Proposition 53K2463

Projet de loi modifiant le Code civil en ce qui concerne les sûretés réelles mobilières et abrogeant diverses dispositions en cette matière.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Oct. 24, 2012

Official page

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Status

Adopted

Requirement

Simple

Subjects

civil law guarantee personal property claim

Voting ¶

Voted to adopt

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

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Discussion ¶

May 29, 2013 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

Discussion of Articles

Jan. 10, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, these drafts, which are intended to regroup the provisions now spread over various laws within the Civil Code, have been created on the basis of the work of a group of specialists in the matter. The aim of the proposal is to reform, simplify and thus make the system of corporate security on movable goods more efficient.

The text is in line with the current government agreement. It states that the government will work on the drafting of new laws, including a modification of the Civil Code in the field of commercial security on movable goods, in order to ⁇ an accessible, fast and modern justice system. The text is based on the work of a working group consisting of several professors, employees of the FOD Justice, the FOD Finance and representatives of the legal profession. Opinions were collected on the texts drawn up by the experts. These have led to some adjustments. This led to the final design.

The Committee on Justice adopted the draft reforms to the current system of corporate security on movable goods on 11 December 2012. This reform leads to a more efficient credit system that can better support the development of a performance economy. The economic crisis facing Belgium underlines the importance of a well-functioning credit mechanism to finance economic operators and to stimulate employment growth. However, lending is inextricably linked to the establishment of security rights. By making those rights more effective, the costs of the loan are reduced and economic growth is reformed. Particularly with regard to the property, the Belgian legislation on collateral had to be modernised.

In particular, the texts amend the rules on the property contained in the Civil Code. From now on, it will be possible to establish a property without external ownership. Publicity is ensured by the registration in a new property register. In that regard, the basic principle, which has remained unchanged since the Civil Code of 1804, was, in fact, “pas de gage sans dépossession”: the mortgage is valid only insofar as the property placed in mortgage is taken out of the possession of the guarantor and passes into the possession of the creditor. However, the outsourcing of the debtor constitutes a source of economic inefficiency, since by depriving the debtor of the possession of the property placed in the deposit, he no longer has the means by which he could generate income and repay the credit granted to him.

In addition, the establishment of a real estate register is one of the main measures introduced by these designs. Indeed, since the debtor remains in possession of the property placed in the collateral, its publicity should be ensured by its registration in a collateral register, making it antagonistic to third parties. That register will be available fully electronically and online for registration or consultation of the properties. The order of preference of the deposit holders will then be determined according to the date of registration of the property in the register.

The establishment of the real estate register also makes it possible to include two real estate that have already been published, namely the real estate on the commercial property and the agricultural privilege. The laws relating to these two properties can therefore be repealed. In addition, as the provisions on the guarantee right are bundled into the Civil Code, this leads to a simplification of the legislative framework.

Finally, a simplified extraction procedure is introduced, which no longer requires the prior acquisition of an enforceable title. If necessary, the procedure – debtors can still turn to the seizure judge – will be centralized with the seizure judge. Debtors who are not consumers will therefore no longer have to resort to pre-judicial intervention as is now the case. The creditor will be given more freedom in the choice of the method of extraction. However, all necessary legal guarantees are provided, as the debtor remains free to invoke the intervention of the seizure judge.

The guarantor will also be obliged to appeal to the court if the debtor, in the event of non-payment, refuses to deliver the secured property. Judicial control a posteriori will always be possible in the event that the debtor would challenge the method of extraction used by the guarantor. The efficiency of the property extraction procedure is also promoted by concentrating the jurisdiction for these disputes with the seizure judge, the natural enforcement judge.

This reform is indeed fundamental. For the rest of my report, I would like to refer to the written report.

In my capacity as a rapporteur and in order to complete the report, I must inform you that in the adopted text of the bill containing business guarantees, document no. 2463/6, a technical error was made in the new article following amendment by amendment no. 23; I refer to document number. 2463 and 4.

