Proposition 52K0930

Projet de loi modifiant le Code judiciaire en ce qui concerne la répétibilité des honoraires et des frais d'avocat.

General information ¶

Authors

CD&V Katrien Schryvers, Raf Terwingen

Submission date

March 5, 2008

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

lawyer civil procedure legal expenses pay judicial proceedings access to the courts

Voting ¶

Voted to adopt

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

Abstained from voting

FN VB

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Discussion ¶

Nov. 27, 2008 | Plenary session (Chamber of representatives)

Full source

I have very little to say. I would therefore like to refer to my written report although Ms. Nyssens and Mr. Landuyt, especially since our return from Canada, would ⁇ have preferred a more vivid relationship.

Thank you for your remarkable report.

Despite the short report of the colleague, I think that this proposed legislative amendment is still too important, socially relevant to just let pass.

As a new member of Parliament, I also allow myself to go back in time for a while. I remind you of the previous legislature and the discussions that took place at that time. Certainly some colleagues will remember this. There was the problem surrounding the question regarding the recourseability of honorary wages of lawyers. Is this damages or not compensable and can the parties or not claim these damages in court?

In these, there were then important judgments of the Court of Cassation and the Constitutional Court. There was, among other things, the judgment of 2 September 2004 in which it was established that honorary honours of lawyers could effectively form part of this compensable damage.

Some of our colleagues will remember this period. This judgment resulted in a conviction in which an effective participation in the costs of the lawyers was requested from the opposing party, resulting in very diverse case-law and legal uncertainty.

It is thus that this Chamber correctly approved the law of 21 April 2004 providing an answer to this problem. The principle of the recourability of honorary wages was anchored in the Judicial Code. This judicial remuneration was also given a different definition, namely a flat-rate payment in the costs and honorary salaries of the lawyer of the party in the dispute.

It also provided that the judge has a very broad discretion. Furthermore, the law prescribed a number of precise criteria in accordance with which the judge could conduct this judicial remuneration in good order and yet could continue to ensure and pay attention to equal access to justice for all parties, even the most weak in this society.

Dear colleagues, I do not need to remind you of the numerous problems that arise in practice with regard to the application of this article, important legal issues and unintended consequences. In this regard, I refer to the countless questions asked to the Minister of Justice on this subject. I list some of them.

One question concerned the determination that a party who appears before the court does not challenge the claim and only asks for payments, possibly being condemned to a higher judicial fee than a party who does not appear and leaves a default.

Another question concerned the establishment that a party who opposes only because it wishes to receive payments and is possibly granted, receives payments and is entitled to a judicial compensation in relation to the person who must receive the payment.

The question is whether the judicial fee and this arrangement are applicable in administrative law.

The Minister has engaged in the committee to discuss all these issues with the various actors. Most of these problems do not concern the application of Article 1022 of the Judicial Code, but the application of the Royal Decree.

Therefore, the Minister has undertaken to evaluate this law and the Royal Decree, taking into account the expected decisions of the Constitutional Court and the Court of Cassation, in order thus to reach a coherent and consistent adjustment.

The article and the legislative amendment presented today deserve our attention because this amendment provides for a modification of the third paragraph of Article 1022. This proposal has the merit of addressing the problem of a party who initially did not request a reduction in court fees while he or she is entitled to it, because he or she forgot to ask it or did not know that he or she could ask for it.

This article and this adjustment provide for a possibility for the judge to actively question that party and thus collect information so that it could nevertheless reach a judgment and the reduction of the judicial fee.

However, it ⁇ ins the procedural autonomy of the parties and the rights of defence. A party will have to ask this in court and the judge will not be able to statute this ultra petita.

That is also why we have supported the amended proposal in the committee and we will also approve it as a group later.

Mr. Speaker, Mrs. Minister, Mr. Minister, the proposal that is debated today renews the debate on the repeatability of lawyer fees and fees. Indeed, the practice has revealed several inaccuracies and gaps in the law of 21 April 2007 on repeatability. A working group has been charged with the overall assessment of this law.

