Proposition 51K1920

Projet de loi relatif à l'exercice de la profession d'architecte dans le cadre d'une personne morale.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

July 7, 2005

Official page

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Status

Adopted

Requirement

Simple

Subjects

liability organisation of professions building industry contractual liability legal person town-planning profession compulsory insurance insurance

Voting ¶

Voted to adopt

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

Abstained from voting

FN VB

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Discussion ¶

Jan. 12, 2006 | Plenary session (Chamber of representatives)

Full source

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, 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,

In its introductory presentation, the Minister for Medium State outlined the current regulation in relation to the responsibility of architects. The architects are liable for ten years for defects in the construction of works they have designed. Unlike contractors, for whom a ten-year liability applies, the architects should take that liability personally. The reason for this is that for them there was no limited liability possible through a company.

The draft law aims to address this and therefore provides for the possibility for architects to organize their activities within the framework of a legal entity and thus enjoy the benefit of a limited liability.

The design also wants to ensure a larger and more adequate coverage by means of a legally mandatory insurance.

The limited liability within the framework of a company provides advantages for both the building owner and the architect.

For customers, a legal entity is usually better armed to challenge the increasingly complex aspects of the architect’s profession. It also provides a stronger and more transparent structure to better cope with any liability liabilities.

For architects, exercising within a company means a smoother transfer of the customer base at the end of the career. This also prevents the survival of a ten-year personal liability, which still applies long after the end of its activities or even weighs on its heirs.

Finally, the draft also provides for the obligation for the Order of Architects to publish a list of all registered architects and all trainees. Such publication shall enable the architect to verify whether the architect to whom he wishes to resort meets the conditions for the exercise of the profession.

In connection with the order, the draft provides for a control procedure for the contributions and the budget of the order. It establishes a system similar to the one applicable to orders of other freely regulated professions.

Finally, the Minister stated that the draft was preceded by extensive consultations with the provincial councils and the national council of the Order of Architects.

Following these talks, a number of associations were heard.

The first speaker was Mr Jos Leyssens, Chairman of the National Council of Architects. He stressed that the National Council of Architects fully supports the Minister’s legislative initiative. He also called for a prompt processing of the bill.

The second speaker was Mr. Bart Verstraete, general director of the National Architect Association – Flemish Architect Organization. Like the previous speaker, he was very pleased with the present draft. However, as regards the legally mandatory insurance, he regretted that its modalities had not yet been established.

Finally, a third and final speaker was Mr. Jan Van Breedam, spokesman and chairman of the Dutch-speaking Councils of the Order of Architects. He proposed a number of text adjustments. His concern was primarily about safeguarding the independence of the architect. The text adjustments proposed by his association were therefore mainly concerned with this. On the other hand, he was also satisfied with the fact that by the design the profession of architect can be exercised by a company.

After the aforementioned speakers were heard, there was the opportunity for the members to ask questions. Following the responses of the invited participants, the committee opened the general discussion.

Ms. Pécriaux pointed out in her presentation that the design had been made at the request of the sector itself, in particular of the Order of Architects. Her group is favorable to the design.

Mr T'Sijen formulated three concerns regarding the draft. He also asked about the specific timing of the implementing decisions.

Ms. Pieters pointed out that the hearings highlighted some interesting elements. He did not comment on the bill itself. He wanted to vote as soon as possible.

Mr Depoortere noted that the draft received both the support of all the political groups and the support of the working area. He also referred to the resolution submitted by his group on the division of the National Order of Architects. Finally, he wanted to know the timing for the split.

Mrs Turtelboom also noted that the design was received very favourably by the architectural organisations.

Chairman Paul Tant made a number of comments on Article 14 of the draft. In that article, a number of powers are conferred on the Minister of Medium.

Finally, Mr Lano asked the Minister whether or not the mandatory insurance would have a flat-rate character.

Following the responses of the Minister, the article-by-article discussion of the draft was passed. Several amendments were submitted. Some of them were accepted.

