Proposition 52K1692

Projet de loi modifiant le Code judiciaire concernant la contiunité des entreprises.

General information ¶

Submitted by

The Senate

Submission date

Dec. 18, 2008

Official page

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Status

Adopted

Requirement

Simple

Subjects

composition civil procedure commercial court bankruptcy financial solvency firm governed by commercial law appeal

Voting ¶

Voted to adopt

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

Voted to reject

Groen Ecolo

Abstained from voting

Vooruit FN VB

Party dissidents ¶

• Hagen Goyvaerts (VB) voted to adopt.
• Bart Laeremans (VB) voted to adopt.

Contact form ¶

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Discussion ¶

Jan. 15, 2009 | Plenary session (Chamber of representatives)

Full source

I am referring to the written report.

Nov. 6, 2008 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Prime Minister, dear colleagues, the report I am going to present to you has required several months of work for the members of the Committee on Commercial and Economic Law. This proposal, jointly submitted by our colleagues Crucke and Bacquelaine, is based on the work carried out by a working group set up in the previous legislature by the then Minister of Justice, Ms. Onkelinx, who wanted a revision of the 1997 Concordat Act.

Although certain objectives of this law remain valid, it must be noted that certain articles had to be adapted so that it was possible to continue the sustainable development of enterprises and their sanitation without disrupting the normal mechanisms of the market in the context of judicial decisions.

As our colleague Crucke reminded on this occasion, it is still striking to see that in 2006, for example, 7,600 bankruptcies had been declared in Belgium for only 91 concordates. For this reason, our two colleagues submitted the text examined by the committee. During the debates, many experts were heard to give differentiated, objective and informed opinion to members on the effects of the 1997 bankruptcy legislation and on the proposal of our colleagues Crucke and Bacquelaine.

Among the experts, I would like to mention Mr. Verougstraete, Chairman of the Court of Cassation, curator Alain Zenner, Chairman of the Commercial Court of Tongres, Chairman of the Commercial Court of Tongres, Chairman of the Commercial Court of Charleroi, Chief Secretary of the Commercial Court of Brussels, a whole series of curators, the general secretary administrator of the FEB, university professors, consular judges, representatives of Unizo and trade unions. We thank them for their insight into the work of the committee. I refer to the reports of the hearings, which are exhaustive.

Although the text aims at a legal revision of collective proceedings, this proposal does not question certain concepts, in particular only economic entities, the continuation of commercial investigations, the benefit of a moratorium for companies experiencing liquidity difficulties and the significantly developed process of transfer of companies.

The text proposed to you therefore promotes the amicable concordat in various ways and will ⁇ constitute a progress. It provides, in terms of procedure, three main points.

First, the negotiation of an amicable concordat under the cover of a suspension under judicial supervision. The few months of rest left by this procedure can greatly facilitate the debtor’s process.

Secondly, the judicial recovery procedure by collective agreement, close to the existing concordat procedure, but radically simplifying the procedure by dividing it into two separate periods, the suspension and the execution of the plan.

The last procedure organizes the transfer of the company under the supervision of the judiciary.

Maintenance of employment is one of the determining factors in the transfer procedure and will be widely taken into account.

During the general discussion, the government, and in particular the Minister of Justice, submitted amendment No. 1, which aimed to replace the entire bill of our colleagues Crucke and Bacquelaine. This amendment, which was submitted by the Minister’s representative, is the conclusion of the work carried out by a group of experts whose main task was to resolve certain problems raised in this proposal, but also to adapt it following the opinion given by the State Council on the preliminary draft submitted in the previous legislature by Ms. Onkelinx.

The amendment that is the subject of the current text has taken into account the observations made by the various experts but also by the State Council, recent jurisprudence and the professionals of the judiciary.

The main changes include increased flexibility necessary for the opening of judicial reorganization proceedings, the introduction of additional safeguards to avoid any misuse of the procedure in order to open judicial reorganization, the increased possibility of switching from one instrument to another, namely judicial reorganization by amicable agreement, by collective agreement and by transfer under judicial control.

In the questions raised by the members of the Committee, Mr. Crucke, for the MR group, wanted to emphasize once again the importance of judicial reorganization for companies, both for investors and entrepreneurs and for workers. According to him, the various problems highlighted by the hearings have, thanks to the expert group, been able to find solutions.

The MR Group therefore fully supports Amendment No. 1 resulting from discussions within the Expert Group and stated that it was positive that this amendment brings more flexibility because, thanks to the planned adjustments, the procedure will be easier to apply in practice. by Mr. Crucke also emphasized the importance of preserving the balance of rights between the different parties involved.

Colleague De Potter, for the CD&V group, also welcomed the deposit of Amendment No. 1, which expresses the willingness of the social partners to conclude an agreement enabling the various stakeholders to reconcile their interests. He emphasized the importance of this concordate reform in view of the very mixed success of the 1997 law. According to him, the key points of the project are: the flexibility, the modification of the term "concordat" by the term "reorganisation", which allows to avoid a often negative connotation, the different possibilities of which a company will have before and during the procedure, the flexibility offered to the reseller, but also the maintenance of employees' rights that arise from compromises concluded between social partners. by Mr. De Potter says he is convinced that this new regulation is a real breakthrough and that it can be useful for companies in difficulty while avoiding too acute social problems. The CD&V Group will therefore support Amendment No. 1

by Mr. Bonte, who spoke for the sp.a+Vl.Pro group, insisted on the fact that, in his view, companies in difficulty disappear too quickly and that it is therefore important to support any legislative text aimed at addressing this problem. He insisted on the lack of guarantees in order to reach a real balance between the interests of employers and employees. He noted that a certain arbitrary still remains in the head of the re-entryer regarding the choice of employees to keep. This lack of clarity could, according to him, lead employees to address the courts. by Mr. Bonte also reiterated the possibility that is given to the worker and the employer to modify individual working conditions and the fact that this can completely undermine a modified collective agreement following the transfer of enterprise, which could lead to internal competition between workers. for Mr. It is hard to imagine that trade unions can give their consent to such a regulation. However, he expressed satisfaction that Article 61 referred to in Amendment No. 1 is only a transitional measure pending a collective agreement within the National Labour Council, even though he is concerned that when the transitional measure becomes law, it will probably no longer be a matter of concluding a collective agreement, the measure being, in his opinion, too advantageous for employers.

