Proposition 51K0639

Projet de loi relative à l'insaisissabilité et à l'incessibilité des montants prévus aux articles 1409, 1409bis et 1410 du Code judiciaire lorsque ces montants sont crédités sur un compte à vue.

General information ¶

Submitted by

The Senate

Submission date

June 15, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

bank deposit seizure of goods

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Discussion ¶

March 25, 2004 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker.

I would simply like to emphasize here that the bill that is submitted to us is in the will of the government, and in particular of the Minister of Justice, to fight against bank exclusion.

This project aims to make truly inaccessible the sums that are considered as such in legislation. It will enable people in difficult situations to dispose, in order to support their basic needs, of insurmountable amounts paid into their bank account.

Indeed, the inviolability of the amounts placed on the bank accounts was not guaranteed due to the effect of novation that changed the nature of the amounts, once they were paid into an account. In fact, these protected income no longer existed and could therefore be seized by creditors.

The project is also part of the government’s action plan to increase factor security by limiting the cash payments made by them; the risks of violence against them are very important, as you know.

By establishing effective rules to protect protected income paid to a bank account, the government intends to overcome the reluctance that some have to open bank accounts for fear of seizure.

The proposed text also has its origin in a bill that had been deposited in the Senate by MM. Mahoux and Poty and which has been somewhat modified.

The project presented to us today will effectively allow to organize a system of traceability of protected amounts, by imposing on the debtor of protected income the obligation to assign a specific code to each payment of his income. Protected income paid to a bank account can therefore first be identified and therefore protected.

During the general discussion, the Commissioners mostly supported the philosophy of the project, while formulating some particular, more technical considerations; the payment in cash, in particular, triggering diverse positions and requests for clarification. I will not here address the details of the discussions and amendments that appear in the report drawn up by the services. You will also find comments from the National Chamber of Judicial Officers.

In conclusion, I will tell you that the draft as submitted to you, therefore after amendments, was unanimously adopted by the Justice Committee.

Just recently, I made a mistake: there is, of course, a written report, under your signature: this is the document 639. Therefore, you made an oral report of the written report.

Mr. Speaker, Mrs. Minister, colleagues, I will take the word briefly to emphasize again from this tribune that we, as the VLD, fully support the text of this draft. It is indeed a parliamentary initiative, grown up in the Senate, in which the Chamber has once fulfilled the role of a technical reflection room, where that is normally the opposite. Our work in the committee has therefore mainly focused on removing a number of technical problems and trying to come up with the best possible technical description.

I truly think that this draft is a major step forward in the increasing use of bank accounts as a means of making payments, even for those groups in society that often have the least easy access to them. I think that in addition to making it easier for anyone to pay in this way, it can also be a significant contribution to reducing the unnecessary money transfers and all the security concerns that it brings with it. This is also one of the reasons why this design is important to us.

Specifically, in the course of the debate, we also insisted on a number of points that I would like to recall.

First, the fact that was originally envisaged was that cash payments could also be protected, which opened the door for potential fraud. What enters through a translation is clear from where it comes from. It is also clear that the code mentioned therein is associated with some rationality and objectivity. If someone just comes to make a deposit and one would say to indicate a code there, then there could have been potential abuse. To address this problem, we, together with several other colleagues, submitted an amendment to exclude cash deposits on their accounts. In the course of the discussion there was then a good solution, in which we gave the Minister the possibility to in those cases where it is clear that the cash deposit actually comes from those amounts that were also protected and there can be no problem with the code and the proof of that code, in those cases where it is also not necessary that the bank servant should play the role of judge, also for cash deposits on the account to create that form of protection. That is, I think, an important improvement to the text. A second discussion in which we also played a role is the discussion around debt equalization, in particular the problem that the banks that have the bank account simultaneously, on the one hand, provide the banking service and, on the other hand, are also potential creditors of the amounts that end up on that account. Although there is intellectual — I admit that, ⁇ also to Mrs. Lalieux, who was the promoter of that problem — a good solution, which in some cases also restricts the debt compensation made by the banks, it is clear that it is very difficult to distinguish technically between, on the one hand, the role of the bank as a service provider worthy of no other treatment than that of any other creditor, and, on the other hand, the specific role of the bank in relation to the client whose account is down to zero and where it must still have the possibility to make a piece of compensation for the client that is systematically down to zero.

