Proposition 53K1714

Projet de loi transposant la directive 2009/44/CE du Parlement européen et du Conseil du 6 mai 2009 modifiant la directive 98/26/CE concernant le caractère définitif du règlement dans les systèmes de paiement et de règlement des opérations sur titres et la directive 2002/47/CE concernant les contrats de garantie financière, en ce qui concerne les systèmes liés et les créances privées.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Aug. 29, 2011

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive bankruptcy financial instrument financial solvency financial transaction financial legislation guarantee

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Voted to reject

VB

Abstained from voting

∉ N-VA LDD

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

Sept. 13, 2011 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, as regards the transposition of this Directive, which is an important modernisation of the financial security agreements, I would like to refer to the written report on the committee’s work on this subject.

There is no registered speaker, but since you ask for it, I give you the word, Mrs. Wouters.

Mr. Speaker, Mr. Minister, dear colleagues, my discussion on this bill focuses on two points.

The first point is the transposition of Directive 2002/47/EC on financial security contracts. This Directive governs the assignment of collateral for collateral in respect of financial instruments, accounts, funds and bank claims. The policy area of the Belgian legislature is quite strictly delimited. We held a fairly technical discussion in the committee with the minister on the formless silent seizure and silent cession to secure debt claims according to the Civil Code.

N-VA asks itself whether this bill correctly transposes the directive by falling back into the Civil Code. In fact, the Directive concerns the provision of these collateral by means of a durable medium to avoid the risk of fraud. The example of other countries teaches us that silent imprisonment and silent assignment are registered there.

I will not repeat this discussion here. I would like to refer to the report.

As a second point, I would like to take a closer look at amendments 5 and 6. These amendments comply with the judgment of the Constitutional Court of November 2008. I regret very much that amendments had to be submitted during the meeting in order to comply with a judgment that is more than two years old. The proposers of the amendments apparently wanted the government to avoid the advice of the State Council. They also prevented the parties who did not sign the amendment from being given the necessary time to thoroughly review and evaluate the text in the committee. This method is not serious. The ruling of the Constitutional Court was, by the way, almost unanimously criticized by the Dutch-speaking and French-speaking legal doctrine.

Through the fifth and sixth amendments, natural persons who are not traders, say the ordinary consumer, are excluded from conventional debt settlement through netting agreements and associated techniques after merger. They fall back to the common law. It is shown here that this is in the interest of the ordinary man.

The Court considers that the Financial Security Act relates to wealthy persons, or at least to persons holding securities, and therefore that the application of the netting agreements to natural persons is disproportionate to the purpose of that law. The Court follows the arguments developed by the Wallonian Government.

In our view, the ordinary consumer, the natural person, also benefits from the fact that his debt claim to, for example, a bank serves as security of the debt claim of the bank to its client. Remember the financial crisis of 2009. During this crisis, people were afraid that they would lose their savings in the bank while they would have to continue to repay their loan in the same bank. These “ordinary people” rightly expect that if this bank would remain in default, they would be able to compensate for the remaining amount of the loan with the savings they still have credited from that same bank.

Both claims are intended to provide security for each other. The opposite is of course also true. If the client is unable to repay his loan, the banks through netting agreements stipulate that the loan may be compensated with the customer’s savings. This, in my opinion, has nothing to do with whether the client is rich or poor, as the Constitutional Court presupposes. Both can take out loans but the rich can usually make it easier because they can offer more collateral.

The draft law deprives financial institutions of the possibility of contractually linking the loans and savings without there being a link that corresponds to the economic reality of the relationship between both parties.

Is this in the interest of the ordinary man? Maybe not. The less collateral a bank receives, the greater the risk it risks not to be able to recover the borrowed amount in the event of default.

A higher risk usually – or normally – results in a higher interest rate, insofar as the loan is not refused. Higher interest rates hinder economic activity. In my opinion, one of the objectives of the law was financial security, however, to stimulate that economic growth.

A second objective of the Financial Security Act was to promote financial stability. The cause of today’s financial crisis is liked to be laid to the banks. They are the culprits of the current economic misfortune.

What is less conscious, however, is that the cause of the financial crisis was not in the banks, but in an American social policy aimed at facilitating housing loans to disadvantaged. In doing so, mortgage loans were allowed or insured, which could never be repaid.