As regards the rights of the latter, Mr. Bonte also believes that they are better formulated than those of workers. He finally believes that these rights are fixed while in his view, those of employees may undergo changes and it is not at all certain that the FEB would be willing to reconsider the regulation.

Finally, he insists that the amendment be submitted for opinion to the National Labour Council and therefore considers that adjustments to the text are necessary.

Ms. Deom, for the Socialist Group, also supports Amendment No. 1, which provides more flexibility for companies in difficulty in order to continue their activities. It insists on the acceptable compromise, both for employees and workers, while waiting for a collective agreement, which is represented by the amendment.

Ms. Deom believes that this collective agreement will be able to refine the rights of workers in the future and that therefore it will be possible to derogate from the legal transitional provisions. She insists that this amendment takes into account the demands of the Socialist Group, in particular as regards a proportionate recovery of staff representatives in the event of a recovery.

It welcomes the fact that the cedent or the judicial representative is required to inform the candidate cedent in writing of all obligations relating to the workers concerned by the transfer, as well as of all existing actions that these workers would have brought against the employer, and that it notify the workers individually of the obligations existing towards them.

Ms. Deom asserts that the legal certainty of the parties concerned is guaranteed by the possibility of requesting, by application to the labour court, the projected transfer approval.

For the Ecolo-Groen!, Mr Gerkens asks for clarification as to the exact date on which the agreement between the social partners was concluded and on what basis it was. It considers that certain provisions lack clarity and gives as examples Articles 49 and 57. Ms Gerkens supports the proposal of Mr. To submit again the text of amendment No. 1 for opinion to the National Labour Council, in which the social partners are represented.

by Mr. Logghe, for the Vlaams Belang, praises the bill and amendment No. 1, which can make a positive contribution to many companies in difficulty. For him, the emphasis is placed on the continuity and profitability of the company and the extension of certain deadlines seems to him to be an advantage. for Mr. Logghe, some issues that posed problems have been resolved, as the Minister of Justice had previously announced, but others remain unresolved.

In particular, it cites the fact that it would be important to better settle the issue of creditors’ contribution, that it would be interesting to develop a lighter and less costly judicial restructuring procedure for natural persons and SMEs, and finally, that a mechanism would need to be developed that would compel first-line creditors to comply with a certain deadline. He wants to know the Minister’s intentions on these different issues. He considers that he has no answer in Amendment No. 1.

Smeyers, who was then chairman of the committee, notes that the first amendment offers a wide range of opportunities for companies in difficulty and that this flexibility will allow them to continue their activities. She asks the minister about Article 8, a provision already included in the previous legislation on the judicial concordat and for which no royal decree had yet been taken. It therefore asks whether it would be possible to include the exchange of data in the text of the law itself. It also asks whether the Minister is willing to cooperate with the Regions in the field of preventive management of enterprises.

The Minister’s Representative first responds by reminding that each group can propose draft amendments to the Strategic Cell. It appears that the Socialist group submitted one and the MR group four. In response to questions from members, he indicates to Mr. Crucke said that the expert group present in the working group is, to a large extent, composed in the same way as the working group created by Ms. Onkelinx and that the chairman is Mr. Onkelinx. Ivan Verougstraete, President of the Court of Cassation.

In response to Mr. Bonte, the representative of Minister Vandeurzen, said that for three years no agreement could be reached without consensus between the social partners. The new government has made progress in this regard. It is also in the sense of mr. De Potter and insists on the fact that in his eyes the current law on the judicial concordate does not work in an optimal way. He recalls that, even in bankruptcy, a company can still appeal to the judicial reorganization procedure and points to the huge cost of bankruptcy. He adds that the recruiter has, in this case, all freedom in the recovery of staff.

In response to Ms. Deom, the representative of the Minister indicates that the National Labour Council met for the last time on 19 June 2008, and that discussions on the collective agreement are continuing.

To Mrs Gerkens’ questions, the Minister’s Representative replies that the social partners have made their observations on the latest version of Amendment No. 1, which takes into account the opinion of the National Labour Council of 21 November 2006.

by Mr. Logghe, it is answered that the working group has looked at the problem of creditors’ competition, but that it has considered that it is not necessary to change this point. As for the request for a separate procedure for natural persons and SMEs, a separate procedure would make the judicial reorganization procedure too complex. Similarly, it is difficult to give a clear definition of a small or medium-sized enterprise.

Following is the discussion of articles. Eventually, the project will be adopted. All the amendments that replace the proposal of law of MM. Crucke and Bacquelaine, as amended, was adopted by nine votes for and three abstentions. This concludes my report on behalf of the Commission. If you allow me to do so, Mr. Speaker, I will talk briefly on behalf of the Socialist Group.

Mr. President, I have a problem to leave Mr. He continued his speech. I am sorry to have arrived during your report. In fact, I have submitted to the President a request to send this proposal back to the committee and so that we do not continue this discussion today. I also requested that the Minister of Employment, Ms. Milquet, be present. She’s here, that’s great!

In fact, in order to implement the provisions of the bill and to ensure the respect of workers’ rights and the possibility for workers to enforce these rights by the various judicial provisions, there is still work to be done. There is work to be done through the CNT but also, according to our information, regarding judicial provisions relating to the protection of workers. Ms. Milquet, at the Council of Ministers last May, was responsible for listing them and starting this work.

However, I have been informed today before the start of our work and these provisions are not implemented. I am convinced that we would vote on this text today without knowing exactly how this will happen, without knowing whether the social partners will be able to make all arrangements among themselves through collective agreements or whether there will be legislative provisions to be made in other sectors than those we are talking about today.

It would therefore be interesting to return to the committee, to consult the result of the work of the CNT, of those conducted under Mrs. Milquet’s foul, before returning to vote on the document. Before we proceed, I would like to make a decision on this possibility of referring to the commission. Per ⁇ we could also hear Mrs. Milquet to explain to us where the work is.