In this context, we agree with the conclusion of this working group that it is necessary to wait for the judgments of the Constitutional Court, which has repeatedly been referred to in this matter, to begin a work of more comprehensive reform of the law.

However, the provision that is being discussed today concerns a specific point that has not been discussed in depth during the review of the law during the previous legislature and which can therefore already be put to vote. This provision gives the judge the power to interpell the parties so that they take a position on the possibility for them to deviate from the basic amount of the procedural compensation. Furthermore, the attribution to the judge of this right of interception is fully consistent with the principles of contradictory debate and with the rights of defence.

Mr. Minister, I would like, however, to return to one of the points that were discussed during the discussion in the committee, namely the fact that the law organizes the repeatability of only lawyer fees and fees at the expense of those of the trade union delegate. Indeed, the justiciable, who chooses in matters where it is possible to be assisted by his trade union delegate, cannot currently benefit from repeatability. However, the procedural compensation covers not only the material acts accomplished in the course of this procedure by the lawyer of the party that gained the cause, but also the intellectual services rendered by that lawyer.

Therefore, it is not justified to exclude intellectual benefits made by the trade union delegate when he represents a worker before the labour courts and which are, in any way, analogous to those made by the lawyer.

This discussion touches on the fundamental principles of our legal order, the principle of effective access to the judge and equality of weapons, but also on the freedom of association and the freedom of association. Freedoms entail the right for trade union organisations to have members and to be able to defend their interests. Depriving the trade union delegate of access to repeatability has the effect of inciting workers to resort to the services of a lawyer rather than those of a trade union delegate hoping thus to benefit, in the event of success of his cause, of the mechanism of repeatability.

In addition, this is capable of inciting employers to support a legal action against a worker assisted by a trade union delegate, who are not at risk of being condemned to pay the worker a procedural compensation.

In this context and in its current state, the repeatability law could have insidious effects and deprive trade unions of a substantial share of their members, forcing them to reduce, or even eliminate, their legal assistance services to workers, parties to the dispute before a court.

The protection of workers will thus lose in wealth and diversity. It is therefore imperative to restore the balance between the parties to a procedure, whether they are represented by a lawyer or a trade union delegate, so that they can both benefit from repeatability.

In the discussion on this point in the committee, your representative committed to submitting this discrimination to the discussion of the Working Group responsible for the overall assessment of the repeatability law.

Mr. Minister, so that my group can vote with confidence on the bill that is submitted to us today, can you confirm me that this issue will indeed be – or is already – on the table of negotiations regarding the overall revision of the law?

I confirm what was agreed in the discussion.

We have installed a group of specialists on this quite complex matter and this recent legislation. We are waiting for the decisions of the Constitutional Court. I am committed to studying the question you are asking in future discussions. I do not hide that the problem is complex but the will is there to solve it and the commitment is taken.

Mr. Minister, I thank you for your response.

The various decisions of the Constitutional Court, in particular the one on this issue, are expected for December 18. He will ⁇ be able to illuminate our work on the draft comprehensive reform of the repeatability law.

In view of your response and in this context, my group will vote in favour of the text as proposed today.

On this point, I would like to ask the Minister an additional question.

That may.

Thank you, Mr. President, for allowing me to ask this question. If the minister wants to put his blackberry aside?

Mr. Minister, you say that it is a complex problem to state that for the efforts of a representative of the trade union, which are the same as the efforts of an attorney at the court, a fee should also be paid by the losing party. I have two reactions to that.

I don’t think it’s a complex problem, I think it’s a big problem. At the Labour Court, especially known for its wide accessibility, the trade unions, through a form of collective effort, ensure that people are defended cheaper in their disputes, usually against companies that are slightly stronger. The big problem now is that the remuneration of the lawyers of these companies in the event that the person concerned fails to obtain his right is very high. Despite the fact that they are proceedings before the labour court, they may be large amounts that are not included in the collective insurance. In the best case, they are charged to the trade union if one can include this and in the worst case they are charged to the person concerned.

