Proposition 52K2313

Projet de loi modifiant les articles 1022 du Code judiciaire et 162bis du Code d'instruction criminelle et abrogeant l'article 6 de la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Dec. 7, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

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

Voting ¶

Voted to adopt

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

Voted to reject

FN VB

Party dissidents ¶

• Renaat Landuyt (Vooruit) abstained from voting.

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Discussion ¶

Jan. 28, 2010 | Plenary session (Chamber of representatives)

Full source

The reporter is Mr Renaat Landuyt. Can I assume that he refers to his written report? We will not ask him to read it all.

Mrs Lahaye-Battheu, Mr Terwingen and Mrs Déom are registered in the general discussion. Mrs Lahaye-Battheu is not present. Then I give the word to Mr. Terwingen.

Mr. Speaker, Mr. Minister, colleagues, it is good that the law of 21 April 2007 on judicial fees is revised in the meantime. There were some squeezing points and unfair situations arose. This has been shown by practice. Hence the need for an adaptation of the law.

It was Minister Jo Vandeurzen who already pointed out in his policy statement of November 2008 that the law needed to be improved in order to make the system “more balanced and more legal certainty.”

In the meantime we have developed parliamentary initiatives on this legislation. We, CD&V, have already been able to express a legislative initiative in this regard which resulted in the law of 22 December 2008, which already allowed the court to give the parties the possibility to come to a reduction or an increase in the judicial fee.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker? Some irregularities are resolved.

First, there was initially a difference between the parties who gave up and the parties who were present. A missing party would always have the advantage of obtaining the lowest possible court fee, while those who were present could be condemned to a higher court fee. This, of course, was not fair, and it encouraged to let the grief go. I think this is now well resolved.

Second, the new law makes court fees due by the State – if the public prosecutor acts in civil matters or if the labour auditors act before a labour court – no longer due as soon as the State – either through the public prosecutor’s office in civil matters or through the labour auditors’ office in labour matters – acts in the public interest. Then it is no more than logical that the State cannot be condemned to a judicial compensation, even if it gets wrong. In this way, the Public Prosecutor’s Office can carry out its tasks in full independence. This must be guarded.

Third, there is a change related to disputes where there are multiple parties. From the moment that there were several parties – accusing or defending – it could come to the sum of all judicial fees. This is now being applied to pail and perk. The maximum judicial remuneration that a party receives if it gets the right is twice the maximum judicial remuneration provided for by law. In other words, whether you get right against 2 or 10 parties makes no difference. In the past, the legal compensation was paid 10 times, now it can be paid up to 2 times. That amount may be distributed among the parties to the dispute.

A fourth amendment that is important in this draft law is that the civil party who has filed a lawsuit directly before the correctional court can now also be obliged to pay not only to the defendant the judicial fee, but also to the civil liable party. This is also an improvement of the existing situation.

We have also made some adjustments and amendments to the present bill by introducing amendments. On the one hand, by an amendment of our party, a party who enjoys second-line legal assistance, in other words a pro deo client, can from now on be condemned to a maximum trial fee if it gets wrong, which is equal to the minimum trial fee. In the past, this could also be raised. In other words, the threshold for the less well-to-do lawyer is reduced, not only because he can get a pro deo lawyer, but also because he thus does not run the risk of a too high court fee to be paid if he gets wrong.

A second amendment we made with an amendment is the removal of Article 6 of the Law on Payment Delay. This law also established a certain arrangement that stipulated how a party in the default could obtain compensation. That regulation has been removed because now the legislation and this law are clear. This law should be applied and there should no longer be a parallel possibility in the Act on the payment of late trade transactions.

Mr. Speaker, Mr. Minister, colleagues, I emphasize that it is also important for our party that the Minister in the committee has also discussed the draft KB that he will take following these bills. It will also provide a solution for the judicial fees that are or are not awarded if a party before the labour court is represented by a trade union representative. I have already pointed out in the past that the system of representation by trade union representatives based on solidarity and collective calculation of costs has come to a slope. In fact, there was no possibility for a deputy to obtain a judicial fee, while there was the possibility that a trade union would be condemned to pay a judicial fee if one was wrong. Article 7 of the draft KB provides a solution to this issue. The significantly reduced rate, as applied in the social contentieux, will now also be applied in this type of labour disputes. This is also the solution to this problem.