Mr. Speaker, I totally disagree with Mrs. Gerkens’s point of view, which is not new and which has already been repeatedly expressed in the committee. This is a part of the report, which has been mentioned recently.

The economic crisis that affects ⁇ and workers makes this proposal, which has taken some time, now even more urgent. This referral to the committee, for a problem posed to Ms. Gerkens, must not prevent this Parliament from voting on this bill which is more than useful and interesting.

I know the point of view of Mrs. Gerkens, and I respect it. On the contrary, I think we will do useful work by advancing and voting this bill.

Mr. Speaker, Mr. Crucke, I think no one is questioning the objectives of this bill, but a certain objective seems to me very crucial, namely the protection of workers, for example in the case of restructuring and bankruptcies.

In this regard, Article 61 of the Global Government Amendment is crucial. This is recognized by everyone. The problem is that just that article is not executable. If such a provision is not enforceable, the overall protection of workers will be compromised. I think there have been questions about this in the past. It is therefore appropriate – I address everyone who is concerned about the protection of workers in the event of bankruptcies and restructuring – that the work be transferred to the committee.

Not only we say that. If you allow me, Mr. Speaker, I would also like to refer to the letter of the National Labour Council, which states that changes are needed to the framework, just to make the protection of workers possible. He says literally: “Without the above-mentioned amendments, the Council considers it impossible to apply the new legislation on the continuity of enterprises in a legal and effective way.” I think that sufficiently indicates that there is a problem with this bill and that the work may still need to be transferred, just to guarantee the protection of workers much better.

Mr. Speaker, I think we can be relatively reassured about the timing and how the work develops within the CNT. It is true that Article 61 is already the result of a compromise between social partners.

The social partners within the CNT have already met three times – on September 24, on October 15, on Tuesday, on November 4 – and they are considering seeing again on December 1, with progress and already a possible project of collective agreement. Thus, whatever happens, we currently have a text that constitutes a compromise between the social partners, but that will only apply in the event that no collective agreement is in place in the meantime. But this collective agreement is progressing very positively.

In any case, according to Article 90, a royal decree must enable the draft law to enter into force no later than six months after its publication. According to the timing, we still have a lot of time before the completion of this collective agreement. This conclusion seems to me imminent: in my opinion, before the end of this year.

As for the provisions in preparation, we can both deposit them, if necessary, in the draft law among the non-urgent measures and also in the moments that follow. We will comply with the timing.

Knowing that the entry into force allows a certain delay, that the work of the social partners is developing favorably and that, knowing the deadlines, these negotiators are encouraged to hurry their conclusions, we can be reassured as there is also an urgent need to move forward on all the arrangements of this project.

I listen to the Minister. From my information regarding the work of the CNT, it seems that there is no progress and that there is no agreement between the partners. I know they met before yesterday but I’m not sure they advanced on the matter.

Mr. Minister, you say that measures will be taken in the law containing various provisions. I can’t see where the urgency is to adopt a text today when, in a month or a month and a half, we will adopt the provisions that are necessary for its implementation. At that point, we will have the guarantee that everything is put in place to ensure that the rights of workers are respected. From the moment we work properly, that we have a text that should not be revised, that all additional provisions are in place, let us adopt this proposal at that time!

If we adopt it today, we risk having problems, seeing changes requested by the Senate, corrections of provisions before entry into force. Eventually, this precipitation will delay us, because the proposal may make a go-back Chamber/Senate.

Do you insist on the removal to the committee? There is no unanimity. In a few minutes, I will make a count.

Mr. Speaker, in fact, today, the old so-called concordat law is still applicable, law on which many founded much hope, but which in practice has proved to be inoperative or ineffective.

In addition, I would like to say that the committee worked for many months on the draft, the proposal, and then the amendment of the government. We conducted a series of hearings.

In addition, the only amendment submitted to Article 61 was withdrawn. This article was voted as it is. It is true that a series of abstentions have been recorded, but it is still that a "contra-text" has not been voted.

Furthermore, as the Vice Prime Minister has just said, the new provision will take effect only when the King has decided, that is, within a maximum period of six months.

Finally, the collective agreement will not be the subject of a debate in this assembly, it will simply be ratified by a royal decree. Therefore, if the social partners reach an agreement before the King has decided on the entry into force of this law, which will soon be adopted by our assembly, that agreement will be sanctioned by a royal decree. I do not understand, therefore, why the effect of a law that many economic operators expect and which could avoid many socio-economic difficulties should be delayed today. These words concern both workers and companies.

Mr. Speaker, I would like to intervene briefly because there have been quite a few incidents related to the conscious Article 61 in the committee that dealt with the text. Very strange is the following. Article 61 deals with the maintenance of rights by workers in the event of acquisition. This was not sent to the Social Affairs Committee.

Well, that is a strange way of working. I asked for it, read the report. Apart from that procedure, it has been repeatedly said, Mr. Speaker, that there was a unanimous opinion of the National Labour Council on Article 61. That is not there. There has been a letter, from which Mr. De Vriendt also quoted, which indicates exactly that there is a problem.

I want to make a prediction, Mrs. Minister. You said that there are commitments because of the social partners to change Article 61 through a COA. I give you here the absolute guarantee that there will be no substitute CCO in this matter, because the employer organisations today in the National Labour Council say that they do not talk about it anymore, that the legal regulation continues.

Therefore, do not argue that anything shows a great respect for the social partners. You know that there will be no cao, with all the chaos of that. We here approve a text that will completely cross the interprofessional COAs and of which we know that there will be no substitute measure.

Therefore, Mr. Speaker, I absolutely support the question of our colleagues. Let us do it anyway. This does not have to delay the work. As for us, we want to meet tonight, tonight, tomorrow, and so on, until the finish. In any case, it seems to me logical that one keeps that conscious article against the light, together with the opinions and the documentation that we have from the National Labour Council on the subject.

Mr. Speaker, I listen to the colleagues who emphasize the urgency of the entry into force of this text. I would like to point out to them that it is not immediate in the proposed device. This gives us time to correct inaccurate provisions.

