Proposition 53K2692

Projet de loi modifiant diverses législations en matière de continuité des entreprises.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

March 12, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

composition bankruptcy financial solvency farmer agricultural holding company in difficulties cessation of trading

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Abstained from voting

Groen Ecolo ∉ N-VA VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.
• Olivier Maingain (MR) abstained from voting.
• Damien Thiéry (MR) abstained from voting.

Contact form ¶

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Discussion ¶

May 2, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, dear colleagues, I am co-rapporteur, together with colleague Tuybens. We divided the tasks a little. I will provide explanations on the draft law, while Mr Tuybens will take over the discussion in the committee.

There are two bills and a draft law. In chronological order: a bill by N-VA, which aims to curb the misuse, the malafide use, of the WCO, a bill by Mrs. Gerkens, of Ecolo-Groen, which aims to involve farmers exercising their professional activity as natural persons also in the WCO, and the bill of 12 March.

We learned from your explanation that the application of the law of 31 January 2009 on the continuity of enterprises was increasing in the first years. In 2012, the most recent year for which complete figures are known, there were 1,537 companies that received payment suspension under the WCO. Recent figures also show that mainly five sectors rely most on the WCO, respectively the construction sector, services to enterprises, including consultancy, but – which is curiously – also accountancy is understood, the hospitality industry, retail trade and metallurgy.

The draft law retains the basic principles of the law of 31 January 2009, but this is useful to address the various pain points that could threaten the future of the insolvency proceedings. Thus, according to you, Mrs. Minister, one cannot ignore that of the opened procedures of judicial reorganization a large percentage ends in liquidation of the legal entity or in bankruptcy.

The current economic crisis and the number of bankruptcies have demonstrated the importance of a well-functioning judicial reorganization. It provides the opportunity for ⁇ to save themselves and to help those companies whose continuity and employment are threatened. Abuse cannot be tolerated. The draft law aims to detect and punish these abuses. The current law already offers a number of opportunities to prevent abuse, but it was desirable to supplement the law.

The present draft law is the result of a thorough review. The policy cell established a working group consisting of specialists and professionals. More specifically, a list of things that will be changed will be given. There is a clarification of certain concepts. The scope of application will be extended to farmers. The procedural rules will be clarified. Technical improvements are also being made. An entry threshold of 1 000 euros will be introduced for publication, office and other costs. There will be an improvement in the prevention and detection of companies in difficulty. Access to the procedure will be improved, including through electronic files. This will enable creditors to better follow up on the file. The role of the figures specialists will be strengthened and an effort will be made to end the fraudulent practices. This should lead to improved protection of creditors and workers. It also provides for an extension of the suspension system to include partners and former partners.

This is the explanation given by the Minister in the Committee.

Mr. Tuybens, the division of tasks was such that you take the discussion in the committee for your account.

Mr. Speaker, as agreed, I will present a brief report on the general discussion. Following the introduction and hearings, Mr Pas of the Flemish Belang Group, on the basis of the number of undertakings that have been effectively suspended from payments, on the basis of the record number of corporate bankruptcies and on the basis of the percentage of undertakings that go into bankruptcy after they have invoked the law on the continuity of the undertakings – a percentage which it considers too high – stated that the law on the continuity of the undertakings is allowed to be evaluated. She points out that the bill contains a number of positive elements. It regrets that the draft law does not affect the competence of the trade courts. In its view, the powers of these courts should be broadened.

Ms Demir may, on behalf of the N-VA group, find herself in the draft law as a whole. However, she believes that the draft law is subject to improvement. She doubts that the planned minimum payment of 15 % of all debt claims is sufficient. She notes that the draft law involves additional costs, in particular the duty of 1 000 EUR collected for each entry of a petition to open a judicial reorganization procedure. She considers that it is not normal that the tax authorities and the RSZ have priority over other creditors such as SMEs. These SMEs threaten to be overlooked if they have to wait too long for the repayment of outstanding debts. Finally, it considers that the threshold for the renewed procedure is still too low and that many companies will use it too quickly.