One can solve that by at least in this situation, equating the situation for a lawyer and a representative of the trade union who actually does the same job at that time. So I do not understand why you opposed it. Especially given your social background, I do not understand this. You talked about the working group of specialists. I know the opinions and texts of a certain Mr. Foet very well and they don’t give me much hope. Since you are now committing to address it in a working group, my question is when something will come out of that working group.

Mr. Landuyt, I must honestly say that I do not understand something. This is a recent law that was passed at the time you could be very actively involved in the drafting of that legislation. Choices were made then.

This is a legislation that has a lot of consequences. I immediately asked to check the effects on the ground with a number of experts. I am dealing with it. There are many cases pending before the Constitutional Court. The statements on this subject are crucial for the direction we must take. I committed myself to studying the question as it was asked.

When the legal framework was created, this question was apparently not addressed. It has in no way led to certain choices that are now being proposed. In any case, I have committed myself to studying this problem. This is a parliamentary initiative in which it is very urgent to incorporate an element of fairness into the discussion. If Parliament wants the debate to be postponed again in order to conduct the broader and more fundamental debate, that is not a problem for me.

However, I would prefer to approve this bill now. This is urgent and fair. The other discussions, as agreed, will be taken into the global evaluation. In terms of timing, this evaluation will depend on a number of judgments of the Constitutional Court, which are essential to make the evaluation proper.

I think your speech is becoming increasingly widespread. My question was very specific: when will an arrangement be made on this subject?

The Minister responded.

I have understood that he gives the infinity as the answer. I understand this from his other background.

It is also mine.

I want everyone with a social background to admit color here. Referring to the fact that we have developed such a system, I would like to emphasize that, in order to press the costs for the people, we have linked one and another to the system of judicial fees. It is the people sitting in your working group who have expanded all possible interpretations of these techniques in the jurisprudence and the jurisprudence because they are used inappropriately to generate profits for a professional group that is affectionate to me at times, but not in this matter.

I repeat the experts from your working group will advocate the exact opposite, just as the lobby of the lawyer’s profession has advocated the opposite. Simply equalizing anyone who defends someone is the only question behind my colleague Déom’s amendment. Since I have a little less confidence in you, I will submit this amendment again.

The debate has been ongoing for a while.

As regards the remuneration of the members of the trade union organisations who advocate for stakeholders in labour matters, among other things, I would like to say the following. At that time, it was already obtained that the lawyer’s advocacy monopoly was broken. Until then, but now asking that there would also be a compensation, I find it unfair. Why Why ? After all, who would benefit from this compensation? Would it benefit the person who allows himself to be defended by someone from the trade union organization? I do not think. I think that compensation would just benefit the trade unions.

When one speaks of the unfair profits made by certain organizations or professions, I would also refer to the trade unions. We have recently exposed certain abuses in trade unions, such as the misuse of funds, the unlawful or improper use or ownership of funds by trade unions. I think that the debate on this point can calmly end and that those who think they should represent the trade unions should still show some shame. The trade unions want to pick up a grain here again, but that will not continue, if it is at the Flemish Importance. If colleague Landuyt submits the amendment again, then we will try to counter it with all possible means and of course vote against it.

I would like to speak in support of the amendment. by Landuyt.

Not long ago, I met a legal officer of a small regional trade union who explained to me that, as part of the preparation of the trade union elections, they had decided, after mature reflection, to bring ten cases to court, knowing that if they lose, they should pay. They won eight of the ten cases. They had to pay for the two lost deals and they did not receive one euro for the eight won deals.

The fact that repeatability only works in one direction seriously jeopardizes the possibility for trade unions to be brought to justice and to enforce the rights of their members. Indeed, the imbalance introduced into the system no longer allows them to fight with equal weapons with the opposing party in the courts.

In my opinion, justice is based on this balance, which has clearly been broken. I support the amendment submitted by Mr. by Landuyt. I hope we can quickly move forward on this issue. The reassuring statements of the Minister aiming to say that a working group of specialists has been created, that the latter may be going to advance things and look at the issue after the various decisions that will be taken by the Court, do not constitute a clear commitment in this regard.