Amendment No. 23 aims to replace the original first and second paragraphs and concerns, in particular, the replacement of the five-year period prescribed therein by a ten-year period. Paragraph 3 of this Article also mentions that period, but the period of five years remains there, while the new period of ten years must also be introduced here. That is a technical correction that I would like to communicate to you here and which can be made following the report, published here in the plenary session.

Finally, I would like to speak briefly on behalf of Open Vld.

I am pleased that our colleagues have followed us in the amendment made by our group. As a result, several additional provisions were introduced that lead to better protection for subcontractors, unpaid sellers and the seller who holds a privilege.

Nor are we blind to the additional costs that would be associated with a renewal of the registration of the property after five years. Therefore, the aforementioned ten-year period has been introduced.

Finally, in consultation with you and your Cabinet, we have been eager to provide for a sufficiently long implementation period so that those who are required to apply the regulation on the ground can adequately prepare themselves for this enormous new regulation.

Mr. Speaker, Mrs. Minister, dear colleagues, the bill we are going to vote today attacks one of the oldest institutions of the Code Napoleon: the pledge. This security mechanism has fallen into such obsolescence that only law school students are still facing it. To modernize this two centuries-old institution, it would have been necessary to gather, under the guidance of Professor Dirix, the expertise of professors from six major universities of the Kingdom and officers of the administration – a group I would like to thank for the quality of his work.

The most fundamental measure, the most spectacular legally speaking, is the abolition of the condition of depositing the bond by the gagist debtor. This measure, which aligns our regime with that of our neighboring countries, finally meets the needs of the trade exchanges of our time. In this regard, the registry that will ensure the advertising of leases will only be effective on the condition that it is at the same time accessible and free from too heavy formalities.

Furthermore, the expert working group has not confined itself to the pledge but has truly dusted and harmonized the whole matter of real security. The disappearance of the commercial bond, the dark warrant and a series of privileges should lighten the syllabi of our aspiring lawyers.

Beyond this cleaning, the philosophy that accompanied the writing of this project must also be welcomed. The editors consolidated the case-law of the Court of Cassation on this subject while providing answers to the remaining inaccuracies for practitioners. This search for practical solutions, far from purely theoretical and dogmatic quarrels, must be emphasized, as it reduces legal uncertainty.

In addition, the PS Group welcomes the ⁇ consumer protection provisions. In such a technical matter, it is indeed imperative to ensure that citizens are not caught in commitments whose scope they would not have measured. This was a priority for the Socialist Party.

This is not the only strength ratio that the project takes into account. Thanks to the amendments submitted by the majority, SMEs will clearly be able to assess the extent of the guarantee for each of their claims.

The risk of a bad surprise for credit institutions will therefore be so limited.

Finally, by facilitating access to credit, the law will have a positive impact on our economy. However, it will be necessary to wait until its complete execution to feel all the beneficial effects. We hope that the registration of the deposit will be operational as soon as possible.

For all these reasons, my group will vote in favour of these two bills.

Mr. Speaker, in times of economic crisis, we must ⁇ stimulate companies. These two bills have to do with business security. I would like, like colleague Déom, to thank the team of professors, led by Professor Dirix, who on behalf of our department has written this important bill, very explicitly.

As some speakers have already said, the establishment of a real estate register is one of the fundamental reforms and one of the key measures in this bill. Since the debtor remains in the possession of the property placed in the pledge, its publicity should be ensured by its registration in a register, making it anti-third party.

That register will, of course, be available entirely electronically and therefore also online, for the purpose of registering the properties in it or for consulting it. Publicity is essential.

With these two draft laws, we are making a deal. We are moving towards a major, fundamental reform of a legislation that has been in place for a very long time and that should provide business security. The reform will modernize the legislation. I would love to present them to the room. After the good discussion we have had about it, with a number of majority amendments for improvement, I think we are taking an important step ahead.