The third of the four speakers was me. The bill guarantees a good balance and avoids competition between the different creditors. Unlike Ms. Demir, I have indicated that I was of the opinion that the RSZ and the tax authorities would not be given a privileged position. On the contrary, they are treated on an equal footing. The sp.a. group also calls for a general review of the law on the continuity of the companies and of the legislation on bankruptcies. I also wonder from which date the electronic file would apply.

The fourth and last speaker was Ms. Gerkens on behalf of the Ecolo-Groen group. She considers it important that the WCO and its impact on employees are evaluated. She also points out that her group appreciates that public creditors are placed at the same level as other creditors. She has questions on strengthening the role of practitioners of the figure professions such as accountants and on the expectations towards them.

It also emphasizes the need for multiple accountants to act at different levels. This implies administrative requirements and additional costs for the entrepreneur or the self-employed. Finally, Ms. Gerkens asks how the reflection regarding the transferred and/or dismissed workers, and among them the protected workers, was carried out.

The Minister answered all questions. It notes that undertakings in difficulty often rely on the law on the continuity of undertakings too late. It emphasizes that the expansion of the competence of the trade courts is addressed in a bill that is currently being drafted. It specifies that a review of the law should be available by the end of the year. This, of course, takes a little time because the evaluation involves not only the entrepreneurs, but also many other players such as the National Labour Council.

Regarding the electronic file, the Minister indicates that she hopes to come out with a workable proposal in 2014. The Minister acknowledges that the law does not specify how the motivation should be made and specifies that the tax office and the RSZ should be ordinary creditors when suspending payment.

When asked whether the risk is not large that the courts of commerce will interpret the law in a different way, the minister responds, finally, that it does not exclude that a further letter of circulation will be issued on this subject.

This is the end of my report.

As a member of the SP-A-Fraktion, I would like to add four points.

First, I find it important, in any case, that from now on it will be impossible to reduce employee benefits by, for example, half. This applies in particular to late wages that should have been paid before the opening of the proceedings. This is a positive measure since it is obvious that the voice of workers is not often heard when concluding a collective agreement. I thank Minister De Coninck that this is included in the bill.

Second, it is important to ask why the Law on Corporate Continuity does not contain any provision relating to the efforts that business managers and shareholders should make. I find it a little regrettable and would like to request that a certain restraint be ⁇ ined at the level of the undertakings to issue dividends and any variable wages to shareholders, respectively managers, at the moment a undertaking is in this situation. The law does not require this, but it would be good if the entrepreneurial world showed restraint here.

Third, as regards the threshold of 15 % of debt claims, in the sense that an application for derogation is submitted for that purpose, I have asked whether there is an obligation to justify. The answer is affirmative. Are there any formal requirements for this motivation obligation?

The Minister responded that there are no requirements regarding the motivation. However, I fear that some companies want to implement the law formally and not substantially so that that statement could become a legacy statement. In other words, there is a formal motivation, but not really a substantial motivation.

I think it would be good that the political world clearly gives the signal to expect a substantial motivation and not a formal fulfillment of the law. The courts could interpret this.

Finally, my group considers it important that the WCO and the Bankruptcy Act be effectively evaluated before the end of the year so that we can learn from that evaluation and know what the fulfillment is as it has arisen in practice.

I think it is crucial to draw the necessary lessons from this. If the review is completed by the end of the year, we would be able to re-evaluate the law at the beginning of next year. It would be a good thing for both employees and companies that this law has been approved and amended in this way.

Mr. Speaker, Mrs. Minister, dear colleagues, I would like to formulate some concerns and suggestions on behalf of our group.

Since the introduction of the Business Continuity Act in 2009, more than 5 000 companies have applied to it. It mainly concerns companies from the sectors of call services, hospitality, retail, metallurgy and graphic industry. The companies are spread across the country: Brussels, Antwerp, Liège, Nijvel... Importantly, 97% of the companies that applied to the WCO are small companies. Most of them have fewer than 10 employees.

