Proposition 53K3076

Projet de loi modifiant le Code judiciaire et la loi du 2 août 2002 concernant la lutte contre le retard de paiement dans les transactions commerciales en vue d'attribuer dans diverses matières la compétence au juge naturel.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Oct. 16, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

payment commercial law commercial transaction judicial power

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

∉ N-VA LDD VB

Abstained from voting

Groen Ecolo

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.
• Bernard Clerfayt (MR) abstained from voting.
• Olivier Maingain (MR) abstained from voting.

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Discussion ¶

Jan. 30, 2014 | Plenary session (Chamber of representatives)

Full source

The Minister of Justice is not present, but the Government is represented.

I will first report and then clarify the position of my group.

At the beginning of the discussion of this bill, the Minister of Justice stated that the background is the same as when the law on the independent management of the judicial organization was introduced. The draft uses as a force line that disputes should, to the extent possible, be submitted to the appropriate court in order to obtain a quick and quality decision. The specialization of the courts should therefore improve the quality of the decisions. This initiative was supported by the whole committee.

The result of the bill is that the competence criteria must be clearly and clearly formulated in the law in order to ⁇ that goal. The draft law therefore aims to ensure that all disputes of a commercial nature relating to undertakings, regardless of the amount of the dispute, are submitted to the Commercial Court.

The proposed reform regarding the powers of the police court was deleted as no agreement was reached.

Therefore, changes were made to the powers of the Commercial Court and the Peace Court.

A number of legislative proposals were also added, including the introduction of the accelerated recovery procedure, submitted by the Flemish Interest Group. I think Mr. Schoofs will give an explanation on this later.

Mrs Becq of the CD&V group also added a bill amending the Judicial Code as regards the court competent to take notice of claims of utility companies. Both groups explained these proposals. They were also discussed.

Essential to Ms. Becq’s proposal is that this was converted into an amendment, in which the institution aims to establish the compulsory and unique territorial jurisdiction rule that claims brought by utilities to obtain a certain sum of money must always be brought before the peacekeeper of the place of residence of the defendant.

All groups took the word in the discussions in the committee. The whole was adopted with nine votes for and four votes against.

Let me now go to the position of our group.

We believe that the fundamental principles of this bill, in particular greater efficiency and better judicial administration for the citizen, are praiseworthy and should be supported. However, we have serious questions about the feasibility of the proposed changes. In fact, it would be intended to bring also smaller disputes of a commercial nature before the Commercial Court, a specialized court.

During the committee meetings, figures were discussed. A workload measurement would have been in place for this topic. According to the minister, it would be a small number of cases, with which the minister made clear that the courts of commerce do not have to worry because there would not really be a workload transferred from the peace court. One can, of course, ask himself why one makes a change, if it is only a small number of cases.

Is it really a small number of cases? This was discussed, especially on the field. We also received recent figures. I will give an example. In 2013, on average 26 % of disputes in the Turnhout district peacekeeping courts both parties had a company number. In the proposal presented now, these cases would be handled by the Commercial Court of Turnhout. Therefore, I do not think that we can say that it is a small number. Among other things, the present bill has caused a lot of reactions from the field. If there is no demand from the base, is it a good decision by the government to impose that measure?

We also ask ourselves serious questions in the appeal procedure for such disputes. An appeal would no longer be possible for a claim between EUR 1 240 and EUR 1 860. Does this not create an inequality between the entrepreneur who is involved in a small dispute and would not have the possibility of appeal, and the natural person who would still have the possibility of appeal?

We support the proposal of Mr Becq. We also supported the amendment in the committee. With the proposal of the CD&V group, the peacekeeper will be able to provide protection to consumers who do not always know what is written in the small letters of utility companies. In case of default or recovery, it is the peace judge of the place of residence of the consumer, the defendant, who becomes competent.

Mr. Becq, it may be a pity that your proposal is linked to the present draft. We have supported you in the committee, but we cannot approve the bill.

Mr. Speaker, Mrs. Minister, colleagues, as already stated, the draft is primarily about a different allocation of powers to the courts. There have been attempts to provide for the resolution of disputes in a faster and qualitatively better way. The disputes will go to what is called the natural court, being the judge specialized in dealing with such cases.

These are disputes between companies and individuals and between companies. In any case, they are always transferred to the Commercial Court, regardless of the legal action. Initially, the draft also provided for the transfer of disputes from the correctional court to the police court. However, this was not implemented, among other things because in the committee several parties pointed out a number of concrete difficulties. Therefore, this track was not preserved.