The amended draft was subsequently adopted with 11 votes in favour and 2 abstentions.

There is a small problem that Mr. Tant addressed at the Conference of Presidents. I would rather not have an amendment, but a text improvement.

Mr. Speaker, I must tell you that in the long run I do not understand it anymore. For weeks, there has been a debate about how to correct a material mistake. In the end, everyone agreed that if it is actually a material error, the text should be adjusted and no amendment is submitted. C’est l’un ou l’autre. Then there are two possibilities. Either the amendment is ⁇ ined, but then the committee must formally withdraw. Even easier, if everyone agrees, ...

The President: Withdrawal ?

and right.

Yes, that sometimes brings something up!

I know that such a behavior is not Catholic.

In this debate, the amendment must be prompted (Article 3, amendment no.

Mr. Speaker, Mrs. Minister, I would like to intervene briefly to support this bill which I find good, but also to highlight some issues that will need to be taken into account for the future.

I would like to put a first note regarding the custody on contributions under the Orders and which has been the subject of discussion in committee. The Orders agreed that there would be control, real transparency of their budget and some of their contributions. As part of the hearings, they had also raised two good arguments: the first was to say that the Order is a completely private mechanism that does not receive any subsidies and that is self-financed. It is therefore logical that we provide the necessary contributions to feed the services so that this Order can work. The second argument highlighted the fact that the Order fulfils certain disciplinary tasks and that, therefore, it might have been better to avoid this tutelage of the executive power. This guardianship system has been ⁇ ined and I hope that the discussions on this matter will take place in the same understanding that we had during the defense of the project, where everyone agreed on the proposed text.

Per ⁇ I would have preferred a marginal control mechanism, for example. I hope that you will use this new prerogative that is offered to you and that you will adopt this new tutelage by modifying the proposals made by the Orders only if they are manifestly unacceptable.

The second element on which I can allow myself to put a note concerns the obligation of insurance by architects. As I have heard from the mouth of many parliamentarians, regardless of the political party, if the obligation of insurance by architects is eminently positive, it should be extended to other professions close to construction. In particular, I think of entrepreneurs and entrepreneurs. Indeed, it is important that this insurance does not serve a milk cow: it would not be necessary to always turn to the architects under the pretext that they have this obligation of insurance and that, therefore, they are always solvent.

It is therefore preferable to have an insurance system that would cover all professions. I also call on the Minister of Economy, who makes us the pleasure to be present. Mr. Minister, it is also your responsibility to extend this insurance obligation to other professions in the context of construction, in particular to real estate promoters and entrepreneurs, to complement this insurance component implemented today in the context of the profession of architect.

The third element on which I will issue a certain remuneration relates to the terms of this insurance contract. Ms. Pieters intervened in the committee saying that it might have been better to provide for the precise terms of this insurance contract in a law text in order to discuss it as widely as possible and not omit any terms. This was not the case. It will be your responsibility, Mrs. Minister, to provide for the modalities to be included in this insurance contract, in particular the multi-professional component of which we have talked a lot in the committee.

I really invite you to work in accordance with both the sector and the Order and the professional associations present at the level of architects and in the world of construction. The conditions that will be provided in this insurance contract are essential. It is imperative that they are optimal. This is a prerequisite for the success of this project. Unfortunately, this point has not been discussed as part of this bill, but it will be taken back in a royal decree. It is essential that the latter is optimal and written as clearly as possible.

We also have three reasons to welcome this bill. The first is better protection of the architects themselves. Indeed, these architects can now work in the enterprise while seeing their limited responsibility, not having to systematically engage their private heritage. Their liability can become a limited liability. It is normal that architects, like other professions, can limit their liability, but the duration of this limitation is obviously the obligation to contract insurance. Indeed, it would have been unacceptable that the master of the work would not be protected and could not be compensated for all the problems he would have to endure.