The WCO was to reduce the number of bankruptcies and give viable companies a new start. Nevertheless, we find that 70% of the companies that applied to the law still go bankrupt within the year. Information from judicial circles teaches us that still a lot of companies of the 30 % companies that survive the first year will apply for bankruptcy.

In addition, we note that only in 2012 11,500 companies went bankrupt, in addition to the 1,500 that applied to the WCO. Nevertheless, we attach great importance to the relevant law and the necessary changes to give companies a second chance and thus safeguard employment.

Indeed, one of the ways to avoid bankruptcy is a reorganization of the enterprise, accompanied by a suspension of payments for a period in which creditors are unable to seize the business assets. In the past, this was done through a judicial settlement. The judge then had the opportunity to make a decision on the opportunity. The WCO does not allow that. The court must now give any reorganization an opportunity during a period in which the creditors cannot fulfill their claims.

Companies that are temporarily in trouble, giving the opportunity to make a reset is a difficult exercise. It should be taken into account that the instrument is used only by companies that really need it and who will be able to survive.

During the four years that the law exists, however, a few divestments have been established. There is a lot of improper use. For example, because of the too easy access to the WCO, it is possible that the entrepreneur of a single-person business that cannot pay his or her debts, goes to court and receives a six-month or one-year delay via the WCO. Allowing the suspension of payment to creditors would then have a side effect of a competitive disadvantage for healthy ⁇ , which in turn could come into trouble.

The scheme often leads to distortion of competition, as companies that can rely on the WCO then offer their services below the market price. We were signaled a case of a transport company that has a contract with a large multinational food group. That company loses the contract to another transport company, which had bought a number of new tricks and imposers, appealed to the WCO and obtained delayed payment, allowing it to charge the multinational 100 euros per ride per day less.

We also need to take a look at the domino effect. Debtors can suffer negative consequences of the law. Companies are putting each other in trouble. A small SME whose customers-companies rely on the WCO threatens to collapse itself. I will give an example. Four companies, suppliers for the graphics industry, have lost €11 million in a three-year period to customers who appealed to the WCO. They are threatening to destroy themselves in the long run.

Changes in the WCO are necessary. Our group has repeatedly insisted on this in Parliament and in the committee. We also made constructive proposals. Therefore, we are pleased to note that some of our suggestions and proposals have been adopted, including better disclosure of information to creditors, better leverage in the hands of judges through better files, proactive consultation of external auditors and the involvement of financial professions, the introduction of a partially electronic administrative procedure that allows better follow-up by creditors, the introduction of a threshold – even if we can discuss the amount – and attention to the staff.

On other points, however, the bill is a missed opportunity. Ultimately, it must be watched that the instrument is used by those who really need it and for whom a reset is possible. Otherwise, the medicine becomes more harmful than the disease. A number of key focus points are the minimum payment, the equality principle, access to the WCO and a better proactive corporate policy. Thus, it can be questioned whether the minimum payment of 15 % to creditors in the framework of the reorganization set out in the draft law is sufficient. In capital-intensive sectors such as the graphic industry, this can be feared.

Moreover, in Article 49, even that minimum amount of 15 % is reduced in such a way that a lower percentage is also possible.

In addition, the draft law stipulates that the debtor will not be allowed to make any voluntary payment to any creditors. This is a positive evolution because it counteracts a differentiated payment behavior. However, the RSZ and the tax authorities have been granted the status of the most beneficiary. Public creditors enjoy a general privilege which infringes the principle of equality and is detrimental to small SMEs. As colleague Demir emphasized in the committee, we fear that SMEs, as creditors, will be subject to oppression here.

More generally, we note that the access threshold remains too low in many points, keeping the door open for future abuse. In this regard, we refer to a number of vague formulations such as: “... when a part of the economic activity is threatened.” or also: “... when the continuity of the enterprise is threatened.”