Furthermore, I do not think that through collective labour agreements, the Judicial Code can be supplemented, in particular with regard to the intervention of the labour court. The social partners, who are unable to agree within the CNT, are asked to do something that is not their responsibility.

To adopt this text with this article 61 which is inoperative, is to deprive workers of part of their rights. That is why we are asking for his withdrawal and we are ready, like Mr. It is urgent to take action in order to supplement this provision.

This text is inoperative, I repeat, and I consider that this poses a problem in labour law.

Mr. Speaker, I just want to explain why I maintain my request.

I think I have been constructive during all the discussions. I asked questions. In fact, I think that the project submitted to enable the continuity of companies is interesting. I was convinced that from the holidays, the arrangements to be taken to enable the enforcement of the law and guarantee the rights of workers in the judicial arrangements accompanying these rights would be taken. This is not the case. As my colleagues have said, obviously there is no unanimous opinion within the CNT.

I do not want to delay the work. But since in any case, the law will not apply immediately, if we have to change some conclusions or simply wait for a unanimous opinion of the CNT social partners, we could shorten the deadline.

I repeat, my purpose is not at all to delay the work but I fear that we will make a decision on something that will contain difficulties that we will later regret.

Everyone can have fears and it is well understood that this is the case for Ecolo and sp.a. It should also be taken into account that others do not share these fears and that there is no agreement on this request.

Mr. Speaker, I absolutely do not share the opinion of the people who say that we should postpone this bill today. A long preparation has been preceded. A whole sector, an entire economic world, is waiting for this proposal, especially since there is an economic crisis, which causes certain problems.

I would also like to refer to the letter of the NAR, to which Mr. Bonte refers. It clearly states that Article 61 is the compromise between employer and employee interests. Everyone knows that compromise is giving and taking. Furthermore, Article 61 is a useful legal basis for the further development of the aforementioned employee statute. This is going on at the moment. The NAR is undergoing negotiations between employers and workers to provide a solution to this issue. I know – they say to me – that a deal will be reached before the end of the year.

Furthermore, the law stipulates that the King shall publish the date of entry into force no later than six months after the publication of the law. There is definitely still time. Those who claim here that we will create chaos are missing the ball.

I give the word to Mr. De Vriendt. Then we move on to a count.

Mr. Speaker, allow me to confirm that there is a problem – even if it is only a technical problem – that threatens the protection of workers. In this regard, I would like to refer to what Mr. Rasneur says in the report of the discussions that took place within the framework of the NAR. Mr Rasneur is an employee of Minister of Labour, Joëlle Milquet. He says that there is a problem with Article 61 because the very urgent procedure, which it provides, is currently not included in the Judicial Code. That is a problem. If we let that pass here, we do careless work, which jeopardizes the protection of workers in restructuring, bankruptcy and the like. I think that such a thing cannot be the intention, not even of the majority parties, as I have heard here CD&V, CDH and PS.

Mr. Speaker, I think there is no element in which this bill should not be put to the vote today. Our group calls for this vote to continue today. We insist that this bill, which has been discussed in the committees for months, with dozens of hearings, will finally be adopted in this plenary session. Let us continue with this. Companies are asking for it.

Collega’s, er ligt een motie voor, getekend door mevrouw Gerkens, by Mr De Vriendt in door een aantal leden whens handtekening ik niet kan lezen, maar waarvan ik de oorsprong wel vermoed. The motion requires “to send back to the committee the proposal of law of Mr. Crucke on the continuity of enterprises”.

I will do a count to see if at least 50 members support this request.

It is electronically counted.

Electronic counting is carried out.

31 members support the request for return.

31 members supported the request for removal.

31 is not 50! There will be no referral to the committee. We are continuing the general discussion of the bill.

Mr. Speaker, dear colleagues, let me first thank the rapporteur who managed to summarize 180 pages of the report in ten minutes, which is already a feat in itself.

On behalf of my group leader, Mr. Bacquelaine, and myself, it is with a certain satisfaction and even relief that we see this proposal come on the banks of the Chamber.

Of course, we must be modest, as the rapporteur told us. The preparatory work was important, carried out during the previous legislature, where the government and the Minister of Justice had brought a preliminary bill, blocked at the end of the legislature on Article 51 which, today, has become Article 61. There is therefore always the question: if the project had been returned to the committee, we would probably have talked about it for a long time again. At the time, a trade union “no” prevented this bill from being implemented.

Mr. Prime Minister, after the election, it is a note from your part that resumes the dossier. In fact, you propose in July to replace the law of 17 July 1997 concerning the concordat: it does not work. This is an euphemism since it represents a complete failure, impossible to predict when adopting legislation. In this case, the facts proved it, materially. The Prime Minister’s note proposes to replace the concordat with a continuity of business.

Often, there has been a complaint here about the length of the negotiations that may have prevented an assiduous parliamentary work. In this case, it is the length of the negotiations that allowed two parliamentarians, Mr. Bacquelaine and myself, to take the bull by the horns and to reset this already a year ago, on October 1, 2007, a proposal that we will vote this day, balanced with some adjustments.

The Commercial Law Committee, which has met several times, has done a consistent, serious, attentive work. In addition to the hearings, questions, debates and notes have led to a final vote that, as recently recalled, has met no opposition except abstentions. Abstention is also a position not necessarily synonymous with complete disapproval: we will return to this article 61.

In addition, you have to get your printing. This was done on 12 February 2008, since you approved in a committee the guidelines of the proposal while specifying that you wish, following the hearings, that technical elements be modified and that the opinion of the experts heard be taken into account. In this context, a comprehensive amendment has been submitted. It reads as part of the submitted text, but modifies it. Above all, the observations of experts, which I personally want to thank, were taken into account.

If we think that this bill is more than necessary today, it is because we believe that it is a hassle for both the economic sector and for the workers. The failure of the law on the concordat was unanimously observed. The rapporteur cited the figures of 2006; 2007 was also a catastrophic year. In fact, there are 7,000 bankruptcies for 70 concordats. It is to tell you if we are dealing with a law that is not enforced because it is not applicable and, above all, because it includes not only gaps, but weights that made it ineffective. When a company enters a concordat, it most often knows that it will result in bankruptcy. We have therefore developed another reflection, according to which the company will not be held by the only creditors who, let us acknowledge it, are often those who quickly put an end to the existence of the company for very personal reasons, but who are not priority for the economy.