It is wise that in the course of our discussions we have excluded compensation from this discussion. I am open to a discussion at a later date to introduce the aspect of debt comparison with the banks at that time. There must be a good, closing, technical solution that will need to be developed in consultation with the banks. Furthermore, I would like to take the opportunity to point out that, in the technical development of this text, the relationship between, on the one hand, the members of Parliament and, on the other hand, the Belgian Association of Banks has been optimal to address a number of problems.

Mr. Speaker, our group will fully support this draft.

Mr. Speaker, Mrs. Deputy Prime Minister, dear colleagues, the project we are discussing this afternoon is undoubtedly an extremely important social advance.

Today, we will vote unanimously – I hope, as it has been the case in the committee – a project that will make certain sums such as family allowances or a part of the salary insufficient.

In order to preserve human dignity, in order to allow everyone to keep what to hold, the legislator had planned to protect certain sums from seizure. This protection was thought to be a fence against social exclusion, but paradoxically it has led to another form of exclusion: banking exclusion, which, too, carries out social exclusion. In other words, from the moment when these sums, forbidden to seize, were paid into a bank account, they lost their identity and their protection collapsed because they could no longer be identified. Heavily indebted people, therefore, no longer wanted to open a bank account to be sure to keep their family allowances, for example. But we all know that living today without a bank account is very difficult, requires heavy and complicated steps. How do you calculate your salary or benefits? Who is the employer who still pays from hand to hand? How to pay your bills while postal assignments, circular cheques or other forms of payment generate increasing fees and the same at La Poste.

The bank account has become an essential part of our daily life. We know this, especially since, during the previous legislature, we created a basic banking service conceived as a true universal service as long as we were — and we are still — convinced that the bank account has almost become a product of first necessity.

The law of 24 March 2003, aimed at establishing a basic banking service, addressed the banks’ exclusion of the least profitable clients. The bill we are voting today wants to combat what could be called the “bank exclusion rate.”

This fear of seizure of certain amounts, though protected, limits the effectiveness of the right to basic banking services, in particular with regard to the most disadvantaged populations, who are ⁇ more likely to be subject to seizure measures and who are therefore more likely to be deprived of amounts indispensable to their existence and to that of their families.

The project we are going to look at will therefore be devoted to the protection of these sums when they are paid into a bank account. Very specifically – it was said – the law will allow to identify these amounts by obliging any debtor of an insufficient amount to encode these payments. The amounts to which such or such code will be accrued will be prohibited from seizure.

We welcome the automaticity of the proposed system. In fact, it does not imply any positive action by the consumer in order for the protection to be fully effective.

This principle is, in my opinion, of paramount importance. The persons who are being seized today are — we know it — very quickly overtaken by the various steps to be taken to obtain respect for their rights.

If we stand out and strongly that this project is a real social advance, we regret nevertheless that we have to put a hammer on our enthusiasm. As the Chairman recalled, we regret in fact that no solution has been found regarding the compensation mechanism that is closely linked to the operation of bank accounts. In the absence of this solution, the bank remains a kind of super-creditor who can recover from his account the sums that the account holder owes to him, even if they are in theory protected by the Judicial Code and this future law.

During parliamentary work, I had submitted an amendment to limit this contractual compensation to unprotected amounts but I had to find and admit, during the committee debate, that this solution was not technically satisfactory. I also found that ABB, the Belgian Association of Banks, was sensitive to the need to guarantee an unattainable lifetime minimum on the accounts of heavily indebted persons, for obvious social reasons and also because ABB does not want to encourage hand-to-hand payments that increase the circulation of cash.

The debate surrounding the compensation mechanism is now open: this is another step forward. Conscious of the importance of the issues and the interest that a positive outcome of this debate could represent for all, all stakeholders, and in particular ABB, have committed to working together in the coming months to come up with solutions that would best guarantee unattainable income, while increasing consumer empowerment. We will therefore very soon put ourselves at the table of negotiations with ABB to find a correct solution to the problem of compensation before returning to the Justice Committee.

Finally, two points to conclude. First, in order to be implemented, the bill requires the adoption of a royal decree that will define the technical arrangements for coding. I know that we can count on your promptness to make this law a reality as soon as possible. Then, I repeat it often, regarding the Basic Banking Service Act as well as this one, these two laws will only actually exist if the citizens are aware of it and can therefore appropriate it. Therefore, it seems to me primary to give them broad publicity as soon as they are applied and to all organizations such as mutualities, trade unions and pension agencies.

Mr. Speaker, I will give my presentation on my bench, because this is apparently the only place that the opposition still holds in such debates.