We also advocate a proactive policy. In a climate where the number of failures scratches record heights, it should not be the intention to keep a terminal patient alive a little longer. We call for the problems to be addressed frontally. We therefore propose that people and resources be used to address companies in difficulty at the beginning of the business process. After all, through a number of flashlights, this can be addressed.

We need a proactive policy. In this context, we refer once again to some legal articles from the existing WCO which have not yet been implemented. However, they offer a perspective on accompanying on a scale. Very specifically, we refer here to the possible role of the Commercial Court and the Chambers for Commercial Research in a proactive counselling project. The recognition by the Countries of the actors, active in proactive corporate policy, would be a step in the right direction. The law allows this, but there must be an initiative. I have already asked a number of questions in the committee.

Ms. Minister, through its own bill and through eight amendments, which were submitted to the committee and explained by colleague Demir, our group has sought to correct a number of matters. However, we believe that this has not been sufficiently followed. For this reason, our group will abstain in the vote.

I thank you for your attention.

Mr. Speaker, Mrs. Minister, the law on continuity of enterprises came into force in 2009 under Minister De Clerck. The importance of this law can be very difficult to overestimate. The law gives companies in difficulty the opportunity to resolve their problems, so that the loss of jobs can be prevented, the financial loss of the debtors can be limited and bankruptcy can be avoided.

The WCO is clearly much more successful than its predecessor, the judicial agreement. Between 2009 and 2011, ⁇ 3,500 companies received a suspension judgment. For comparison, under the law on judicial settlement, there were only a small 1,400 settlement procedures over a period of up to 10 years. The success rate has also improved compared to the judicial settlement. In addition, almost all industries and SMEs also use the WCO. The success of the WCO can be explained, among other things, by the greater number of instruments it offers to companies in difficulty, by the flexibility of the procedure and by the low cost.

All this does not mean that there would be no pain points in the procedure. There is a lack of effective prevention. However, the faster a company becomes aware of its difficulties, the better it can react to eliminate the problems. Furthermore, we must not close our eyes to the abuses that the law could give rise to. Some entrepreneurs resort to the law to escape their creditors. The undertaking competes with the other than in an unfair manner by the advantages that the suspension of payment gives them. Another problem is the lack of court control capabilities during the suspension. Finally, there was also the problem of lack of information from creditors.

The bill presented here now provides an answer to these problems. We believe it is a balanced design that retains the spirit of the original law, but at the same time provides a solution to the key problems in the implementation of the WCO.

The design provides, first of all, for better prevention and detection of companies in difficulty. In our view, it is a good thing that the Administration of Finance must now submit to the court a list of debtors who have not paid VAT or corporate advance fee for one quarter.

The role of the numerical professions is also strengthened. They should inform the company’s governing body if they believe that a company could be in trouble and can also inform the Commercial Court.

Because access to the procedure of judicial organisation is so smooth and open, there was also a risk of abuse and distortion of competition. We must absolutely avoid healthy ⁇ from becoming victims of a court ruling that shields a business from all creditors. By increasing the cost of the proceedings and by the obligation to attach all documents to the initial petition, which also requires some of those documents to be objectivised, a proportional threshold is introduced so that the WCO can no longer be used as a means of simply escaping seizure.

In addition, the court will also be given more control capabilities, which will further prevent abuses. The court will be able to suspend them, inter alia, during the beginning of the proceedings if it turns out that the enterprise cannot be re-established.

The draft also enhances the protection of creditors by guaranteeing a minimum payment of 15 % in the restructuring plan. The problem of lack of information for creditors is also adequately addressed.

In short, CD&V is satisfied with the design presented here today. The spirit of the original law was clearly preserved and the pain points were removed. We are confident that this amended law will ensure that even more companies can be saved in the future. We will support this bill.

Mr. Speaker, Mrs. Minister, colleagues, today is here for approval a draft law that amends the legislation on the continuity of the companies on several points. It is not about a comprehensive change, but rather about punctual changes that address pain points that have emerged since the entry into force of the WCO.

Furthermore, it would be too early to propose a major revolution in legislation. The WCO is not until January 31, 2009. And let us not forget, above all, that we are talking about a legislation that has already proven in practice that it really works.