I read in "Le Monde" yesterday what is happening in Spain. The situation here is quite comparable to ours, because this country also has a bankruptcy law and another on the concordat, which does not work. “The reality of the Spanish economic crisis – that is, not only in the statistics of the Bank of Spain, which announced on Friday 31 October the country’s entry into recession with for the first time since 1994 a negative growth – is measurable at the height of the pile of bankruptcy files that overwhelm the commercial courts. The workload of the seven commercial courts in Madrid increased by 986%, and in Barcelona by 973%. A slowness that prevents an adequate response to heavy cases of social and economic consequences.”

The spokesman of the General Council of the Judiciary recalled that more than a hundred thousand workers are waiting for compensation. They may be in cessation of payment when the decision finally comes. Liquidation is often an iniquity, it is like a wounded person who arrives at the emergencies and who must wait for his blood to be drained to be treated. It is the president of the accounting experts of the Spanish Judicial Council who says it!

We are in the same case. When a company finds itself in a difficult situation that does not necessarily imply its end, it must make a choice that leads it to bankruptcy, the concordat is no longer sought. We are in a slightly better economic situation than that of Spain, but it remains difficult. If we do not promptly give these opportunities to the courts, companies and economic actors, we will fall into the same situation as Spain, and we will bear witness to business crashes and workers crashes. That is why this project should be considered today!

Now the stone remains. It consists of Article 61 which governs the fate of workers when the company is ceded.

Mr. Minister of Justice, you have played a crucial role in this matter, by finding a transitional formula. This formula can be appreciated or not. I understood that some here wanted another solution to be proposed, that of an agreement between the social partners. There is a transitional proposal. It has received not the approval but the approval of the social partners who approve its broad lines.

In this case, the rights of workers are preserved and a collective agreement can be reached between the cedent, the cessionary and the workers. Similarly, it is permitted, between the cessionary and certain workers, to find individual agreements. In this way, the recruiter will be able to make a choice when recruiting a part of the workers, based on technical, economic and organizational criteria.

This seems to us to constitute sufficient guarantees, while reserving in addition the approval and approval of the court. This transitional solution seems to me good and even if it can be improved, it must come into effect.

You will understand that this change of the law is innovative, balanced, it will bring more flexibility and simplification.

Since my group leader gives me a sign and I tend to obey him, let me conclude with what the Chairman of the Court of Cassation, Yvan Verougstraete, said about this proposal: “If these provisions are adopted, they will constitute a major asset for the Belgian economy. They are part of a traditional left-right split.” I hope that this prophecy will receive the approval of this parliament and that you will approve this bill.

We will vote for him with enthusiasm.

The objective of this law is good. It is effectively to allow the continuity of a business when it is in difficulty without having to go through the bankruptcy procedure and to improve, ease and facilitate the provisions in relation to the concordat.

But if the concordat does not work, it will not work automatically. There is still an important cultural element in our country, which does not only affect companies in difficulty but also entrepreneurship in general, which is that bankruptcy or finding yourself in difficulty when you are a business manager is a failure. This is a failure and it is badly seen. The person who has failed in his business is disqualified from others to obtain loans and be able to resume a new business. Our culture in relation to the entrepreneur’s failure is special. It is not the same in other states or in other cultures.

This is a work that goes beyond the scope of our legislative work, but I think that we can only guarantee the success of devices, even simplified and softened like these, if we can also change this culture and recognize that we can be wrong. To do this, workers must be able to guarantee the protection of their rights and legal certainty in the arrangements that are being put in place. One cannot go without the other and one cannot hinder the other.

That is why I have worked closely on the arrangement and the discussion on this bill.

I will not take back all the positive aspects of the bill that concerns us and that I can share. However, I would like to intervene on Article 61 and therefore on the issue of the protection of workers’ rights.

Several times, questions have been asked about the guarantees offered. In particular, we wanted to know whether or not "navigating" between different legislations. We wanted to be informed about the possibilities of recourse when the information is not properly given. We also wanted to be told whether the worker who stops his activity or decides to resume it would really be supported and would have all the means to assert his rights.

What were the answers given? We were reminded that there were laws, transitional provisions, but also and above all that the National Council had given a unanimous opinion. However, we have never been able to transmit this opinion to the Commission. In addition, we rarely had the opportunity to see the Minister. It was his representative who informed us that this was a letter in which the National Labour Council is pronounced. The documents were not provided to us despite the steps taken in this direction.

The vote took place in the committee in July. The Minister of Employment had been charged in April or May – I don’t know exactly – to proceed with the report of the provisions to be amended. And today, she comes to tell us that the work is progressing but that there is no record of the provisions to be changed. However, this task was entrusted to him.

Furthermore, we are informed that the National Labour Council agrees, that the work is moving forward and that we will soon have a new CCT. Nevertheless, according to the information I have received, things are not going as well as some claim. Trade unions and employers do not have the same readings, the same interpretations. As long as this is not the case, a unanimous opinion cannot be given, and a new CCT cannot be born.

We have been constructive. We asked questions. I waited, telling myself that I had to leave time. When, immediately after the vote Mr. Leterme resigned, I thought it was necessary to let the government work during the holidays in order to allow it to catch up. Today, mid-November is approaching and the issue is not yet resolved. Then you will understand that I may have fears.

I repeat that I wanted to have time and, above all, to work on the basis of the opinion of the National Council, on the basis of the consideration of the provisions to be taken in the field of labour legislation for the protection of the rights of workers in order to enable them to dispose of the necessary remedies and protections. I also wanted an assessment to be carried out in order to avoid damaging the device and that the effect of the device is not the same as the concordat. Therefore, the provisions of the latter should not be considered too heavy. I wish that we could review our proposal and possibly modify some elements, if necessary.

We do not have a list of the provisions of Mrs. Milquet. We do not have the state of the CNT sites and we do not have a unanimous opinion of the CNT on the work they are doing.

