Proposition 52K2261

Projet de loi relatif à l'exercice d'une profession libérale et réglementée du chiffre par une personne morale.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Nov. 19, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

liability organisation of professions accountant organisation insurance

Voting ¶

Voted to adopt

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

Voted to reject

Vooruit

Abstained from voting

Groen Ecolo

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Discussion ¶

Dec. 10, 2009 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Minister, dear colleagues, the Commercial Law Committee has in recent weeks examined the bill on the exercise of a liberal and regulated profession of the figure by a legal person. She instructed me to make an oral report of her work.

In her introductory presentation, Ms. Laruelle stated that corporate auditors, accountants and accountants already perform their activities under the coverage of this and that they are registered in the Institute’s table. It also states that the scope of the bill is to ensure that those same delegated or managing directors, who are natural persons, are no longer liable for their professional faults, with the exception of heavy faults and faults that are similar to dol.

The discussion was opened and several speakers spoke, thus allowing to circumscribe the issue and the scope of the project.

The first of them was Mr. Van Biesen who noted that this project had the consent of representatives of the sectors concerned, accountants, expert-accountants, tax advisors and corporate auditors. He insisted on the fact that the bill provides for a legal obligation for interested parties to subscribe to professional liability insurance, which is a guarantee for third parties.

Ms. Uyttersprot pointed out that the insurance obligation was not applicable to business auditors, asking whether it actually existed. Minister Laruelle replied that she already existed for this profession.

I myself intervened in the debate, asking several questions to the Minister, in particular on the problem of the extent of insurance coverage and on the fact that if managers of companies are released from their responsibilities towards third parties, the provisions taken in tax matters make these managers legal debtors of VAT and direct contributions.

Ms. Gerkens linked the debate to another bill, recently voted, concerning SPRL S. She pointed out that, too often, persons who formed small companies referred to standardised forms, sometimes for economic reasons, and that the responsibility of those who constitute these files and these financial plans was heavily engaged and that this obligation should not be further lightened through this law.

by Mr. Tuybens opened the debate more broadly by pointing out that, in the context of the recent financial and banking crisis, serious mistakes could be attributed to those responsible for the figure. It was for them to be more concerned about the profitability of their company than about the quality of the work they provided.

by Mr. Van Biesen replied that for now, the number-regulated intellectual professions have anyway the possibility to carry out their activity in the form of a company and to limit their liability, Mr. Tuybens responding in turn that this did not change their de facto responsibility in anything. On the other hand, Mr. Tuybens indicated that many of these companies in the figure depended on one or two persons and that there was some sort of liability shift by exercising control under the cover of a company which itself would be released from its liability. According to him, we have already known the consequences of the approximations of the sector and it should be taken into account.

Then there was an exchange of views. Thubbens and M. Van Biesen on the history of a 2006 law on architects of which I will pass the details. by Mr. Perpète intervened in the debate to request clarifications regarding the recommendations of the tax fraud committee, insisting on the fact that the responsibility of intermediaries, in particular the numerical professions, lawyers, was the subject of the attention of this committee. One of its recommendations was to require this group to collaborate in the fight against tax fraud by introducing reporting rules. He noted that one of the recommendations was to impose harsher penalties on those who handed out or recommended tax arrangements that proved fraudulent.

The minister replied that this behavior, as in the past, could result in both radiation and civil and criminal sanctions and that it was clear that Parliament’s recommendations on combating tax fraud are not in conflict with the current bill.

The debate was closed, Article 1 was unanimously adopted, Article 2 by eleven votes against one.

We live in surreal times. In fact, we were told in the committee that this was a very important project, that it should be discussed as soon as possible in plenary session. In addition to Mr. Van Biesen, Mr. Clarinval and Mr. George, I don’t know if anyone in this homecoming is listening to what is being said. It is true that the current situation where texts are received very late, which are read and voted quickly, obviously does not incite to indulgence.

With regard to this project, Mrs. Minister, dear colleagues, I have expressed in the committee some reservations and some fears.