The goal of the WCO was and is to give companies in difficulty maximum opportunities to overcome problems and save the company or part of the company. Within this procedure, the company will be given various possibilities to carry out a reorganization, this is ⁇ not a dead letter. In 2011, 1,389 companies used the WCO and in 2012 there were already 1,537.

In practice, however, this legislation proved to have both advantages and disadvantages. In the first three years following its entry into force, more than 3,300 judgments were issued opening the judicial reorganization procedure. The law proved especially useful in preventing bankruptcies for companies with less than 10 employees, and then mainly in the sector of construction, services to companies, hospitality, retail and metallurgy.

The disadvantage, however, was that more and more abuses emerged, which obviously impedes the proper functioning of the law and also has a negative effect on business.

The difficulties of the original law were addressed in consultation with the various civil society organisations, so that it can be assured that the terrain with the preconceived adjustments is also involved. This is ⁇ not a detail. Finally, it is the persons concerned who must apply the present law in concrete terms. It is therefore absolutely necessary that the interventions are not merely theoretical, but that they also have a real effect in practice.

The result may be there. The law is broken down on several points. I will give a brief overview, but not want to be complete.

A discrimination found by the Constitutional Court is eliminated by extending the scope of the law to farmers engaged in their activities as natural persons. Therefore, there is no longer a distinction between agricultural companies and farmers who do not work under a corporate form.

There will be an improvement in the prevention and detection of companies in difficulty.

Access to the file will also be improved by enabling the implementation of an electronic file and thus providing better notification to creditors.

There will also be an enhanced role of the numerical specialists.

Of course, it is also important that we try to put an end to the fraudulent and inappropriate applications and that we work to improve the protection of creditors. The latter point can be accomplished, among other things, by guaranteeing in the organizational plan the minimum payment of 15 %.

The creditors will be better informed about the purpose of the reorganization, its duration and the position of other creditors. In the event of an acquisition, both the acquirer and the employees will benefit from the new scheme, as they will have more information and can be made clear in advance. Enterprises that provide services and goods to companies that follow this procedure will be better protected by the aforementioned adjustments.

The current, modified legislation can have a positive impact on the economic life in our country. If certain companies disappear because they do not have the ability to reorganize themselves, their disappearance would mean a huge loss to the competitiveness, which is still very important in the current economic climate.

I would therefore like to thank our Minister of Justice and her staff for not being deaf to the signals from practice and for strongly defending the WCO on certain points. In addition, at the government level, cooperation with the Minister of Labour was also carried out on certain aspects of this subject.

Of course, it should also be noted that the discussions in the Committee on Trade and Economic Law have gone fairly smoothly and ⁇ constructively.

My group will therefore support the present draft with full conviction. I hope the other political parties in this hemisphere will do the same.

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, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Since its existence, and such were its objectives, it must enable companies to avoid being in such difficult situations that they can only consider bankruptcy, loss of jobs and the disappearance of an activity.

An evaluation of this law was planned. The minister told us that it would actually take place.

Meanwhile, the amendments to be incorporated concerned the Collective Labour Agreement No. 102 and taking into account, in particular, the opinion of the National Labour Council. Other changes concern elements that take into account the difficulties present on the ground, certain abuses of the provisions of the Business Continuity Act committed by certain companies.

Furthermore, the major modification inserted in the bill deposited and which joins a bill that we had also made, is to allow independent farmers to benefit from these arrangements since they were excluded from them in a discriminatory manner.

It is clear that it will have to wait for this announced and expected assessment in order to be able to make further changes to this law on the continuity of companies.

However, Mrs. Minister, dear colleagues, I have allowed myself, since the committee meeting, to read the collective labour agreement and the commitments made within the consultation between the social partners (employees and trade unions), and the commitments made in compliance with this convention.

