Proposition 51K1078

Projet de loi portant le Code de droit international privé.

General information ¶

Submitted by

The Senate

Submission date

July 7, 2003

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

private international law

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld N-VA MR

Abstained from voting

FN VB

Party dissidents ¶

• Nahima Lanjri (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

June 24, 2004 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, a printed version of the report was distributed around the banks and was distributed by carrier yesterday.

Thank you for the explanation, Mr Borginon. If no written report is available, the Chamber must be informed orally.

Mr. Speaker, Mrs. Deom and I agreed yesterday to refer to the written report.

I can allow that because the Chairman of the Committee on Justice has pointed out that the written report is available to the members.

Mrs Van der Auwera, Mr Courtois and Mrs Lanjri registered for the general discussion.

Mr. Speaker, Mrs. Minister, colleagues, today is a very important day for those dealing with international private law. Today, a Code of International Private Law is being proposed. In this way, the widespread, old and incomplete texts on international private law are eliminated.

During the committee meetings, many people emphasized that for many law students international private law was a well-known tube field. For new law students, this code will also be a significant solution. In 1996, then Minister of Justice Stefaan De Clerck officially commissioned a group of Belgian professors to draw up a comprehensive code. It has been worked very hard all those years and the result may be there. It has succeeded in creating a well-readable and yet relatively concise code characterized by great transparency, by the structure and coherence of the rules issued, by the modernity of the regulation and by its internationalist spirit.

There was indeed an urgent need to introduce a set of principles to regulate the matters of family law, bond law and commercial law relating to foreign and foreign law. Not only is the small number of legal rules available to us widely spread across all sorts of legal texts, but many provisions are also outdated and create more problems than they solve.

Judges and administrative authorities need a reference framework and clarity on a number of sensitive issues. The Code of International Private Law has the merit of eliminating numerous uncertainties for many foreigners residing in Belgium, for many Belgians who carry administrative acts from abroad or who face a foreign judgment.

The CD&V group is therefore pleased with the result and will support the bill.

Mr. Speaker, Mrs. Minister, dear colleagues, this draft aims to introduce in our legal order a Code of International Private Law, which governs, in a situation with an element of extraneity, the competence of the Belgian courts, the determination of the law applicable and the conditions for the effectiveness in Belgium of judicial decisions and foreign acts in civil and commercial matters. Currently, the provisions of international private law are fixed in separate, old and outdated texts. As regards the determination of the applicable national law, for example, they are found mainly in the very general terms of Article 3 of the Civil Code, the wording of which dates back to 1804. Most of the solutions are therefore today of jurisprudential origin, which has the advantage of an adaptation to sociological developments, but also the disadvantage of legal uncertainty.

In this context, the main objective of this project is to provide a comprehensive and coherent vision of a set of rules that affect an increasing number of citizens and ⁇ . Then, by the fact of the globalization of the approach, the project tends to ensure transparency of the rule of law in international private situations. The proposed text originates in a bill submitted to the Senate and is the result of 10 years of work.

As part of the general discussion in the Justice Committee, all the speakers also highlighted the quality of the work carried out by the Senate and insisted that this project be promptly adopted.

As a rapporteur, for the surplus, Mr. Speaker, I allow myself to refer to the written report prepared by the services of our assembly. In this regard, in addition, since the reform is of such an extent, I can only invite the reader in search of information to also consult the reports of the work carried out in the Senate.

I would now like to present to you very briefly a few more specific comments of the Socialist Group concerning the project that is presented to us today. This project is undoubtedly an event of great importance. Indeed, it is not every day that our assembly examines a code. As such, I would like to once again, on behalf of the Socialist Group, emphasize the quality of the work done by our Senate colleagues.

This project constitutes a legible, coherent and structured whole; three especially important elements in such a complex subject that has an impact on the daily life of hundreds of thousands of Belgians and foreigners living in Belgium or conducting their professional activity there and of Belgians residing abroad.

I would like to emphasize in particular the importance of sometimes innovative solutions held in the family area. These solutions attempt, in a sensitive and important matter for citizens, to stick to the evolution of society and therefore to the reality of relationships, through an objective of proximity rather than resorting to abstractions or legal fiction. In this context, the wider application of Belgian law to families residing in Belgium is ⁇ an important element of legal, social and cultural integration.

The recommended solution to the problem of repudiation is a balanced compromise solution. Indeed, while it is indispensable to question the abject nature of this procedure, it is equally unacceptable, in the name of the pure and harsh application of the theory of human rights, that the victim of this act, namely the woman, be doubly victimized.