The transfer of the powers of peace courts to trade courts has received a lot of criticism from the magistrates. For the sake of clarity: the High Council for Justice has given a positive advice regarding the removal, but noted the possible consequences for the Court of Commerce.

Like other parties, CD&V has asked the Minister what the concrete impact will be of the transfer of cases to the Court of Commerce. The Minister has partially relativized the increase in workload. For some 10 to 15 000 additional cases, two-thirds of cases, it would be about sentences of suspension.

In any case, we find it important that there is coherence in the allocation of cases to the courts. In this sense, we support the present draft. Nevertheless, we ask the Minister to maintain alertness to watch over the possible additional workload for the courts of commerce.

We must also not forget that a number of reforms have already been carried out, including with regard to the peace judge and within the framework of the family courts, where we have always pointed out the importance of those changes, but also have expressly requested that the possible increase in workload that this entails be closely monitored, so that an adequate response can also be given when this occurs.

We also had criticism, but it was not a breakpoint for us, on the fact that this draft applies the principle that the court of commerce is for companies and companies, with the exception of companies established by lawyers, notaries and court enforcers. Formally-legally, this is indeed an argument, but we wonder what the difference is with companies of other free professions. A company of lawyers or a company of dentists, it is not always clear to us why a different treatment before the court is necessary. Again, that was not a breakpoint for us.

I am glad that we have been able to attach our bill, which was signed by all democratic parties, here as an amendment, because this was a way for us to realize something.

Our proposal is that all appeals or claims from the disputes relating to the non-payment of bills for utilities such as gas, electricity, water, and for electronic communications or broadcasting, such as for GSM and television — unpaid bills may also have to do with the non-performance of services — go to the peace court of the place of residence of the consumer, regardless of the amount. This leads to the spread of such cases among the peacekeepers. It also provides additional protection for the consumer, who can then be tried in his own region and does not have to go to the other side of the language border because this, in small letters, is printed on the company’s invoice.

In this way, people who are not mouthless can appear near their home before the court without having to move. They can then follow their case in a language they understand. At the same time, the peace judge has a view on the matters involved, and is not only a peace judge but also a true protective judge.

We will give our approval at the vote, but I understand that this will not happen unanimously. I remember, however, that the part that corresponds to the bill on the consumer invoice could, as it were, be approved unanimously.

Mr. Speaker, Mrs. Minister, dear colleagues, the purpose of this bill is to transfer competences from one court to another, this other court being reasonably more capable of resolving conflicts by a quality decision made within a short period of time. This is called the natural judge of these conflicts.

Initially, the project was divided into two parts. On the one hand, all commercial disputes between merchants fall within the jurisdiction of the commercial court, regardless of the amount of the dispute. The Peace Judge can therefore only intervene for amounts less than 1 860 euros. On the other hand, based on the fact that the police court has acquired unquestionable know-how in the field of personal damage, the draft extends this competence by allowing the police court referred to by a decision of the correctional court to determine the amount of personal damage and related material damage. This is a faculty given to the correctional court. He can always work and decide on this subject himself.

From the beginning, the MR indicated that he did not fully adhere to these two sides. However, with regard to the exclusive jurisdiction of the commercial court for disputes between merchants, a certain consistency makes this novelty understandable and acceptable. The Commercial Court has in fact all the instruments allowing it to identify ⁇ companies that are in difficulty and therefore, the debtors that could go bankrupt.

We can all the more finally adhere to this first part of the project as the project supported by Minister Laruelle on the summary procedure of payment injunction is on the right track. In our mind, this device will adequately complement the device we are talking about today.

Between merchants, certain claims, regardless of their amount, may be the subject of an accelerated procedure before the natural judge, therefore, tomorrow, before the commercial court. On the other hand, the second part has been the subject of, in commission, both by the MR and by other parties, majority and opposition confused, many criticisms.

I was therefore given the opportunity to emphasize that there was no reliable statistics to say that police judges have time to calculate bodily damage in the files that the courts of first instance would send them. On the contrary, at present, the police prosecutors are forced to classify numerous cases without succession, because there is no longer room for fixing hearings.

According to my information, in Liège, it is records of accidents with wounded who are thus classified without succession; only records of accidents under the influence of alcohol, crimes of escape or fatal consequences are fixed.

Furthermore, the police judge is not the natural judge of the determination of bodily damage. Indeed, since the Napoleonic codifications, it has always been the court of first instance. In addition, this court is the only one competent to know accidents resulting in bodily damage in all matters that are not related to a road traffic accident.

Finally, as indicated by avocats.be, at a time when the legislator is attentive to the victim finds its rightful place in the criminal debate, it was contradictory to refer the question, which for the victim is often the most important, to another jurisdiction than that which must know of the guilt of the perpetrator of the damage that is thus inflicted on the victim and decide on the punishment to be imposed on him.