In these circumstances, it becomes very difficult to approve this proposal. It even becomes complicated to abstain—which I did in commission—because I had then trusted in the work that was to be done.

It’s because of these shadow zones that I didn’t vote for. Nevertheless, work was planned and agreement had to be obtained from social partners, employers and trade unions. If this agreement is not reached, the provisions cannot enter into force. What would you win? Nothing at all! You will have won by getting us to vote today, and then getting us to start work again eventually later because we will have to imagine something else because of the disagreement of the partners.

Today, if I vote for this text, I will vote for a cat in a bag with regard to these provisions that will guarantee the respect for workers’ rights and the legal certainty of the procedures that workers will have to follow.

I regret that you use the argument of urgency although we know that this law will come into effect only later. There is no urgency!

If Ms. Milquet was right to say that the work is progressing well, we could wait until December 1st. We might have then had this unanimous opinion of the CNT with a CCT and we could have voted this text. This is not the case. If you do not accept our proposal to delay things, it is because you are as afraid as I am that there will be no agreement and therefore no concrete application. We will talk about it in a few weeks or in a few months.

Mr. Speaker, colleagues, the legislative proposal substantially amended by the government, which we will vote on today, is important. Important because it seeks to create an instrument that should enable the resumption of a company in difficulty. Especially in the current economic context, a good legal framework to guarantee the survival of a company, also in the interests of the employees, is of particular importance.

To highlight the importance of the new law, I would like to take a look at the current law of July 1997 on the judicial settlement, which has ⁇ limited success. The number of procedures requested and initiated annually is ⁇ low. The figures show that between 2001 and the first quarter of 2008 there were exactly 741 applications for a judicial settlement. Moreover, a significant part of the applications for a judicial settlement still ended in bankruptcy. To illustrate, a few figures. Of the 73 judicial settlements awarded in 2007, 24 today ended in bankruptcy. In 2006, 91 judicial agreements were awarded. More than half of these companies have gone bankrupt.

I say this only to show that a reform is needed and that an important legal framework is being created here. That legal framework also came as one of the conclusions of the Sabenacommission, but only now knows its seizure. I would like to remind you that in the previous legislature there were repeated attempts to reach an agreement, but that never succeeded.

Mr. Crucke and Mr. Bacquelaine’s bill takes back the work of the purple government, but has been re-written quite thoroughly after a series of hearings and by the work of a group of experts in the Cabinet of the Minister of Justice.

What are the main strengths of this design? In addition to the numerous simplifications, it was attempted to break with the negative connotation of the current law on the judicial agreement. More emphasis was placed on the continuity of the companies. That was one of the reasons for the limited success of the Law on Judicial Agreement, namely the negative connotation that the term Judicial Agreement had, both in the media and among the various trading partners of the companies in difficulty.

A second major improvement is the greater flexibility offered to start the procedure. Conditions are smoother and less strict. Acting can be much faster, so the survival of the company is much more likely to succeed.

A third major innovation, which is yet quite fundamental, is the fact that the undertaking in difficulty already has several options from the start of the procedure. It is no longer bankruptcy or concordate, where the concordate was often synonymous with bankruptcy. There are different systems possible.

Three possibilities that can be followed up, separately, where one can also easily switch from one procedure to another, this again to guarantee the necessary flexibility, reduce the administrative burden and thus enable the survival of the undertaking, also in the interest of the employees.

I will not extend on the greater attention to the screening, on the possibility of extending the deadlines, but I would like to talk about the point of workers’ rights. This is of course the most sensitive and delicate point in the whole law. The delicate balance between the interests of the employers on the one hand and of the employers on the other, which was sought by the Minister, is actually the middle between guaranteeing the flexibility for the entrepreneur and also – which is ⁇ important – preserving the rights of the workers. The NAR’s opinion clearly states that this is a compromise. It is printed black on white. Everyone knows that a compromise is always giving and taking. In my opinion, the system of judicial after-approval is also sufficiently balanced to serve as a basis for further negotiations within the NAR. This is also part of the compromise; all aspects of the social law system are further negotiated within the NAR. The Minister of Labour has just said that there is a shot in the matter, that it is meeting on a regular basis and that there is a chance that an agreement will be reached before the end of the year.

It is therefore the opinion of our group that the bill with the extensive government amendment deserves all support. I dare count on this important legal framework to find a broad majority in this Chamber.

Colleague De Potter, I actually agree with the emphasis you put on the importance of the law, especially in its objectives, and at the same time with your criticism of the existing judicial agreement. I was one of the advocates at the time in the Sabenacommission to revise this.

I would like to try to correct you on two points. First, I hope that with all of it, we do not create the expectation that this will now fundamentally prevent many bankruptcies. I hope that here and there it is going to go to smoother procedures and here and there bankruptcy can be prevented, but acquisitions in this country happen very much and usually outside of the judicial procedure. Fortunately but!

I want to go back to Article 61. I repeat what I said in the committee, Mr. Minister, in your absence, with respect to your spokesman or cabinet employee who has repeatedly assured me that there is a unanimous opinion on this subject. This does not appear to be so. There is indeed a letter because of the National Labour Council in which the social partners try to commit to replace Article 61.

Meanwhile, we know that there is such a thing as the CAO 32bis that is opposed to the flexibility that one wishes to ⁇ and which, in my case, is also necessary in order to be able to negotiate employment conditions, wage conditions, etc. when transitioning from one company to another. However, that CAO 32bis remains in force until the social partners have adjusted it and simultaneously developed an alternative to 61. There is no unanimous opinion on an alternative. Moreover, the Minister may speak for his turn. Today I have heard in employer warrants that, among other things, the VBO says that the law is perfect for them. That fulfillment will not come. We do not have to wait for the social partners or the NAR. It is only a advisory body. Here we can approve what we want without the advice of the National Labour Council. What I want clarity about, however, is that one must very well realize that if we approve this, there is a very high chance that one here approves the interpretation of the employers without a unanimous opinion of the NAR. That is the only thing I want to add to that.

All of this has already been said.

Does anyone ask the word?

... ...