By opening up the possibility — as does Article 57 of the draft — to recognize this act in Belgium under a number of strict and cumulative conditions, the text avoids this double sanction. On the one hand, punishment by repudiation and, on the other hand, punishment by the possible impossibility to restore his life, to take a new start by re-marrying with a man probably more respectful of the rights of the one who accompanies him. This article — like the others — illustrates the modern character of the text that is presented to us. The adoption of this text will be a wonderful gift for the two hundred years of the Civil Code.

Mr. Speaker, I will not talk about the entire part of international private law because colleague Liesbeth Van der Auwera, who was, by the way, a reporter, had already talked about it. I would like to mention a specific article, namely Article 57, which deals with the recognition in Belgium of the discharge under certain circumstances.

Displacement should be rejected in principle. This form of divorce is contrary to the principle of equality between men and women, to various international treaties and to the Constitution which enshrines the equality of men and women. In my opinion, bullying is and remains also in violation of public order and the rights of defence, as well as the rights of women.

This is defined in the draft law. In fact, the draft law establishes the principled rejection of the rejection and only allows the rejection when very strict cumulative conditions are met. However, I have the following concerns. Offenders and victims of mutilation are treated in the government bill in the same way. In that context, I refer to the situation in France in which dismissal is not recognised, not even in the case of dismissal of partners who lived there at the time of the dismissal, while the dismissal was pronounced, for example, in Morocco between nationals of another country. Even in that case, France does not approve rejection and there is a ruling from the Court of Cassation.

Apparently we are going on. Daders — in most cases it is men, but I leave it in the middle — should not, in Belgium, according to me, be allowed to apply for recognition of the distortion. That right should be reserved for the victim — in most cases the woman — because she is the victim of unilateral rejection. For all clarity, a divorce is something completely different from a regular divorce. In the case of a displacement, a woman remains “hanging”; she is married, not separated. She cannot then marry someone abroad, if she wishes, because she is said to have not yet divorced. That is a problem. That right can therefore be reserved in very specific cases, but only at the request of the victim, i.e. the woman. Otherwise, the woman often risks to become the victim twice: first, because she has to undergo a mutilation and again, for example, because she is unable to re-marry. According to Article 57 of the draft law, it is necessary to verify whether the rejection was indeed accepted in an unambiguous manner and without coercion by the woman, but I believe that it is not always possible to verify that, especially when, for example, she is accompanied by her ex-husband who may put her under moral pressure. I think these women will not always have the opportunity or the courage to subsequently go to a judge to tell him that they did not actually agree with the rejection.

I am not alone with this criticism. The State Council says: “Article 57 is not a guarantee for the absence of coercion. It is much better to say that it is contrary to public order.” Therefore, the State Council also demands not to recognize the rejection.

In my view, in Belgium, punishment should not be recognised, except at the request of the victim or of the person against whom the punishment was issued. It’s almost always about women and I think their interests should be at the forefront. If I would stick to a complete and principled rejection, it would mean that they cannot marry. We must not let them be victims twice.

I would also like to refer to the opinion of the Advisory Committee for Equal Opportunities of the Senate. One of the opinions is that the recognition of the rejection should remain reserved to the rejection woman as a victim under a number of strictly limited conditions. This is literally stated in point 4 of the report. The Centre for Equality of Opportunities and for Combating Racism also says that distortion in principle cannot, unless the interests of women are the starting point: they must not be the victim twice. There are still amendments needed to this article. Everything else is accepted, that is no problem.

I will not submit my amendment, because I do not want to make an unnecessary delay of the whole. I know that this has been worked hard. I ask the Minister to take my comments into account. The proposal has yet to be passed to the Senate and the colleagues in the Senate can consider it and adjust it. I hope this can be resolved, otherwise I will have to prepare a new bill. I will abstain, but my group will approve.

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, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. It was submitted to the Senate as a bill by all the democratic groups but was drafted at the request of the Minister of Justice, in 1996, by a group of university professors to whom today we must thank, especially the professors Fallon and Erauw who were present throughout the committee debates.

This new Code brings together the rules for determining the jurisdiction of national authorities to deal with a private case of international character, to designate the national law applicable to the case and to determine the conditions under which a foreign judicial decision or a foreign authentic document may take effect in Belgium.

The MR group is ⁇ pleased to see the outcome of this work whose elaboration of the text dates back several years. International private law takes on an increasing importance in our society which advocates the movement of goods and persons, which internationalizes and which often sees the relations between these persons become more complex.