As a committee, I asked you about various provisions relating to the respect of workers’ rights and their involvement in the mechanisms that concerned them, in particular the mechanisms for the transfer of personnel. The discussion was not very intense, due to lack of time. I have also been able to use the deadline of the plenary session to reconsider the collective labour agreement.

I noticed two differences with the bill which I find important. I would like to ask you the reasons for these changes. I have submitted two amendments to correct them.

The first element relates to the obligation not to discriminate, when transferring personnel, against workers having the status of delegate. Thus, only those arguments can be used as arguments that are valid for all workers, whether for technical, economic or organizational reasons. In article 32, § 3, of your bill, it is stated: “Unless proven otherwise, non-discrimination is considered to be respected.” By adding this paragraph to the one that mentions: “differentiation is forbidden for workers’ representatives,” you seem to force the delegate to prove that the rules are not respected, while in principle this should not be his responsibility. Our amendment proposes to remove the paragraph stating “unless proven otherwise” and to simply consider that the employee’s choices should be dictated only by technical, economic or organizational reasons and executed without differentiation.

Paragraph 4 of Article 32 is also unclear. This was stated by the State Council in its opinion. By reviewing and examining it in a more detailed manner, I find, in fact, that the wording of the bill concerning the modification of the contract of a work before, during or after the transfer does not allow to strictly verify when and how the reseller can modify the contract of a transferred worker. That is why we propose an amendment according to which this possibility of changing the individual employment contract can only take place after the approval of the transfer.

Subsequently, the reseller would have the possibility to modify the employee’s contract “at the margin”, but only for technical, economic and/or organizational reasons.

In fact, it is to avoid that the retriever does not negotiate before the actual transfer and the intervention of the judge; otherwise, a relationship would already be established between a retriever, who is not yet the employer, and workers. Such a transaction, other than officialization through a judgment, would go beyond the guarantee of retaining those workers or modifying contracts only exceptionally, for clearly defined reasons.

These two clarifications are important to be included in the bill. If the purpose of the bill is to incorporate the collective labour agreement No. 102, which is the result of negotiations and agreements between the social partners, it is necessary not to allow any ambiguity to remain.

As you have taken care of this in the provisions relating to this approach and this information, involvement and compliance with employee contracts, I have no doubt that you will remain vigilant; that, like the members of Parliament, you will have the heart to clarify all terms, I am sure.

Therefore, Mr. Speaker, I submitted two amendments in the hope that, soon, we can adopt them and vote on a project that meets the worries of workers, well-legitimate in the case of transfer of companies and personnel.

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. I will not go back on this episode from the past, but a lot of hope was based on the law on business continuity.

However, we are already obliged to return the work to the profession. It is an opportunity to clarify certain concepts, extend the scope of the law to farmers, clarify procedural rules, improve prevention, access to files by creating electronic records, and try to end some abuses.

Mr. Speaker, Mrs. Minister, I will, however, attach myself to the particularities contained in the law and which I denounced at the time of its adoption.

I had also submitted amendments which had been rejected but which have somehow been reintroduced in the current project. They concern the problem of co-debiting or co-obligations, the situation of personal security and the problem of suspension of prosecution.

In a bill I submitted in July 2012, and which took on a proposal from the previous legislature, I indicated that in the arsenal of our law, the situation was at least special because the situation reserved for these co-debitors, co-debitors, spouses, personal security was quite different in the system of bankruptcy, in the law on the continuity of companies or even in the system of collective debt settlement.

Sometimes, for reasons of opportunity, certain individuals or companies did not pass the law on business continuity, preferring the law on bankruptcy, because, as a consequence, the situation of personal security was valued in a different way. It was therefore necessary to uniformise things.

Mrs. Minister, it is with satisfaction that I have seen that your bill encompasses in its entirety part of the articles I had written in 2012 and during the previous legislature. As you say, the suspension is no longer an obstacle to the voluntary payment of the suspensive claims. This was article 11 of my bill, which became article 18 of your bill. The suspension benefits the spouse or the former spouse or the legal cohabitant who is co-obligated by the effects of the law to the debts of his spouse, former spouse or legal cohabitant. But the work is put on the business only in part; in fact, in this proposal, you do not consider the situation of bankruptcies and you do not change the same regime in matters of bankruptcy, so that we still see different regimes cohabiting for guarantees, for co-debitors, whether in the law on the continuity of companies or in the law on bankruptcies. That is why, during the work, I requested that my bill be not attached, in order to be able to maintain it with regard to the bankruptcy regime.