Another point, Mr. Minister, to conclude. This is a very important and good step towards improving existing legislation. Nevertheless, we should also further urge a review of this legislation, in particular to determine the process-economic impact of this legislation with regard to the judicial fee. This was also announced in the policy note of Minister Vandeurzen in November 2008.

The word is to Mrs. Dean.

Mr. Speaker, Mr. Minister, dear colleagues, I would like to highlight first the important work that was done during the previous legislature by Justice Minister Laurette Onkelinx.

Doctrine and jurisprudence have, however, highlighted a number of imperfections that needed clarification. This is the purpose of the project that is presented to us today.

I would like to make two comments. The first concerns recipients of second-line legal aid. I agree with what has just been said by Mr. and Terwingen. We emphasized in a committee the need to adapt Article 22, paragraph 4, of the Judicial Code to the interpretation made by the Constitutional Court. The amendment to which we have just referred, and which we have co-signed, has also responded to this concern. It is now clearly specified in the text that the judge may fix the amount of the procedural compensation due by the justiciable receiving second-line legal aid only below the minimum provided by law. This interpretation was necessary with regard to the beneficiaries of legal aid who are already, by definition, in a ⁇ precarious situation. My group therefore welcomes this clarification.

In my second comment, I would like to emphasize the importance of the draft royal decree that you submitted to us as a commission and which will amend the royal decree fixing the rate of procedural compensation in relation to the compensation applicable before the labour courts. As the report to the King very correctly points out, it is known that workers suffer, before these courts, from the combination of an uncertain trial, a imbalance in the position of the parties and the fact that this imbalance, for the majority of workers, is not compensated by public intervention at the cost of their defence in court. These discomforts lead a fortiori, in the field of social litigation, to a sensitive barrier to access to justice for this category of justiciables.

Given the specific nature of the social litigation, it is planned, in the draft royal decree, to extend the amounts currently in force for the social protection litigation to all the procedures initiated before the labour courts. This is one of the requests we have been making for some time and we will ensure that it is well ⁇ ined in the upcoming royal decree.

Mr. Minister, I had already interpelled you during a previous amendment to this law and, in the same sense, we continue to advocate for the extension of the repeatability law to trade union representatives who assist the justiciable before the labour courts. If the lower compensation that is fixed at the level of labour courts meets the concerns, we do not go to the extension of the law to trade union representatives. We would therefore like this issue to be examined.

Mr. Speaker, Mr. Minister, dear colleagues, the concern of clarification and legal certainty underlying the text at the examination is shared by all and it is also unanimously that the text was adopted in a committee. My group will support this project, of course.

I will talk about my bank and I will not repeat everything my colleagues have said. This text is expected by the prosecutors and by the judicial actors, in particular lawyers.

Mr. Minister, my colleagues mentioned not only the bill but also the royal decree that you must take. Do you have an idea of when your royal decree would be ready, history to know the likely date of entry into force of the law that is linked to the royal decree. To keep the practitioners with whom we have good daily contacts informed, we would like to know when this law can come into force.

I appreciate the method that prevailed in the drafting of this project. He took into account the observations of the interested parties, there was consultation, a working group in the cabinet. This text makes unanimous and improves the rights of the justiciable in second line and before the labour court in social litigation.

To answer Mrs Nyssens, the text of the royal decree has been communicated, everything is ready, everyone knows its content. We have not yet received the opinion of the State Council on this subject and we are awaiting this opinion before finalising the royal decree which is to come into force by law. As soon as the law is passed, we will continue the procedure. It will be a matter of weeks before a government-level decision is made after the State Council’s opinion on the royal decree. We will do our best to go as quickly as possible.