It was imperative, in order to limit the responsibility of the architect, to draft in his intention the terms of a compulsory insurance contract, which must be included in your royal decree, Madame la ministre. This requires me to remind, once again, the importance and crucial nature of the modalities that this insurance contract must cover in the future. by

Therefore, a better protection of the architect by this society and by this obligation of insurance, a better protection also of the master of the work by this obligation of insurance and by this list of architects, which will be published today. Anyone can therefore have access and know the list of approved architects, worthy of trust in the level of insurance, the quality of their work, the recognition by their professional order. I consider it more than appropriate for the master of works to have such a list allowing him to know the architects to whom he can address. This is the second reason for satisfaction.

The broad consensus encountered by this text is the third reason I am delighted with. Indeed, some people, during the hearings, highlighted some bad things, as I just did. At the same time, the goal to be achieved is excellent and the way to do it is going in the right direction. This obligation of insurance, this obligation to limit the responsibility of architects, the establishment of a list of architects, all these positive elements contributed to the consensus reached between the professional associations close to the architects and the Order of Architects. by

I repeat that all these measures are positive. However, they still need to be concretized in the royal decree that you will have to take and in which the terms of the insurance contract will be defined. This element is crucial and central. The future of this text, which each calls out of his wishes, depends on this royal decree. by

Furthermore, I dare hope that its modalities can be defined in the same climate as that which was known in the committee and which allowed us to vote unanimously on the text that is proposed to us today.

For all the reasons I have just mentioned, we will vote on the bill that is submitted to us.

Mr. Speaker, colleagues, as evidenced by the report presented by Mr. Hove, the discussion of the bill in a fairly smooth atmosphere took place in our Chamber Committee. Everything went smoothly and the debate was interesting.

The bill provides a legal framework for compulsory insurance for architects and also provides the possibility for architects to exercise their profession within the framework of a legal entity. That is a noble goal.

The hearings we held, in the end, despite the Minister claiming to have heard all parties, have been of particular interest to us and have also led to the formulation of a number of amendments, which were discussed in the committee. A significant part of our amendments were accepted.

I can participate in the discussion on the extension of the liability insurance system to other professions, which Mr Wathelet proposes, but the present bill does not cover the other professions in the construction sector. Other draft laws or legislative proposals will have to or may have to address this. Mrs. Minister, I regret once again, like Mr. Wathelet, that a KB still has to regulate the modalities, the main work of the draft law. I would like to expressly ask you not to wait too long with this. It has become customary for us to receive draft laws from the government and have to deal with them quickly, but then have to wait months for their fulfillment through royal decrees. The draft is important for the government. So I would like to say to the Government that the fulfillment of the Royal Decree is equally important. Work on it so that the bill can be applied to the sector.

Our group is satisfied with the draft law and with the corrections made. We will approve the bill.

Mr. Speaker, Mrs. Minister, colleagues, if one thing has become clear during the discussion of this draft, it is that this new arrangement is indeed not a day late.

A study by the Research Centre for Insurance revealed that only in Italy and in our country the architects cannot rely on the limited liability associated with the activity and company. Moreover, in case of damage, the architect is more often convicted because in the construction sector he has the only deontological obligation to insure his civil liability. In this way, the guarantee of the building owner now appears to be based more on the insurance of the architect than on his presumed solvency. The fundamental problem is that the architect, if already insured, is poorly insured. The closed policy covers amounts not sufficiently high to adequately cover potential damage.

Therefore, it is not necessary to argue for a long time that the three representatives of the Order of Architects during the hearings held promised their support for this design. In addition, the historical context that the national chairman of the Order of Architects, Mr. Leyssens, outlined around the legislation relating to architects, was clarified. The outdated legislation, which came into force in 1939, knew the problem of the personal responsibility of the architect, a personal responsibility that, by the way, did not apply to the other intervenants in the construction events. This inequality to the detriment of the architects is now being eliminated, which our group also fully welcomes and supports. It also provides better protection for consumers, who are now more likely to receive full compensation in the event of damage.