Even if one can say that a form of management is put in place: insurance obligation for a company, possibility of withdrawal of approval, and that it is thus made responsible, what disturbs me is that by strengthening the possibility for the staff of the figure to work through a company rather than as a natural person, it dilutes, in my opinion, the responsibility of the individual towards his client. From now on, it will be the company that will be responsible.

Furthermore, a legal person may fall into bankruptcy and then re-born under another name at another time and in another place. A natural person remains a natural person. I therefore consider that the monitoring of the activity of the number professional is less well assured when the latter works in the form of a company.

Furthermore, Mrs. Minister, can you tell me what happens if this company is not insured?

There are systems that provide for centralization. I think, for example, of notaries who must contribute to a solidarity fund. And it is thanks to all the contributions of notaries that there is repair through this fund.

This allows, on the one hand, to verify that the company or individual is insured and, on the other hand, to ensure that there is compensation and that everything works well. There is no such mechanism here.

If I am concerned or at least if I draw attention to this point it is, as Mr. Georges relayed it, because more and more new entrepreneurs depend on the quality of the business plan, for example on what the accounting expert will do to benefit from this new start-up status and to benefit from credits. The quality of these plans and the accompaniment will often also be a condition for the continuation of the business since it is known that it is usually during the first five years that companies go bankrupt.

Therefore, as much as I can understand the interest for some people to work as a company because it brings tax benefits (cost to be deducted), so much I sometimes have difficulties in accepting that the use of the form of a company is encouraged where it prevents the continuity of activity in the same way and where the responsibility of the individual towards its customers who are dependent on him, for their careers, for their turnover and for their future is diluted.

That is why we will abstain when voting on this project that contains devices that frame but also a share of risk in the quality and continuity of the activity.

I will not be speaking too long because we have already discussed this in the committee. Nevertheless, I would like to make two comments.

First of all, at the level of the tax status, this does not change anything since entrepreneurs could already operate in a company. The only thing that changes here is that insurance can be taken in the form of a company. This is exactly what we do for architects. The tax status does not change at all.

I also remind Ms. Gerkens that institutes will have an obligation to verify that the companies listed in the tables are insured just as they must already do for natural persons. There will be a priori control.

Those who are not insured cannot function as a company.

Or a physical person. There is an insurance obligation. Or, they exercise as a natural person and a control takes place a priori. Or, they subscribe to their insurance in the form of a company. Companies will have to be registered in the Order and a control will take place a priori.

This is reassuring, but...

You will abstain anyway.

This is one of the reassuring elements that I had partially understood. I have given you the arguments for which we will abstain. These are essentially the dilution and non-continuity of the legal person in relation to the natural person.

The [...]

No to No! A company is born, goes bankrupt, etc. The physical person is either alive or dead.

After his death, heirs become beneficiaries of the insurance! There is a greater continuity in the head of a legal person than a natural person. Let’s stay here because I won’t be able to convince Mrs. Gerkens!

No, you will not be able to do that. Requirements must be strengthened for figures professionals, the quality of reports, financial plans and the control or support they provide. A certain degree of rigor and guidance is required. This should be done with institutions but also with politics.

Some form into society, disappear and reappear. The fact of entering into society encourages these devices.

I will not be able to convince Ms. Gerkens. She will not convince me either.

This bill provides a legal framework for accountants, tax specialists and corporate auditors to exercise their profession as legal entities with limited liability. That is a noble goal.

The present bill is a natural continuation of the steps already taken in 2006 to do the same with the architects, to which CD&V was actively involved at the time as an opposition party.

We consider it important that this draft law has been drafted in consultation with the industry so that it can be easily applied in practice and meets the legal needs of the sector.

For customers of these numerical professions, it is important that they can fall back on the compulsory insurance that the companies must sign. Since there was a personal liability until now, it was not always clear who made the mistake in a company with several accountants. In the worst case, several persons had to be brought to court. By this law one can simply prosecute the company, since it bears the responsibility.

Because the companies must sign an approved insurance when implementing this bill, the customer is sure that there will be a coverage to compensate for the damage suffered in large part. It is also important for the partners themselves that there is now a clear separation between their own assets and that of the company. This ensures that they can manage their own assets, gifts and inheritance without worry and that heirs no longer have to worry.

