Proposition 51K1541

Projet de loi visant à compléter les articles 10 et 46 de la loi du 8 août 1997 sur les faillites.

General information ¶

Authors

Open Vld Guido De Padt, Sabien Lahaye-Battheu

Submission date

Jan. 6, 2005

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

bankruptcy

Voting ¶

Voted to adopt

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

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Discussion ¶

June 9, 2005 | Plenary session (Chamber of representatives)

Full source

It refers to the written report.

Mr. Antheunis, that is a good depannage.

Two speakers are registered. Apparently there is still one valid Chamber member from Aalst-Oudenaarde present. Mr. De Padt, you have the word.

Mr. Speaker, Mr. Minister, Colleagues, for the bill on which we will vote later, Mr. Lahaye-Battheu and I have been inspired by the discourse delivered by Mr. Antoine Lievens, Deputy General at the Labour Court in Ghent, following the solemn opening session of the Labour Court in Ghent on 7 September 2004.

A first point of the proposal is the improvement and simplification of the working conditions of the bankruptcy curator, so that he can fulfill his task more smoothly. For this purpose, the merchant is required to provide the code assigned by the RSZ in his declaration of default of payments, so that the curator can consult the electronic employment register and have access to the necessary identification data. This will give the curator a quick and better understanding of the bankruptcy in order to establish the number of employees and their status in the company and in particular the wage burden of the bankrupt company.

During the hearings and the discussion in the committee, it has been shown that it is not always obvious that the social secretaries quickly put the curator in possession of the individual accounts. In addition, the social secretaries often charge substantial amounts for their delivery, in order to recover their outstanding administrative costs on the curator, although the provision of the information does not involve excessive costs. Since the information is absolutely necessary in order to be able to issue a C4 and other forms to dismissed workers, it is therefore necessary to impose a legal obligation on the social secretaries to make the information available to the curator quickly and free of charge.

A second important point of the proposal is the adaptation of Article 46 regarding the procedure to be followed by the curator, prior to the dismissal of workers and, in particular, protected workers. Until recently, the consultation of the joint committee remained mandatory after the bankruptcy judgment. This put the curator in huge trouble. In recent years, the Court of Cassation has ruled in its case-law that the dismissal arrangement law procedure is put out of force from the date of the bankruptcy judgment. The curator will no longer have to respect that procedure, even if he wishes to dismiss a protected worker. Therefore, we found it necessary to amend the law in that sense.

Given the fact that all speakers during the hearings were almost unanimously positive about the proposal, we assume that it will not be a problem for the Chamber either.

Mr. Speaker, Mr. Minister, dear colleagues, we have long debated, in the committee responsible for issues of commercial law, several proposals of law concerning bankruptcies. In this context, we talked about the fate of workers and we heard several experts.

It is true that the work was long but fruitful. I would like to thank my colleagues for their effective collaboration, mainly my colleagues Massin and Marinower for bringing me their experience, the subject presenting a certain technicality.

I would like to explain in a few words why I submitted this bill. I will not extend on the details or technical considerations because all this is found in the excellent report of Mr. and Marinower. You can also find the opinions of the experts we have heard.

The bill aims to amend the Bankruptcy Act of 8 August 1997 to allow curators to grant advances to workers on the remuneration due to them based on the days paid since the declaration of bankruptcy.

In recent years, our country has experienced many bankruptcies, some highly mediated, such as the Sabena or the Sobelair, others that were much less so but which, in any case, remain equally important in the head of the workers and their families. Bankruptcy-induced dismissals put workers in ⁇ difficult situations because they must continue to meet their financial commitments, whether in terms of mortgage loans, rent, healthcare expenses or school expenses for children. Moving from day to day from a paid job to unemployment has undeniable financial and psychological consequences, often dramatic.

In the current state of legislation, it is up to the curator to settle the fate of contracts, especially labour contracts. Within a period of fifteen days or a agreed period, the curator may either dismiss all personnel, or dismiss them and reengage part of them, or retain them as necessary, in order to ensure the proper management of the liquidation of the assets of the company. If the curator decides to terminate an employment contract within that period, the days spent and the compensatory compensation for notice will be paid to the worker only at the end of the operations, i.e. most likely when the curator has sold the assets belonging to the asset and has distributed the proceeds from the realisation of these assets between different creditors, respecting the order of privileges and after having taken back his own fees and paid the costs related to the management of the bankruptcy.

As a result, some workers can sometimes wait months when it comes to large-scale bankruptcy, for large companies. This is scandalous in so far as the remuneration is due since a work has been provided. That is why, together with my colleague Massin, we submitted this bill, which provides for the possibility for the curator, after the declaration of bankruptcy and before the closure of the bankruptcy, to grant advances with a ceiling on remuneration to workers with the agreement of the judge-commissary.

We know of course that this practice is already possible but what we must emphasize is that from now on it will be immersed in a legal framework. Our intention was to make sure that the worker does not feel left behind in relation to other creditors and that curators, workers and unions become aware that the faculty exists. This is, depending on the availability, a faculty left to the assessment of the curator but also a right for the worker to be able to request this type of advance.

Finally, if the worker makes the request but the curator refuses this grant in advance, the interest will be for the worker to obtain a reason for refusal, if necessary to bring the case before the court or to obtain, if necessary, another curator or co-curator. That is why I insisted on this bill so that it should be translated into a legal text.

Mr. Speaker, of course we will support these proposals, but I repeat the concerns I have expressed in the committee. Their

Following certain jurisprudence in the French-speaking region, the PS has commonly had to submit a proposal using an 80% standard on advances that the curator may grant. In fact, the law previously provided for a wider jurisdiction. I also do not dare to say that that power is now restricted, but it may be that in certain districts judges want to see a limit in this, a certain standard for the curator to stay below it, and that the judges-commissaries, together with the curators, will behave differently. So it could be that in some arrondissements this proposal of the 80% standard has a counterproductive effect. Their

For the rest — I say it again — we are ⁇ not opposed to the proposals and we are sure to see their usefulness. We will approve them.

Mr. Speaker, I have just heard the last speech and I would like to point out that this is not a jurisprudence specific to some French-speaking districts, nor is it a mere will of the PS.

As I said before in the committee, as well as Mrs. God, at some point, there is a signal. An opportunity is already provided for the curator. This signal also allows for other opportunities, including liability disputes and the right to appeal to the trade court, in particular for certain creditors. Obviously, this is what has not been fully understood.

Mr. Speaker, I would like to respond once more.

I thought I understood in the discussions in the committee that Mr. Massin referred to certain less happy statements. I thought he was referring to statements in the French-speaking part of the country, and I understand that. If he now denies using that as an argument, I do not understand it at all. I assume that this was the motivation for the PS to submit such a proposal.

I did not intend to speak in this discussion. As chairman of the committee where the debates took place, I would like to point out that the hearings indeed showed that the proposal submitted by Ms. Dieu was not strictly necessary, but that it was primarily social considerations that prompted the committee to approve this proposal.

I do not believe in signal legislation. I think a law needs to be passed in order to be applied and not to give a signal to judges. Judges know what to do with it.