Despite these positive elements, I would like to address, on the one hand, the concerns expressed by the representatives of the Order of Architects, in particular the extension of the mandatory liability insurance, and, on the other hand, the ideological objections that our party has regarding the non-division of the National Order of Architects.

During the hearing, it was clear that architects are the requesting party for an extension of the mandatory liability insurance to all actors involved in the construction event. According to the interest associations of the architects, there has been sufficient jurisprudence in which the architect actually recurs for errors committed by other building actors, such as the contractors, because the architect is the only one who can still be legally recourse if, for example, it turns out that the contractor has gone bankrupt. In order to stop the injury to the architects in this case, it is appropriate to extend the mandatory liability insurance to the other occupational groups in construction. Therefore, from the government side — the Minister of Economy and colleagues Wathelet and Mrs Pieters have already cited this — it will come to work as soon as possible on this extension of the mandatory liability insurance, because it will also benefit both the construction sector and the consumer. To conclude, Mr. Speaker, Mrs. Minister, I would like to support the voting behavior of our group. We have abstained in the committee and will do so here in the plenary session. The outdated legislation on the protection and organization of the profession of architect dates back to 1963. It is a fact that reality forces us to deal rationally with a changed constellation in the construction sector. It is therefore also why we can fully agree with this draft law if better protection is offered to the architect and in one breath also to the consumers. I explained the reasons later.

It is therefore all the more surprising for us that this sense of reality falls away from all parties and that the state-scientific classification of our country and the justified request of the Dutch-speaking Order of Architects is completely overlooked for a division of the national order, just as it has happened with the Order of Lawyers, by the way. The successive state reforms have taught that differences between Flanders and Wallonia were not merely imagined. On a political level, that translates into intense discussions about policy choices in social security, about the organization of justice, the approach to crime, the right to vote for foreigners and so on, I can continue for a while. Even in seemingly politically neutral areas of life, there are differences that cannot be reduced only to the classical language issues.

Thus, it must be established that there are also large differences within the world of architects in organization and decision-making in the Dutch-speaking and French-speaking provinces. The Flemish Belang, among other things by my colleague Mrs. Govaerts, has asked you several times in the past how far it was with the division of the national order. You have always answered — and you have also done this during the discussion of this draft in committee — that you are effectively planning to split the national order, but you apparently did not have the political courage to realize this through this draft law. After all, let us not forget, colleagues, that of the 16 articles that the design counts, half specifically deals with the National Order of Architects.

I have repeatedly pointed out in the committee — and I remain in my opinion, colleague Tant — that it was indeed my right and even my duty to ask the three representatives of the Order of Architects who were invited during the hearings their opinions here, and that these representatives should have been equally entitled to have been able to ventilate their answer and their vision in the committee. You did not allow this latter, which still happens to me a little strange. My questions were, after all, correct, up-to-date and, by the way, fit perfectly in the split scenario that, Mrs. the Minister, has already been prepared by the Order of Architects itself and this since 30 September 2005.

Moreover, colleague Tant, you have stated that the request of my group chairman to add our proposal for a resolution on the splitting of the National Order of Architects to the agenda was not opportune. I might still be able to argue that a resolution is difficult to link to a previously technical bill, but for the same money it would have been an excellent signal to put the government on its responsibility and not to let them no longer tame with that division.

Mr. Speaker, Mrs. Minister, colleagues, in summary, the Flemish Belang stands behind the design when it comes to the articles that offer the architect a greater legal protection and the consumer a greater security, but we will refrain from the articles that the National Order of Architects persists by assigning them a specific role. We believe that there is still a unique opportunity to regulate the division of the National Order of Architects through that design already.

Mrs. Minister, on our part, we will not fail to repeatedly point out your promise to finally make the division of the National Order of Architects a matter.

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, etc.

I think the bill is a very good step in the right direction. I thank the government for the initiative and also the 5 Dutch-speaking provincial councils of the National Order of Architects, who have evaluated the bill and through their contribution also corrected on important points.