It is important, however, that in the event of deliberate fraud or in the event of deliberately causing damage, one remains personally liable.

Some parties are of the opinion that a limitation of liability will lead to a less serious approach to their work. We consider this to be a disregard of the deontological code that the numerical professions – whether or not working in the form of a legal entity – endorse. In addition, the audit body IAB has additional stricter powers to act.

In the meantime, we look forward to the further steps that the Minister will take to write the other bills, so that the associations of other intellectual professions can also get a limited liability when they work in the form of a legal entity.

Mrs. Minister, we expressly ask you to consult with these sectors as thoroughly as you did now, since their needs are even more specific than those of the numerical professions. But our group is satisfied with this bill. We will approve it.

Mr. Speaker, I would like to intervene very briefly from my bank. I would like to hear a slight protest in connection with the work on this subject.

I understand that there has been a question to add this draft to the agenda of today’s plenary session. This is also accepted. The discussion of this bill took place two days ago in the committee responsible for the problems of Trade and Economic Law. I understand from the rapporteur that he received the text a dozen minutes ago and that therefore he had to make a summary of the discussion in the committee very quickly.

During the discussion, we asked a number of questions to Minister Laruelle on this issue, to which I did not receive a full answer. Therefore, we were thinking about taking the word on this subject in a substantial way. That is no longer possible now, because there seems to be a major problem and the draft really needs to be pursued by Parliament within two days. The reasoning for this is, at least, completely unknown to me. Such an attitude does not benefit the quality of the report of the discussion, nor the quality of the debate and in fine of course the quality of the legislation.

I would like to repeat one question I asked yesterday, as I also wanted to further elaborate them in my presentation, which I had planned for next week. I asked why the system presented here was accepted in 2006 for the architects, but not for the numerical professions, as it is now proposed. I received the very interesting response from the Minister that we are now living in the 21st century. I thought 2006 was also in the 21st century. I answered that the proposal was also discussed in 2006, but that the SPA then, as a ruling party, for many reasons that I also explained in the committee, refused to regulate it for the numerical professions. In the meantime, I have received confirmation.

That it will come three years later says a lot about this government, but not about the then government. I think that the sp.a then, as a ruling party, explicitly demonstrated why the draft could not be submitted.

I wanted to develop this further. I have no time to do this now because there are less than 48 hours between the hearing in the committee and in the plenary session. I find this really a throat-framing of the Room, this is really no longer serious. I therefore protest, even though I know that this will no longer have any effect, against the manner of action requested here by the government.

Collega Van Biesen has in the Trade Law committee indeed made the suggestion to bring this to the plenary session soon. That was a suggestion. So I understand from you that the government has asked for the highest urgency. Therefore, I would like to ask the Government two specific questions.

First, why is it so that this draft law did not continue in 2006 and now in 2009? The Minister’s response on Tuesday will therefore be completely different from the answer she will give today.

Secondly, members of the government, why did this bill have to be hunted by the House in two days if necessary? Even the rapporteur has had difficulty reading the texts before publishing the report. These are two relevant, specific questions I ask the government.

Mr. Tuybens would like to mention me in this matter and I thank him for this, as this is an important bill for the numerical professions. There are several agreements concluded between the numerical professions and the government to provide adequate work. We are very pleased that this bill is coming. We are not talking about it, we can do it in the committee. The only reason I asked to add this to the agenda today was that a very broad majority had said to be in favour of this bill. There were very few discussions. So it could be perfectly added on a day like today, when there were ⁇ few bills on the agenda, so that we could have a little more time to talk about it. However, this is not enough for the SP.

Second, I am very angry at the systematic incorrectness of Mr Tuybens’s argument. Mr Tuybens says that this bill was in the government banks in 2006. That is incorrect. It was not stopped by the SP.A, it did not exist at that time. At that time we were still in consultation with the numerical professions on the bill. If the sp.a here claims that this was not accepted by the sp.a within the government in 2006, that is completely wrong. At that time, the consultation with the numerical professions was still in progress.