Mr. Speaker, I think I should add in the debate, however, that the proceedings before the Labour Court are subject to a specific system in terms of judicial costs. After all, for all proceedings related to health insurance, pension insurance, child allowance and the like, in short for all social proceedings, the court costs are always borne by the institution, even if the citizen is wronged.

Therefore, if a person initiates a dispute before the labour court against the pension fund, against the RVA, against the health insurance, against the health fund, the institution is always condemned to pay the court costs, including the costs of expertise, regardless of whether one gets right or wrong from the court. Only in the case of undue and reckless proceedings the citizen risks having to pay the court costs. As far as the social aspect is concerned, I think there are already exceptions.

The rest should be included in a broader debate, as will be discussed in the committee.

Mr. Speaker, dear colleagues, all the interventions we have heard show how much the problem raised by Mrs. Deom and Mr. Deom is. Landuyt is complex. Moreover, it comes into an equally complex whole, on which the working group of which the Minister has spoken is based.

We wanted in the committee, and we have repeated it repeatedly, that this working group could work until the time when it makes its conclusions and when we can know its report and discuss it, and also wait for the follow-up and the pronouncement of the decisions of the Constitutional Court, seized of problems in this matter, this law having been the subject of many appeals.

It seemed useful to me to recall that it was the wisest position that would allow us not to engage on a dark ground since we do not have all the elements that allow us to debate and conclude today.

The law of 21 April 2007 amending Article 1022 of the Judicial Code was intended to have the winning party in a litigation reimburse at least part or all of the lawyer’s costs by the losing party. From the first moment of application, a number of problems have occurred.

There were dozens, hundreds. To those who have been to Canada, I would say that there were more than 380. That means: a lot. By the way, we have also been able to derive it from the discussion of the latter. CD&V therefore took the initiative to clarify the new regulation in terms of the reduction of the compensation, as provided in the Royal Decree of 26 October 2007. The wording of Article 1022 of the Judicial Code with difficulties of interpretation causes an unfair effect in the application and detrimentally affects citizens who defend their case themselves.

Indeed, who of the citizens knows that a reduction of the basic amount of the judicial fee can be requested? That is not a small problem, if one knows that in the absence of an explicit question the judge systematically imposes the basic amount.

The difference is big. I will give an example. The basic amount of the judicial fee in a dispute before the peace judge that is not valuable in cash is 1,200 euros. The minimum amount is 75 euros, more than 15 times less.

The judiciary also quickly recognized and signaled the problem. For reasons of justice, many judges therefore suggested to the citizens the possibility of reduction. But the question remained whether they did not do so beyond what was permitted to them. Many judges therefore feel uncomfortable and therefore often do not. Consequently, citizens do not receive a reduction in court fees because they simply do not know their rights and do not ask for them.

The citizen cannot be expected to be consistently aware of the fact that he may request a reduction in the judicial fee. This proposal, as amended, removes that injustice without, however, affecting the foundations of the civil proceedings.

On the one hand, the judge is granted the right of initiation, so that it can point out to the parties their right to request a derogation from the basic amount of the RPV, which also fits in the evolution of our legal system from an active to a proactive judge. In this way, the legislative amendment prevents people who come to the court personally from always paying the full pot, simply because they are not sufficiently informed.

On the other hand, it does not go to the extent that the court can intervene on its own and without the parties being able to submit their comments, so that the parties remain in control of the proceedings.

CD&V hopes that the judges will also make effective use of the opportunity given to them now, so that any uncertainty and injustice will be removed. After all, it is unfair that someone who goes to court personally must pay more than someone who has a lawyer or who lets go.

The objective of a fair justice was therefore for CD&V the reason for the proposal. We know that there are many other problems. The Minister has undertaken to continue to develop opinions on this subject in a working group following the decisions of the Constitutional Court and then return to Parliament. By the way, most of these problems are caused by the KB and the Minister himself will make some adjustments when the opinions are known and when the judgments of the Constitutional Court are there.

This was also the conclusion in the committee, Mr. Landuyt. However, I would like to point out clearly that, as the Minister has just stated, with this legislative amendment we eliminate a large injustice. The rest of the worse legislation of last year will need to be adjusted later. The amendment was therefore withdrawn in the committee. You did not submit it as a bill, although you submitted other proposals in connection with the relevant article. You did not submit it as a bill, you did not submit it as an amendment and you now suddenly come across it.