Everyone, and I hope at least the colleagues who have very thoroughly led the debate in the committee, will openly recall that in the previous legislature, at the time that it was decided — mainly for safety reasons — to cease paying child allowances by mail or through a circular check, we immediately asked the then Minister of Social Affairs, Mr Vandenbroucke, about the enormous risks that this entails for the families and for the mothers for whom child allowance was sometimes the only safe source of income in a month. We feared, at the moment that these child allowances would come to a bank account, that they would be immediately taxed by the transfer or seizure.

At that time, Minister of Social Affairs Vandenbroucke had promised us that this would be settled. Finally it turned out that, even after consultation with the association of the banks, not to be such an easy thing.

When it turned out that it was not so simple, we submitted a bill in the previous legislature that should exempt these child benefits and other benefits from transfer and seizure. I am pleased that afterwards others have discovered important social issues and that we have now again, through the Senate, received a draft. With some pride, but also with a demand for fair treatment and honoring who deserves honour: the CD&V faction has addressed this first.

Mrs D'Hondt, I still remember your statement in the debate in the previous legislation. What you say is relevant.

Mr. Speaker, Mrs. Deputy Prime Minister, dear colleagues, at the risk of repeating what has already been said, but to raise the problem in a quite legal way, the problem concerned concerns Articles 1409 and following of the Judicial Code which provide a series of provisions protecting the debtor in default of payment who would be threatened by seizure on the amounts that belong to him.

At present, the payment of these income on a bank account diminishes the protection, as creditors do not hesitate to make deposits on account, provided they obviously know the debtor’s accounts. The main victims of this system are those who are financially dependent, in particular, on CPAS, or those who, being heavily indebted, wish to legitimately enjoy family allowances, as Ms. Lalieux recently recalled.

The aim of this new law is therefore to enable the protection of amounts deemed untransferable and unattainable when they are paid to a bank account. To do this, these amounts will be communicated to the banking body, with a recognition code mentioned on the bank statement.

This is also an important issue for the MR as this problem has concerned him for a long time and very closely. In the previous parliamentary period, Mr. Bacquelaine and Chastel had submitted a bill contributing to the same objective. This new measure will promote the integration of disadvantaged persons into society by providing them with modern means of payment, the use of bank accounts, and by enabling them to use the current means of circulation of money.

Several difficulties and amendments were submitted in the framework of parliamentary work. Indeed, following the hearings of ABB and Test-Achats, which the commission organized, the MR, among others, submitted amendments. The issue of cash payment has been widely debated. It seemed essential for the MR to exclude from the scope of the law, payments that would be made in cash at the bank’s checkpoint. Indeed, firstly, the banker does not have the means to assign a code to these amounts and the law does not assign him this role. Second, and more importantly, abuses could occur. Indeed, how can we verify that these are unattainable sums, paid for example by a CPAS? The control by the banker of the origin of these amounts is totally impractical. Third, the exclusion is also justified by the entry into force of the Basic Banking Service Act, which gives everyone the opportunity to access a bank account, under very basic financial and practical conditions. The exclusion will therefore encourage the use of these accounts, which has a positive impact on factor security and will facilitate payments made by CPAS.

However, we supported the sub-amendment of the Minister of Justice, which allows the King to provide for certain situations in which such cash payments would be allowed. These situations are quite special. This measure should help to find a solution to those situations that could be unfair. However, we ask the Minister to ensure consultation with the relevant sectors, including the banking sector, for the preparation of this royal decree.

On the question of the prohibition of compensation, which was recently raised by Mrs Lalieux, we appreciate that Mrs Lalieux has withdrawn her amendment aimed at prohibiting the compensation of unattainable amounts. Indeed, a consensus could not be found because we feared that this ban would ultimately disadvantage the depository of amounts encoded on its accounts since banks would tend to prohibit credit facilities, domicile facilities and others.

The law shall enter into force no later than on the first day of the twelfth month following that in which it has been published in the Moniteur belge. We must be fully aware that the entry into force of this law will affect a very large number of organizations or companies and individuals. This will involve a lot of practical constraints and significant computer changes. The implementation of the system can be difficult. We must, I recall, be aware of this. In this regard, we rely on the government to ensure adequate information and the necessary support of the persons concerned.

In conclusion, Mr. Speaker, Mrs. Deputy Prime Minister, dear colleagues, our group gives its full support to this text which was transmitted to us by the Senate and which was also unanimously adopted in committee. It will contribute to the fight against banking exclusion. We hope that the government will do its utmost to make this law feasible and will continue its efforts to coordinate with the sectors concerned.