We were able to measure the importance of codifying a matter with a wide scope of application. International private law concerns various subjects: the right of persons (divorce, filiation, adoption, transmission of name, maintenance obligations), the rules relating to nationality, intellectual property, the regime applicable to stolen property, contractual relations, employment relations, the arrangements governing the situation of legal persons. This listing is only exemplary but it makes us aware of the importance and extent of the bill that is submitted to us today.

Currently, the provisions of international private law are fixed in separate, old and partial texts. It was therefore indispensable not only to codify but also to harmonise and update some of these provisions.

The Code has three main objectives.

The first is the goal of transparency. This objective, pursued by bringing together in a single Code dispersed provisions, by clarifying existing rules – for example, following the evolution of jurisprudence, the prescribed of Article 3 of the Civil Code no longer corresponded to its meaning – and by simplifying the formulation of the rules. In Europe, only Belgium, France and Luxembourg have not adopted this type of Code.

The second objective is adaptation to evolution. The Code takes into account the jurisprudential evolution of the texts dating from Napoleon. It is also necessary to adapt the rules determining the law applicable to situations arising from the international movement of goods and persons. The relationship of national legislation with citizenship has changed, it is increasingly easier to change citizenship, more frequently deviating from its permanent character. Moreover, there is no longer systematic unity of nationality within the same family.

It is also an opportunity to adapt the law to the evolution of fundamental values.

The third goal is an objective of international openness. A code ensures recognition of rights regularly acquired abroad and forces the practitioner to consider the possible applicability of a foreign law.

I would also like to highlight several topics addressed that deserve special attention and have an innovative character.

The usual residence factor is ⁇ the newest criterion introduced in our code. However, it is not new if one considers the evolution of texts, especially at the international level, this criterion being gradually imposed over that of nationality. This usual residence factor meets the objective of modernity. The concept of habitual residence is determined by the use of essentially factual data, such as the permanent establishment, the centre of life or the will to settle permanently — not to be confused with the criterion of domicile. This habitual residence factor is therefore called to play a major role as a linking factor in determining the applicable law. It gives the judge some freedom of interpretation, in the application of the rule, to a significant variety of concrete cases. This was worth emphasizing.

Next, I would like to say a word on the question of the recognition in Belgium of an act of repudiation, validly issued abroad, a question that has caused long debates in the Senate. The solution that has been submitted to us by the Senate has met our support. Indeed, it seems to us reasonable not to rule out any recognition of an act of repudiation in a firm manner. Our legislation must be able to give effect to a repudiation when, at the time of the act, the couple relationship did not present any connection with the Belgian State and provided that the woman accepts the dissolution of the marriage in this form. This solution prevents a woman victim of repudiation from still having to initiate a divorce procedure if she wishes to see her marriage dissolved.

I would like to return to the issue of marriage between two persons of the same sex. The adopted solution provides that if a provision of the national law of spouses or one of them prohibits same-sex marriage, the application of those provisions shall be excluded provided that one of the spouses is a national of a State or resides habitually in the territory of a State that allows such marriage. It seems to me necessary to recall that a marriage between two persons of the same sex under this article may not be recognised in certain foreign States. It is therefore essential that the persons concerned are duly informed of the effects of such marriage in relation to international private law. I also have a little regret to express on the form and not on the substance of this matter. I think it would have been desirable to wait for the adoption of this Code to apply this rule. In other words, it would have been better to put the circles in compliance with the law and not vice versa.

Finally, a few words about adoption. Certain provisions of the Code present complexities that may appear at the adoption service such as, for example, the question - discussed in a committee - of the recognition in Belgium of an act of aptitude to adopt validly obtained abroad.

It seems to me necessary that the Ministry of Justice, after the entry into force of this bill, provide support to the adoption service that would encounter practical implementation difficulties.

In conclusion, Mr. Speaker, Mrs. Minister, dear colleagues, we believe that the solutions adopted bring the desired clarifications and express the political orientation adapted to the needs and values of society. I will here allow myself to resume Professor Fallon’s conclusion: “We can see the concern of favouring, as far as possible, in family matters, a legal integration of foreigners living in Belgium and, in economic matters, a clarification of the nature of favouring the security of commercial transactions.”

It is for all these reasons and because the Code that has been adopted unanimously is clear, precise and modern that the MR will support this bill.

Mr. Speaker, Mrs. Minister, colleagues, let me say that this is a very important text for the practitioners. Many of us have ever taken courses in law and the subject of international private law was not ⁇ a subject that students dreamed of taking an exam in because of the lack of any form of codification. This is what we offer a solution to today.