We hope that the various problems that still arise will be discussed later in the working group. However, we expect that in the meantime the injustice is already being eliminated.

Mr. Speaker, first of all, I would like to thank Mrs. Marghem for her comprehensive written report and for the atmosphere she puts in commission of Justice and the links she creates between the Commissioners in order to reach a fruitful work.

As for the bill, the law on the repeatability of fees, we voted for it, in any case at the CDH! It should be noted that Belgium was one of the few European countries where there was no repeatable system of fees. So it was time to create the instrument and it is actually time to evaluate it!

I agree, the working group created with the Minister of Justice must quickly come to conclusions in order to be able to evaluate this law which, ⁇ , is not always in the advantage of one party. It is to see! The question raised by Mr. Landuyt and others will have to be considered within this working group.

The advantage of today’s bill is important, since the bill gives magistrates, judges, the power to appeal to one of the parties in order to draw the attention of the weaker party to eventually the amount of fees it will have to pay. This is a first step towards a more active power of the judge. We have seen that in other countries, in Canada for example, the judge has a manifest power to advance the affairs but also to protect the weakest party in the trial. By respecting the dispositive principle that the parties are masters of the trial but, giving the judge the power to interpell them, the project goes in the right direction!

I propose, of course, that the question of the representation of the trade unions and how to raise the problem in the context of the repeatability of fees be in any case an element among the multiple elements to be analyzed in very short term to see how to evaluate this law on the repeatability of fees, while knowing that the trade union representative obviously does not have the same function, not the same role and not the same status as the lawyer.

The CDH will vote without a state of mind this bill that goes ahead!

Mr. Landuyt, would you like to take the floor for your amendment, since you have already been given the opportunity several times?

Mr. Speaker, you give the impression that you do not like me to say something.

If I can make your day good by saying that I like you, then I want to say that.

Now I know that it is not common. You say that just because I ask.

Knowing what someone means and does not mean is a very difficult thing.

I would like to thank Mrs. Marghem and all Commissioners for the atmosphere. I would also like to express my disappointment over the fact that one never or almost never follows my position. That is a general observation and immediately also proof that the current majority is not a good majority.

Second, this bill is a step forward. I know very well what we have made. This law, which we already provide social assistance, came into being after the cassation court forced us to intervene as a legislator in the case of reimbursement of lawyer fees in case someone loses a trial.

One may find that fair at first sight; at second sight one can see that there are associal aspects associated with it. There are players at the court that appear multiple times, who can make better deals, who can also choose more expensive lawyers. Simply stating that the losing party must pay the lawyer’s fees was not a good rule.

The second attempt made in the past was to see if one could regulate the rates of the lawyer’s profession. This has not succeeded, because some did not want it. Even I did not want this anymore after seeing the proposed rates, because then one could become rich much faster as a lawyer in the province; the Brussels rates are not the same as those in the rest of the country.

The third method was to adjust the judicial fee slightly to the reality and thus set a kind of maximum compensation for the defence costs. The effect on the ground, and therefore the need for more than what is happening today, is that one creatively seeks all possibilities to drive those rates up. In the jurisprudence and the jurisprudence, it is aimed at making it a profitable system for the legal profession that has nothing to do with a fair distribution.

Therefore, I agree that we now expressly allow the judge to intervene in this discussion and provoke that one or another party requests that he lower that court fee, that he lower that fee to the legal minimum if possible.

I am in favor of what we approve today. I only regret that one needs a working group of learned people to take a few other good measures.

I know that Minister Vandeurzen is slowly becoming “Minister Vanduren”. I have no confidence that that working group will come with any result for the day. You don’t have to believe me today, but remember it: next year there will be no change in the unfair situations that exist today on the ground. I deeply regret that some comrades or other members of this Parliament do not use their numbers to ensure that those defended by a trade union representative are treated equally as the others. I can only regret this, again, and hence my amendment.