I mean that the entry into force of the law depends on a royal decree to be taken by the King. No, it states “and at the earliest six months after the publication of the law in the Belgian Staatsblad”. So it is the King who will decide when the law will come into force. We give the social partners the opportunity to reach an agreement. I have full confidence in the social partners. I don’t know if this applies to you, but I have that confidence.

I would like to start with a sad conclusion. The draft that is presented today is actually the first major bill that is presented in 17 months Leterme I, this then in the form of a government amendment to replace a bill, the state guarantees in the financial crisis of course left out of consideration. It is not too early because the current system has long been replaced. The judicial agreement is governed by the law of 7 July 1997 and the underlying idea of that current law on the judicial agreement was meritorious, but in practice this went completely wrong. Colleague De Potter described the sonet as a limited success. I think this is expressed very euphemistically. It was intended that the judicial settlement would be an agreement that could conclude a company in difficulty in order to re-enter it and thus avoid bankruptcy. In practice, due in part to the perception problem and the cost plate, this turned out completely differently.

In less than 1% of cases, there is a successful plan or successful transfer of the company.

I will give an example. Mr. De Potter said that in 2007 73 judicial agreements were granted in our country. I make a small comparison. There were 7,000 bankruptcies declared in the same year, with which I want to demonstrate that the old system does not work.

More important than the number of successful agreements and statistics is the number of secure jobs. From that concern, the draft on business continuity presented today is ⁇ a step in the right direction. In fact, compared to the existing scheme, the draft law offers much more instruments to make viable enterprises or viable parts of enterprises exist.

The new law adds some important options. On the one hand, the transfer of a firm in difficulty by another undertaking is made possible, thus avoiding major social and economic consequences of bankruptcies. On the other hand, the possibilities to reach an agreement with the creditors will be facilitated. There is the preparation of a reorganization plan with the approval of the creditors. There is also a friendly agreement. Both increase the chances of survival of the company in difficulty considerably.

However, the reform of the judicial agreement, as she presented today, has been waiting too long. There was already a similar draft during the previous government, in 2006, whose text was adapted to the opinion of the State Council and to the many comments made by numerous experts during the hearings and during the discussions. We are therefore very grateful to the professors, the secretaries, the curators, the magistrates, the trade unions and the employer organisations for their indispensable contribution to the creation of the draft.

On one article – you can probably already guess which article I will pick out, namely Article 61 – I would like to return.

It is, as the National Labour Council also points out, indeed a compromise text on the rights of workers in the event of the acquisition of the company in difficulty. It stipulates that workers in principle retain their rights. By collective agreement between the acquirer, the undertaking in difficulty and the workers' representatives, the conditions of employment may be derogated. The individual employment contracts may be derogated by individual agreement. The contractor shall also not be allowed to discriminate in the selection of staff. For example, he will have to take over the same percentage of trade union representatives.

However, it does not stop at the aforementioned compromise text. It was also agreed that the social partners could further develop the principles set forth in the framework of social consultation within the National Labour Council. In this respect, they may derogate from the Framework Agreement.

Mr. Minister, in one of your press releases that still appear on the website of the FOD Justice, you say it yourself.

The press release – rightly – states that it is a provisional arrangement, which was developed for the social status of workers acquired by another company.

The press release further states – I quote – “This arrangement needs to be further refined and elaborated by the social partners within the National Labour Council.”

Indeed, in its opinion of 9 July 2008, the National Labour Council committed itself to develop its own regulation concerning the social status of workers before the end of 2008.

At present, there is no certainty as to whether those social partners will still be able to develop a scheme by the end of 2008. According to Ms. Milquet, we should not worry. But when Ms. Milquet talks about agreements and deadlines, I still hold my heart, because the experience has learned something different over the past months and even years.

In short, as long as there is no clarity about a possible agreement, we cannot fully support this draft. Our group will abstain today.

“The Great Disillusion” is the title of a book published in 2002 by Nobel Prize-winning economist Joseph Stieglitz. The great disappointment is also the title of which the law on the concordat could be covered. This law carried many hopes, but it proved in practice too expensive, too rigid and therefore ineffective. If I borrowed the title of this book, it is because in 2002 the author wrote that there were six or seven important steps to take in our world and in our States. I will read them to you.

The first was to recognize the dangers of capital market liberalization and to admit that short-term capital flows and speculative money impose enormous externalities. The second is the reform of bankruptcy. And the author says it is high time to impose reforms in this law taking into account the special characteristics of many bankruptcies that are macro-induced bankruptcies. I will return to it in a few moments.

I would like to make five observations today. First, this law is a necessity. It must enable rescue, and as its name suggests, it must enable the continuity of a series of enterprises. It must do so in our country which is a country of open economy, that is, subject to competition and whose economy, due to fluctuating movements, may suffer more than others. It must do so especially also because it must save jobs, because any business that breaks down through bankruptcy – of course, you can always give up the company – leads to social difficulties, especially when it comes to disappear.

Second note: where the concordat has failed, I hope that this law can succeed. I recall the measures that make up it: amicable settlement, if not a collective settlement; a transfer of business, voluntary or non-voluntary, always under the authority of justice.

Add the intervention of new actors: a strengthened trade investigation service, a corporate mediator, a judicial representative, a delegated judge with other competences.

The third observation. What I find interesting in the government’s proposal and amendment is that two principles have been adhered to: simplification and cost reduction. These two principles seem to me essential to address a series of difficulties facing economic operators and to avoid what is qualified by Mr. Stieglitz of macro-induced bankruptcy.

The fourth observation. I will not say that the law has resolved everything. There are still questions. If there is something to say tonight, it is that we will have to go back to the job. In particular, it will need to be seen who will bear the costs of these speakers. Certainly, the prevention of business difficulties is a regional competence, but that goes in particular, given that the delegated judge will assume other responsibilities, to focus on giving him a more acceptable status from a monetary point of view.

It will also be a matter of seeing how certain creditors, and I think in particular the institutional creditors, among which more specifically the ONSS, will play the game, which has not always been the case for the concordat law.

We will also have to ask ourselves, ⁇ in the coming years, to see if the right of initiative really should remain in the hands of the entrepreneur alone. Shouldn’t this right of initiative be shared by others at some times?