America, through Fannie Mae and Freddie Mac and the creativity of its financial sector, has therefore managed to export these problematic debts to the rest of the world.

When we exclude the application of these net clearing agreements after merger on behalf of natural persons such as you and me, the banks are deprived of a security. Is this an improvement in financial stability?

Financial stability can only be achieved when everyone pays off their debts properly. It is the responsibility of the creditor and the debtor to limit the risk of default. Insurance is part of that.

In that sense, the choice made by the majority here in order to prevent the elaboration of the post-consolidation netting agreements under those natural persons does not, in our view, meet the second objective of the Financial Security Act.

By excluding the development of these netting agreements after merger by natural persons who are not traders, we have a bric-à-brac legislation that is built from one exception to another.

Net clearance agreements are already an exception to the general rule. As a general rule, after merger, no debt settlement can take place. And now we are going to make another exception here, namely for natural persons who are not traders.

As regards the ordinary consumer, we will therefore return to the general rule and jurisprudence that accepts the typical banking terms of unit account and compensation terms.

Mr. Minister, we assume that the present bill will not change the aforementioned situation.

Instead of providing for an exception, a much better solution is, in our view, to strengthen the security function of the statutory debt equation in general, as is the case in Dutch law.

Rather, the reason why we advocate a generalization of the debt balance after a consolidation is that the possibility of compensation by all big banks is currently always unilaterally conditioned in the bank’s favor. The possibility of compensation does not apply if a bank would remain in default.

So people are indeed rightly afraid that they will continue to repay their loans and they may lose their savings.

Mr. Minister, I know that you will now argue that we still have our deposit protection. The Belgian State, with a consolidated gross public debt of EUR 458 billion or a debt rate of almost 100% of the gross national product, will guarantee the amount of EUR 200 billion on the savings books.

On the economic level, of course, we can also ask ourselves whether the aforementioned savings benefits do not rather guarantee the financing of the state debt. However, this is mentioned on the side.

However, the deposit protection up to EUR 100 000 per person is applied after legal or conventional comparison. For the purpose of determining the amount of the claims eligible for reimbursement under the aforementioned deposit protection scheme, all claims of the same client on the same credit institution shall be drawn up after legal or conventional comparison with the debts of the client concerned.

It is therefore not at all logical that precisely the agreements after merger under natural persons should not have effect, if the Special Protection Fund intervenes only after the conventional debt settlement.

Colleagues, you notice that not only the clients but also the banks and the Belgian State have an interest in the possibility that a debt settlement can take place after the merger. In this way, the security function of the debt balance is strengthened.

We are inspired in this regard by Dutch law, where the general rule is that the legal debt settlement takes place if, of course, the debts and the debt claims that have arisen mutually have arisen before the declaration of bankruptcy.

As a final argument, we also refer to the European Insolvency Regulation, because not only in the Netherlands, which we have already referred to, but also in Germany and Britain, there is usually a legal extension to allow the possibility of debt settlement after merger. In Belgian law, like in France, there is a prohibition.

The European Insolvency Regulation provides that in an insolvency proceedings in Belgium the debt settlement must be accepted even after merger if the law applicable to the debt claim of the insolvent person allows it. The parties in the committee who supported this amendment here again create a new discrimination of domestic creditors versus foreign creditors.

We can therefore conclude that from a more general view of the economic security function in the context of the debt equation, it would have been better that the debt equation would be regulated after merger.

In our view, it has a number of advantages. Consumers may be able to borrow cheaper. This could stimulate economic growth. Financial stability would be promoted. Consumers are better protected against standard contracts in which banks conventionally condition the debt settlement only in their favour. The risk that the State assumes to protect the deposits of the ordinary saver could be reduced. The domestic creditors are placed on an equal footing with regard to the Dutch, German and British creditors, who can invoke debt settlement after merger.

For all of these reasons, the N-VA group therefore refrains, in particular as regards the way in which the amendments to the Finality Directive and the Financial Security Directive were transposed into Belgian law.

I have no more registered members. The word is for mr. The Minister .

I would like to thank Ms. Wouters for her commitment to the design. We had long discussions at the committee meeting. I refer to the report. I also thank her associate, Mr. Rombouts I thought, for a very long questionnaire.