I come to the mechanism that is created by this new law. The suspension benefits the spouse, former spouse and legal cohabitant of the debtor, who is co-obligated. What is more natural? The persons live in a couple, are cohabitants, and engage side by side, with the security key that the protection, with regard to the legal cohabitant, only applies to the person whose declaration was made within the six months preceding the introduction of the application.

On the other hand, as regards personal security, you re-introduce the so-called ordinary regime (voted by the law of 2007) in the law on continuity of enterprises, and you reasonably exclude the one that is the result of the case-law of the Constitutional Court, which resulted in emptying the guarantee contract in any way.

By emptying the warranty contract in every way, and pushing to the maximum the mechanism of excusability which in itself is praiseable, we have not measured the effects of this measure on the economy. In fact, this measure, coupled with the financial crisis, results in small ⁇ no longer being able to receive credit. The labor force that these companies bring, the strength of the people who would bring security for them, is indeed no longer a reason for bankers to grant credit, since they know that in matters of bankruptcy, these safeguards have no value.

You have rightly entered into the Business Continuity Act a scheme that refers to the ordinary scheme defined by the 2007 Act. The same should be done in the case of bankruptcy. If we allow the two systems to coexist, many bankrupt natural persons for whom persons have provided security will still avoid requesting the application of this law in order to be able to benefit for the security of a more favourable regime.

In the new arrangement, you provide – this seems to me equally legitimate – that the proceedings and the ways of enforcement are suspended at the expense of the spouse, former spouse and cohabitant who is co-obligated under a legal obligation.

I said it, I hold it, and in this you deviate from the content of the bill proposal that I had drafted: it is also appropriate that this suspension applies when these spouses, former spouses and legal cohabitants are bound under a contractual obligation. This term is not included in the current legislation.

Finally, you provide, as I did in my bill, that if it is discharged, the debtor can no longer be prosecuted by its creditors – what is more normal, it is the sanction of the system – and the spouse, former spouse, legal cohabitant of the debtor who is co-obligated to the debt of his spouse, former spouse, legal cohabitant is released from this obligation by the effect of the discharge.

This is the case, Mr. Speaker, Mrs. Minister, of a bill which, beyond a series of improvements, ultimately touches this mechanism of security, co-obligations, guarantees, approaches it rationally taking into account the law of 2007, but which further discovers and endangers the current system resulting from the application of the law on bankruptcies.

The CDH will then vote in favour of your bill by inviting you to submit the work on the trade in relation to the bankruptcy law.

The Law on the Continuity of Enterprises, dated 31 January 2009, has always seen an increasing number of applications during the first three years of its existence. In 2012, the most recent year we have a complete overview of, there were 1537 granted suspensions in the WCO. We can therefore say that this legislation responds to a clear need of the economy.

Recent figures show that the top 5 of the sectors most reliant on the WCO are the construction sector, enterprise services, hospitality, retail and metallurgy.

However, it was also useful, several years after the introduction of the law on the continuity of undertakings, to resolve already the various pain points that could threaten the future of that insolvency procedure. Thus, we should not ignore that in open judicial reorganization proceedings, excluding the out-of-court amicable agreements, a large percentage ends in liquidation of the legal entity or bankruptcy of the merchant, which should be avoided as far as possible, but respecting the actors on the ground and the interests of the other creditors.

This bill therefore aims to make adjustments and improvements, where necessary, in order to make the 2009 Law on Business Continuity more efficient and efficient.

The economic crisis we are facing and the number of bankruptcies we know have recalled the importance of the proper functioning of the judicial reorganization, which helps to save companies whose continuity is threatened, and thus to safeguard jobs and resources.

