Proposition 50K1827

Projet de loi concernant la lutte contre le retard de paiement dans les transactions commerciales.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

May 22, 2002

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive payment financial transaction commercial law commercial transaction

Voting ¶

Voted to adopt

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

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Discussion ¶

July 3, 2002 | Plenary session (Chamber of representatives)

Full source

There is too much noise. I will wait a moment.

We are currently discussing a draft law. Mr. Bourgeois has the word in the general discussion. Colleagues, it is one or the other: ou bien vous écoutez, ou bien vous faites semblant, ou bien vous sortez.

Mr. Speaker, I would like to insist in advance on the urgent installation of interruption microphones. During the general discussion, I immediately asked for the word. I understand that it is difficult for you to see everything.

Mr. Minister of Justice, do not let yourself be seduced. You must listen to Mr. Bourgeois.

Mr. Minister, you will soon have a payment delay without you knowing it.

There is still very little interest. Those who are not interested, may be better to leave the hemisphere.

I would like to thank the rapporteur for not presenting the report. In this draft on late payment, I have developed some considerations in the committee. I will not repeat them in detail, but I would like to outline my evaluation of this design in general.

The first is that the government chooses a lex specialis. It happens more often that no choice is made for registration in the existing codes, which I personally find not so happy, more so that the law of 1 May 1913 on the credit of retailers and craftsmen and on the interest due to late payment contains a number of identical provisions. These include invoices from retailers and craftsmen addressed to non-traders and non-workers. The present draft deviates from a number of provisions and concepts of the Act of 1913, which is not very good in the field of legistics. I would like to point out, for example, that in the law of 1913 is spoken about the issuance of the invoice which is proven by the sending of a letter registered at the post. The design does not use the concept of issuance but the concept of receipt of the invoice. I fear that this term will give rise to controversy and legal uncertainty. There will therefore be additional discussions, while the draft is specifically aimed at reducing late payments and ensuring greater efficiency in their recovery.

Secondly, I had pledged to include some in the existing lawbooks. In fact, the Civil Code already contains numerous provisions applicable to commercial relations, the relations between the merchants themselves. I have announced that, in my opinion, there may be constitutional objections, as there is a difference in the treatment of claims of small and medium-sized enterprises against individuals, for example, and claims between traders.

Another problem is the introduction of a new form of interest rate. It is, by the way, a less simple or transparent form of interest, while it is a fixed fact that disputes between traders are governed by the contractual or invoice terms. In this regard, the courts have actually developed a fairly clear jurisprudence. Article 5 raises the interest on the European Central Bank reference rate by 7 percentage points. This interest rate and any modification thereof shall be published in the Belgian Staatsblatt. I refer to the interest rate in public procurement. Everyone must follow in the State Gazette which is now the applicable interest rate. I think that is not the best solution.

Another aspect is that the creditor must be able to obtain an enforceable title for uncontested debts within 90 days.

There are no new procedural rules in this regard. I can understand this, Mr. Minister, but I point out that there is no change in the judicial procedure. However, we are both in favour of its reform. You know that I have long ago submitted a bill to reform the civil procedure. Also the association of Flemish ballies has a design in this regard and you have a preliminary design. I am afraid that, although this was very rarely the case before, this draft will give rise to controversy over the proceedings before the commercial courts. I think that, for example, the open norm of fairness can cause a lot of discussion and that many years will pass before there is a new stabilized jurisprudence of the Court of Cassation. Thus, I think, the new form of interest, the day of receipt of the invoice, the apparently unfair terms will give rise to judgments.

I have pointed out in the committee, Mr. Minister, that, for example, there is a stable jurisprudence regarding damages, which is fairly clear to all traders, who, by the way, are still assisted by lawyers. That case-law allows them to print a claim on their invoice terms and include it in their contracts, allowing them to go to court without additional problems. Now the judge is given a number of new assessment criteria that can also give rise to controversy in the case of uncontested claims, such as the nature of the product or service or the objective reasons for deviating from the legal provisions.

I am not totally positive about the text. Although your representatives have replicated the troubles I have raised, I remain with the problem of possible inequality, the possible constitutional objections.

Finally, the main reason for our reservation to the draft law, which is calculated by a draft law aimed at combating the late payment in commercial transactions, is the possibility of new discussions resulting in delaying the procedure Thus, files addressed in application of Article 735 at the introduction will either be placed on the role or give rise to additional judgments. That is the most fundamental reservation that we have in the draft law.

My speech will be very short. We have been able to exchange views in the Committee on Trade and Economic Law on the transposition of the European Directive concerning the exceeding of payment deadlines.

It is well known that the industry is experiencing serious problems in this matter and that therefore it was necessary to react. Industry has taken the phases that preceded the Directive to repeatedly urge regulatory initiatives. The European Commission itself was initially hesitant because it was difficult for it to intervene in a matter that is essentially determined by trade practices. However, it was understood that it was necessary to take a measure. They say that we have chosen a lex specialis. That is correct, but it was probably the most obvious decision here.

Mr. Speaker, I find that in terms of interest and recovery costs, a lot of transparency comes from the bill. In these circumstances, I think we can move forward.

Mr Bourgeois has also formulated the criticism that in order to effectively guarantee legal certainty, the interest rate must be published by the Minister of Finance in the Belgian Staatsblad, so that one can make an accurate calculation of the interest rate, which will cost an effort and will require follow-up. However, this is similar to other publications that also appear at regular times.

As regards the clause of damages, which is also subject to compensation for the damage caused, I believe that the measures now provided by the law are entirely in the extension of the jurisprudence as we know it. This is a legal confirmation. That does not exclude that there may still be disputes, but also there will be fairly quickly and faster than in the past. In these circumstances, I invite the Chamber to approve the draft law.