving consumer protection and this deserves our full support in this area. Most of the design meets this goal and therefore does not cause problems.

Nevertheless, in the committee we have expressed our concerns about a series of provisions that we consider to have gone too far and now still go too far in some sense.

Before discussing these provisions, I would like first to make two other not insignificant remarks.

First, the draft results from a European recommendation and a recommendation is not a directive. Furthermore, this recommendation is currently under review. The question then arises why the government has submitted this regulation. Is there not the danger that the legislation will soon have to be re-adjusted?

Secondly, the question arises about the relationship between this bill on the one hand and other initiatives in the field of e-commerce, ebanking and e-government, such as those relating to electronic signature and certificate services on the other. Are they complementary to each other?

Thro ⁇ the e-world, the safety principles are based on the non-denial of transactions signed with an electronic signature. The Belgian Act of 9 July 2001 laying down certain rules relating to the legal framework for electronic signatures and certification services is also based on this.

In my opinion, it is far from certain that the current bill also upholds this concept of non-denial.

The Belgian system of electronic transactions via bank cards is currently among the safest in the world.

It is about 70 complaints on a total of 600 million transactions in 2000. It was surprising to find that in the bill was considered to introduce an inverse of the burden of proof, ⁇ because this was not in accordance with the European Recommendation. Furthermore, the reversal of the burden of proof does not exist in any other country, even in those countries where the security of electronic payment systems is less guaranteed than in our country. The VLD has submitted amendments to the committee to correct this situation. Not everyone disagreed with us. Several political groups in the committee have rightly noted that such reversal of the burden of proof will contribute to consumer fraud. Not only the banking sector will be the victim of this, but also the consumer who behaves according to the rules.

Everyone agrees that the legislation itself should not incite to fraud. That is why, after a lot of discussions, the government has proposed an intermediate solution that is a step in the right direction but, in our view, still contains a fatal deficiency. The interim solution consists in the fact that the holder remains liable until the notification up to a sum of 150 euros — as Ms. Creyf has already stated — unless the holder has acted in gross negligence or fraudulent. The law determines what should be understood by gross negligence. As regards the assessment of negligence, the court must later take into account all factual circumstances. This seems to us logical. However, the law continues that “the making of registrations by the issuer referred to in Article 6, paragraph 8, and the use of the means of payment with the code known only to the holder do not constitute sufficient presumption of negligence by the holder”. The loss of the card and the carelessness of forming the code will not be sufficient suspicion of carelessness due to the holder, even if the bank — the issuer thus — proves that nothing went wrong with the transaction. If this is not negligence, what then? This is an open invitation to fraud. If I give my card to a friend, give him the code and let him take my money and then tell the bank that my card was stolen and a so-called unknown took my money, the bank is powerless and must compensate me.

Mr. Minister, we are, in my opinion, back down. The great danger that this provision incites to reward fraud and negligence remains. Moreover, this seems to us to be a strong interference in the judgment of the judge. The autonomy of the judiciary is severely curtailed.

Mr. Speaker, Mr. Ministers, colleagues, it is not our intention to throw away the child with the bath water. Despite these significant shortcomings, the bill ⁇ has qualities. For all these reasons, we, the VLD members of the business committee, will abstain so that we are consistent with our attitude in the committee. We are sending an important signal. The other members of the VLD group may approve this draft.