As mentioned earlier, the draft law does not affect the fundamental principles of the said law, as the basic principles retain all their relevance. This is especially true at a time when ⁇ ining companies and their deployment are at the heart of all concerns.

Saving a company or part of it can be a global positive for the economy. The management of the enterprise will be adjusted in the context of the reorganization so that the enterprise will be able to participate in the economic life with better opportunities.

The disappearance of enterprises can mean the loss of valuable entities, which could only be re-established if heavy investments were made.

It is necessary to ensure that the system is not crossed by specific laws or practices that destroy the rights of creditors and interfere with the logic of continuity.

Abuse cannot be tolerated. The project aims, in particular, to facilitate the discovery and punishment of abuses. The law, of course, already allows to exclude some abuses, but it has appeared useful to supplement it. The project tries to do so without stifling rescue attempts by excess regulation.

The proposed adjustments should also ensure that there is less fail-out to the supply companies of companies that rely on the WCO globally.

More specifically, the draft proposal presented to you today aims, among other things, to clarify certain concepts, to extend the scope of the law to farmers, in order not to create a distinction between agricultural companies and farmers, to clarify certain procedural rules, to improve prevention, to improve the detection of companies in difficulty – a number of colleagues have already talked about this – and to improve access to the file through the implementation of an electronic file, which ensures a better notification of creditors. Furthermore, the draft aims to strengthen the role of the figures specialists, to try to end fraudulent and inappropriate applications, to improve the protection of creditors, including employees, and to extend the suspension system to partners and ex-partners, as provided by the bankruptcy legislation.

Of course, the reasons must be relevant and motivated, and the link between any derogation and the maintenance of the undertaking should be sufficiently clear. There is also an adaptation of Article 61 as a result of the approval of the collective agreement number 102. The amendment improves readability and allows to avoid conflicts and divergent interpretations between the law and the collective agreement.

The part of the draft which relates to the rights of workers fits within the judicial organization through the transfer under judicial authority. It also regulates the fate of the participating bodies of the undertakings in such cases. I would also like to emphasize that we have worked closely with Minister of Labour, Monica De Coninck, for that chapter of the bill, and that it also takes in particular account of the recommendations of the NAR in its Opinion 1779 of 5 October 2011.

I am delighted because the bill that is submitted to you today was adopted in a committee on March 26 and April 16, which will allow the law on the continuity of business, as adjusted, to be implemented as soon as possible and therefore, to ⁇ the objectives that are its own.

As regards the amendments made, they are, on the one hand, technical, in particular those relating to translation, jurisprudence and cross-references, and, on the other hand, substantial, in particular concerning the intervention of figures professionals and the accounting documents to be produced by the debtor.

I think that with the proposed draft law on the continuity of enterprises, we will provide companies in difficulty due to the economic crisis with adapted legislation to ensure that they can be saved before they finally go into bankruptcy.

The law has proved its services. With this adjustment, I am confident that we will be able to offer even more opportunities and, in particular, identify companies in difficulty even faster.

Do you want to talk about the amendments?

I presented them in my speech. That said, the Minister considers them as technical. Of course, an amendment always allows to correct this aspect of a text. From the moment when the article concerning the possible modification of the employee’s contract on the occasion of the transfer of the employee’s contract allows, as drafted, three interpretations, I consider that at least, even to refuse my amendment, you could have specified what is the correct interpretation. Is there a prior negotiation between employees and recruiting candidates? Are these negotiations having effect only after the entry into force of the Decision? Or is it an option designed to frame the transfers as much as possible during the trial? I believe that the least thing would be that you responded to the amendments and the intentions they contain. Similarly, is the denunciation of discrimination required by the worker himself, who should therefore prove it?

I am not familiar with the committees you participate in. I have participated in several projects in the Committee on Justice and Commercial Law. It is always very difficult to get answers to the questions we ask you. I consider that this is not normal; the work requires a minimum of interaction between ministers and parliamentarians.