I give the floor to the Minister, to answer the questions asked by Mr Tuybens.

During the committee meeting we talked a lot about this draft.

I repeated to Mr. Tuybens that in 2006 the government and also the Chamber adopted a different law on the same principles for architects. Now, three years later, there is a good evaluation of the system for the architects. Because of this system, we have no problems with architects.

The government has decided to submit these principles to the numerical professions. That is the purpose of the present draft. We want to apply the same for the economic professions. I have already had a conversation with my colleagues in charge of justice and healthcare in the other professions.

So I think it is very important to do that.

Why do we submit that design now? Well, the law for the auditors, for example, dates from 1953, so from the last century! In 1953, there were almost no companies. Nowadays there are more professions and a lot of practitioners of professions no longer work in the form of a natural person, but set up a company.

in the form of a natural person. That is why we are doing it now and that was not proposed in 1953, the time when I was not born, Mr. President.

I am not going to ask your age.

Mr. President, according to Mr. Van Biesen, there was hardly any discussion of the present bill during the committee meetings, while, according to the Minister, it was discussed long and extensive. It is appropriate that in the future they better agree with each other on what they will say specifically.

I criticized during the discussion of yesterday in the Chamber Committee on Commercial Law, because, in the case of auditors and external auditors, a de facto shift in the responsibility of the numerical professions creates a situation where the profitability of external auditors and auditors becomes a more important aspect for the companies than the control of the work delivered. That is why in 2006 we, as the then ruling party, said during the government talks that we could not agree with this. That is why I voted against in the committee, as I will do later in this plenary session.

Again, I asked a question to the minister, but she did not answer. Why, in two days apparently, now the high urgency is needed? Can it, in favor of the quality of the debate, not be postponed for a week? In addition, Mr. Speaker, I asked two days ago in the committee whether the minister had a view on the attitude of the insurance sector. As far as liability is concerned, it is mandatory to conclude a full insurance. I asked the Minister what the attitude of the insurance sector was about this and I also received no response. These two elements remain unanswered for me in this plenary session. I wanted to develop that further, only I don’t get the time to do it.

I leave it to the appreciation of the government to intervene.

I can only say, Mr. Tuybens, that yesterday at the Conference of Presidents we received a request from the government to add the bill on the agenda today. There was some discussion about this, because there were also other questions. However, the two draft laws to which I have limited myself on today’s agenda are urgent, in application of Article 80. In other words, in the case of urgency in the application of Article 80, it cannot be discussed. I don’t know if Mr. George, as you say, has had to wrinkle in 1001 curves for his report.

He issued a report. We discussed this in a general discussion. You have been able to present your arguments. Is it difficult to respond to the request of a member to postpone the case for a week? Wouldn’t that be an ordinary way of working?

I am addressing the government. Mr. Tuybens asked a number of questions and received a number of answers. Does the Minister want to intervene in the debate?

Mr. Speaker, you said it and everything happened in commission as it was said: Mr. Speaker. Van Biesen proposed the emergency and I obviously accepted the emergency.

Mr. Speaker, at least for the report, I note that two relevant questions were not answered by the Government.

It is scandalous that we have to discuss a draft law in plenary session and vote on it, while a number of questions on it have not yet been answered. I refer to the question posed by Ms. Uyttersprot in her discussion on the insurance aspect, which, in my opinion, was also not fully answered.

If it is the Government’s desire to discuss in the plenary session draft laws on which questions are still open, then I can only take note of that.

It is not because Mr. Tuybens doesn’t appreciate my answers or he doesn’t believe that I didn’t answer! As I answered, Mr. Tobias spoke with Mr. by Van Biesen. I’m not going to repeat a hundred times because they’re talking together instead of listening to what the government says. As for insurance, I gave a very clear answer. There were contacts with insurance companies.

The system relating to the architects was evaluated very well. Again, there is no problem with the insurance sector!

If one does not agree with the draft law or with the responses of the government, then one can later show that through the voting behavior. This is the way Parliament works.