I think it is important, honor and honor, to reiterate here on this tribune once again that this work is the result of a committee of experts, including the professors Erauw and Fallon who are present here and a number of other experts who have worked on this for years. They have also had extensive contacts with the administrations that will have to implement this law. Subsequently, this already overwhelmed work was once again extensively addressed by the Senate with thorough discussions around the most sensitive points. It is such an important and urgent design, not in the sense that if it is not approved tomorrow there will be a catastrophe, but for which the demand from practice is so huge, that any urgency in it is important. Therefore, we have chosen in the Chamber not to overlook the thorough and very extensive work of the Senate. We have limited ourselves to a classic, normal treatment of the design without trying too much to do the work of the Senate.

I think there is an article in the draft — Ms. Lanjri has already pointed out — that you can continue to discuss for a long time. It is about the famous article 57 which, to a certain extent, involves a form of recognition of the denial. It is useful, however, to recall for a moment the genesis of the text presented today.

Initially, in the text submitted to the Senate, an attempt was made to give shape to what was recognised in the jurisprudence until then, either in our jurisprudence or in a number of trends that could also be established abroad. This has received a lot of criticism in the Senate, precisely because it would actually result in too much recognition of the rejection. The Senate has in its wisdom decided to amend this text thoroughly.

What is now in the text? Paragraph 1 states very clearly that the extortion is in principle not recognised in Belgium. This is a novelty that the Senate has introduced in comparison with the original text. It is also that general principle that in practice must normally be applied by, for example, civil servants. Those who register with an act of disqualification with an official of the civil status will normally be answered that this cannot be done and that this is not recognised in Belgian law.

It is only in the specific problemology of international private law that through a combination of legal technique, you sometimes have to be able to give a number of legal consequences to acts in which we in themselves have some doubts. The Senate has found a formulation in which in a very limited number of cases the principle refusal of the official of the civil stand can be broken by presenting a number of matters as evidence.

These are cases in which, at the time of the dissolution, there was no form of connection with a country where the dissolution was not accepted and which also provide the necessary guarantees that, unlike the traditional dissolution, the wife with this dissolution of the marriage is accepted in an unambiguous manner and without any coercion. It is clear, and that is also one of the reasons why I will emphasize this for a moment, that the burden of proof for that absence of coercion and that unambiguous acceptance of the rejection by the woman lies with the one who asks it, and that one cannot simply assume that, since there is one or another vague document, that acceptance is there.

Other safeguards are included in the text, the general safeguards when it would be contrary to the rights of defence, when some form of public order would be compromised. You can also refuse for these reasons. In addition, it is repeatedly stated that only in those cases where there is a homologation and recognition by a judge in the country of origin there can be a possible recognition of the disposal in Belgium. This is not the case in all countries where the discharge is used. Especially in the Asian countries there is no judge between. All these cases are therefore excluded.

In other words, we are here confronted with a text that in I would say 99% of the cases the distortion does not give any legal effect under Belgian law. The only reason why an exception exists is precisely to give a number of persons who are victims of a distortion a legal remedy to have some legal effects approved in Belgium.

We are, of course, confronted with the question — Ms. Lanjri has formulated this very correctly — whether or not the text as it now presents needs to be refined to distinguish between, on the one hand, a victim who invokes it and, on the other hand, the man who at the time committed the reproach. Now, of course, we could have quickly adjusted that text, but I think the correct formulation of it would have brought about a debate that would threaten to cause the whole debate that has been held in the Senate about the rejection to take place again. While it is an important debate, both social and legal, I think that the importance of the whole of this draft also requires that we try to move forward with this. It does not matter that if in the Senate, either following the discussion that will be held on this story again, or by means of a bill to be made to more specifically refine this given, those who at that time have achieved this consensus conclude that it still needs to be refined, I would like to undertake, if further work would be needed for this purpose in the Chamber, that as soon as possible and preferably in parallel with the entry into force of this draft, a good ending be made. However, I think that the correct legal formulation of such an element is not so easy. There is a problem with how to formulate it perfectly. However, the importance of the design as such also requires that we can vote on it today.

Mr. Speaker, the speaker just said, it took several years of work to erect such a code of international private law. You may not know it, but this code has the approval of all the professors of international private law in Belgium. Professors Erauw and Fallon again followed all the work in the Chamber Justice Committee.

We have a text of very high quality, the result of an agreement between the Parliament, which had submitted the initial proposals with the help of university professors, and the Government with its administration, which formulated the few amendments that it considered indispensable for the text to be perfect. This is what we are now asking the parliament to vote for: a code. This situation does not occur every day. This is a big day, I think. And in the field, in everyday life, thousands of people, given the world that is increasingly internationalized, are faced with situations with elements of extraneity. I repeat, for the everyday lives of people, for university students and law practitioners, this is a great time.