There has already been reference to the hearings with Mr. Jos Leyssens, Bart Verstraete and Jan Van Breedam. Of course, I also refer to the amendments already cited by the rapporteur, which were submitted during the committee discussions, both by the majority and the opposition. With majority and opposition, we reached a unanimous conclusion.

Architects now have the possibility of becoming a legal entity and can therefore no longer be personally liable for the defects in a building. In addition, the new law obliges architects to take an adequate insurance that adequately covers the risk. This is also the good news for consumers.

But as the two previous speakers have already cited, I would like to point out the fact that that technical law must not lose its purpose and therefore must be framed in a broader context. In order to protect the building owner from the insolvency of some actors in the construction industry, a sentence in solidum of contractor and architect is often applied too quickly and too easily, since the architect is obliged to insure himself in accordance with his deontology. However, we do not solve this problem by converting the deontological insurance obligation into a legal insurance obligation. For the insurer of the architect, the result remains the same, whether his insured has a legal or deontological insurance obligation. Indeed, in both cases, the risk remains that his client, as a result of a conviction, will only have to bear the damage if the other parties are insolvent or insufficiently insured.

After all, it is not the responsibility in itself that means an injustice for the architect, but the way it is often misused. The introduction of the statutory insurance obligation for the architect only makes sense if such obligation is also introduced simultaneously for all other actors. I refer to the Spinetta law in France.

The introduction of a statutory insurance obligation for the architect is now the starting point for improving the architect’s status, but should rather be the closing point of a global reform that introduces an insurance obligation for all partners involved in the construction process. After all, the architect remains the only building partner who is obliged to insure his responsibility. I refer to the consumer organization Test-Akkup, which already last year pointed out the ten-year professional liability and broke a lance for this.

Mrs. Minister, I hope that you share this concern and take the legal necessity to heart.

I have two minor remarks, which I would like to share in the margin.

Mrs. Peters has already pointed out this. The situation on the insurance technical level remains uncertain for the architect, as long as the modalities of the statutory insurance obligation are not determined by the King in implementing decisions. I can hope that the implementation decisions will be ready soon. The amendment that states that the law must not enter into force before the entry into force of the KB was not for nothing.

Finally, the previous speaker spoke of abstentions in the vote on certain articles of the draft due to the division of the Order of Architects. With this attitude they serve no interest. They do not serve the interests of the architects. If you had attended the hearings, you would know that the architects at no time asked the link of the present bill to the division of the Order of Architects. It was stressed that the ongoing reforms within the Order of Architects, in this case the division by language community and a contemporary working structure, are important and that this work should be continued. The National Council of the Order of Architects is now working on a dismantling of the current structure to come to autonomous orders per language region.

Mr T'Sijen, you say that the National Council is working on a split scenario. You did not listen well. For me is the newsletter Architext, which contains a report from the meeting of the National Council of 30 September 2005, where an elaborate split scenario is already on the table. My question to the minister has always been why she continued with this and why the division could not be carried out first. If the order is divided, at least eight articles of the draft law, on which we are to vote today, will be changed again.

I can only point out what was said during the hearing, among others by Mr Leyssens, who did not ask for the link to the reform plan at all. I also read Architext. Moreover, possible operating models and procedures for consultation are being considered in order to ensure that any initiative to amend existing regulations or to create new regulations, as well as advice to the government and the organisations of other professions, relating to the creation of built environment, can optimally maintain the uniformity of regulations. This was also pointed out in the reform plan presented by the Order of Architects. I think it is important that it can be treated separately. I would also like to emphasize that the division of that order must be able to continue and must be able to be carried out.

I will decide, Mrs. Minister. The law is welcomed favorably by the architects. I think those who will not vote in the future will not serve the architects. The next priority consists in also obliging other construction operators to enter into such insurance, in their own interest and in the interest of the builder-consumer.