Finally, since the reflection will remain that, would it not be necessary to give jurisdiction to the court filed with a bankruptcy application of the possibility of orienting the company towards this law, towards continuity, towards other forms of resolution of these conflicts to avoid the solution of facility being that of bankruptcy?

Shouldn’t we also, in the coming months and years, look at the whole issue of privileges? There are more than eighty privileges in the law, and each, in the face of companies in difficulty, tries to attract the remains for his own profit alone. This is indeed a situation that deserves our attention.

There is article 61 but the law, as the minister told us, is based on a compromise that has been concerted. The CNT has the possibility to take and implement another solution that could meet the assumptions provided for in this law. I wish it. We must be positive, we must hope that the social partners will take responsibility to ensure that this law can be applied.

In any case, the solution, as it is intended to be provisional in the law, is significantly more favourable than the one that workers are currently facing in the bankruptcy law. We must also be very clear in this regard.

My fifth observation is that it is necessary to believe it. It is necessary to believe in it to give it chance because, in terms of business, it is trust that makes the credit and the value of a company, it is its reputation. As I explained a few moments ago, this law is likely to avoid auctions between creditors where everyone tries to take out the debris of companies in difficulty. Its title carries hope as it relates to the continuity of companies.

Mr. Speaker, Mr. Minister, Mrs. Secretary of State, the Socialist Group can only be satisfied with the positive development of a profound reform of the law initiated by Laurette Onkelinx, Minister of Justice in the previous legislature.

We are pleased because this reform will facilitate the rescue of a company in difficulty while ensuring that the interests of companies, stakeholders and above all workers are taken equally into consideration than the proposed law of MM. Crucke and Bacquelaine had, for us, a tendency to neglect.

Given the economic context and the recession that unfortunately is knocking at the door, we hope that this revision of the law will help many companies and will allow above all and above all to help workers who, let us not forget, are most often the first victims of companies in difficulty.

The concordat procedure, renamed "judicial reorganization procedure", will offer companies in difficulty a plurality of options, rather than the concordat/failure binary option.

This multitude of options is made through less heavy and less expensive procedures. This will facilitate the chances of reaching an agreement with creditors and avoid as much as possible the adverse consequences related to a bankruptcy.

For companies, this represents a significantly greater chance of survival.

For workers, several scenarios are now possible: judicial reorganization by amicable agreement, by collective agreement or by transfer under judicial authority. This therefore gives a greater hope of ⁇ ining economic activity and thus ⁇ ining employment.

If we can be satisfied with the path that has been taken, it is also and above all because, by proposing its amendment, the government has regarded workers not as mere assets of the company but as human persons with rights, concerns and claims.

We can only congratulate the government, in particular the Minister of Justice, for taking the initiative to bring together the social partners in order to ensure that social consultation can take place and to reach an agreement on the status of workers in the event of a company transfer under judicial authority.

Indeed, the main stumbling stone for the Socialist group concerned the problem of workers’ rights in case of transfer under judicial authority because in no case could we accept the misinterpretation by the authors of the proposal that such a transfer was an insolvency procedure analogous to a bankruptcy. Such orientation, permitted but not imposed by the European Directive of 12 March 2001, would have resulted in the application mutatis mutandis of Chapter 3 of the collective agreement 32a, or the failed part. This means, for example, that the free choice of the cessionary then really exposed workers to arbitrariness, the choice of the worst-paid workers or the elimination of worker representatives, and that the principle of the so-called free negotiation of individual working conditions is of course an illusion in such a context.

The government amendment constitutes an honorable compromise between the interests of workers and those of employers, pending the CCT within the National Labour Council, which could refine and complement the rights of workers. In this regard, we recall the formal commitment of the Minister of Justice and all majority parties to give time to the CNT to conclude this collective agreement and, if necessary, to postpone the deadline of 1 January 2009 by means of other legislation that we will have to deal with in the coming weeks.

The Government amendment sets the principle of ⁇ ining the rights of workers since the rights and obligations resulting, for the cedent, from existing labour contracts at the time of the transfer of the enterprise are thus entrusted to the cessionary. This is fundamental, although it is only a principle, since it is permissible to derogate from it, in particular with regard to individual employment contracts. On this point, the fact that the possible changes must be linked mainly, according to the text, to technical, economic, or even organizational reasons does not fully reassure us. In fact, the transfer already implies by itself, and by definition, an economic motive. Finally, we know that the worker is not in a force position when he is engaged in an individual negotiation with a new employer.

Furthermore, our requirement was also that in the event of a recovery of a part of the workers, it is also necessary to recover a proportional part of the representatives of the workers. On this point, the Government amendment has met our request.

Finally, the Socialist Group still wants to highlight two other positive points that deserve to be mentioned. First, it is the obligation for the cedent or the judicial representative to inform the cedent in writing of all obligations relating to the workers concerned and to notify them of the obligations towards them. It should also be mentioned the possibility for these, in case of incorrect or incomplete data, to claim damages and interests from the cedents by referring to the labour court, which will then have to decide urgently.

Next, I mention the possibility of requesting the approval by the court of the transfer agreement, which is in a way to guarantee the legal certainty of the different parties.

In our view, the text thus issued is an honorable compromise for companies, stakeholders and workers. Both workers’ representative organizations and employers find a number of positive elements in this. This is why the Socialist Group is in favour of this bill that is presented to the vote today.

Mr. Speaker, I would like to thank the applicants of the original bill and the colleagues who have sought good technical solutions in the committee. I think it is important to emphasize that a significant part of the preparatory work took place during the mandate of colleague Onkelinx, who was then Minister of Justice.

It is important that Parliament sends the signal that we are reforming the procedures, precisely because we are facing very important economic challenges. It would be good that, with adapted procedures, we could pay more attention to the question of how we can provide continuity to the undertakings at the moment that difficulties arise, in the interest of everyone.

In that regard, I believe that both the timing and the legal framework provided by the law should also be an encouragement for the social partners to join in the search for good solutions within what has been stated. In that sense, I can only say that I would be very pleased if the Chamber approved the text.