In the face of all these arguments, this idea has thus gone to the trap. And we congratulate ourselves.

The MR also welcomes the fact that disputes between individuals and public companies are now within the jurisdiction of the peacekeepers, regardless of the amount. When the action is brought by the public undertaking, the jurisdiction ratione loci, that is, on the territory, will be determined by the domicile of the defendant, the person brought before the court by the said undertaking.

This transfer of competence seems to me to be a positive step in the context of fighting poverty. The judge of peace, the judge of proximity, is undoubtedly the judge most apt to handle these conflicts that are usually resolved through terms and deadlines. These terms and deadlines are more likely to be asked if the defendant must go to the peacekeeper of his domicile rather than, as is usually the case, the place where the public enterprise is established, often in a large city located in another province, or even at the other end of the country.

Therefore, this project is broken down in a few major traits. The MR will vote unanimously while, of course, waiting for this arrangement to be completed by the completion of the project relating to the summary procedure of payment order.

Mr. Speaker, briefly, I will first say to Mrs. Marghem that I agree with her speech. This doesn’t happen often, Madame Marghem. However, unlike you, I will abstain, as well as my group, given, in particular, the criticisms you make.

This project is intended, or at least originally was intended, to assign new powers to the Police Court and the Commercial Court rather than the Correctional Court.

It is true that in the committee, members of the majority and the opposition asked many questions, especially about the philosophy of the project itself. Many interpret this somewhat as a model of preliminary questions, but in reverse, therefore without the advantage of consistency and the desire for greater homogeneity in decisions.

It is referred to courts which are considered, quite subjectively, as the most competent, without any real other justification. We discussed this a lot.

We also ask ourselves other questions, which have already been mentioned by Ms. Marghem, on the consequences in terms of workload, the organization of the courts, the organization for the staff, on the cost of the measure of course, and finally on the coherence with the reform of the judicial districts, which was voted a few months ago already and which will gradually come into place.

I must also admit that the draft was so poorly prepared that the question, in particular, of appealing a decision taken by the police court at the request of the correctional court had not even been considered. Fortunately, these questions were raised in the committee, with the consequence that this aspect of the project was removed.

In addition to these elements, a proposal of which we were co-signers, which gives jurisdiction to the Peace Judge for disputes between public utility companies and consumers, regardless of the amount, was attached to this discussion. We support this proposal because we consider that this is indeed a natural competence of the peace judge.

To summarize, we support the second element, but not the first. That is why, ⁇ in a way incomprehensible from the outside, we will have to abstain. I thank you.

I am pleased that the Minister of Justice has returned. We are sometimes somewhat difficult commissioners, not always satisfied with what is happening and always asking for explanations. In this case, we all had the opportunity to say all the good that we thought of the text that is proposed to us, and that, for various reasons.

The first aspect is interesting, inasmuch as it aims at simplifying the rules of jurisdiction before the Commercial Court. These are always very difficult questions for law students, when they pass their exams, but it is also difficult sometimes for the justiciables to find themselves in this maquis, to know who is competent. Today, the Commercial Court will be competent for all non-commercial acts – now referred to as “company acts” – regardless of the amount of the dispute. The Court of Commerce becomes the natural judge of the companies. This is a good thing!

I will, however, issue a very small blame because a distinction has been made for legal professions, even organized in a company, on the grounds that these are included in the Judicial Code and that this justifies that it is still the court of first instance or the new district court that remain competent. This is not the most difficult thing to understand in the fatras of our laws of procedures or competence.

We can also rejoice over this text because, for once, Mrs. Minister, – this does not happen every day or frequently – you have agreed to remove an element of this text that obviously posed a real problem, a concern for practitioners. There are a few in the committee. It was this desire to give the police court a jurisdiction relating to civil interests following a criminal conviction by the correctional court. We have been able to convince you, as well as your office, of the dangerousness, or even the ineptitude, of this text that has been removed. This is a great thing.

Finally, I come to another reason to rejoice, which is a little more personal. Ms. Becq, Mr. Van Hecke and I had signed a bill that was taken back in the form of amendments to this text and will, I think, facilitate simplification, understanding and above all a real fight against precariousness. The judiciary can play a role in this matter. By deciding to entrust to the peace judge of the domicile of the defendant all the procedures of recovery, regardless of the amount, in matters of gas, electricity, water, telephone, internet or radio, we bring the justiciable closer to its natural judge who is the peace judge.

This is a very positive measure that will disengage the courts where, usually, large companies or companies used to gather their litigation. It gives the peace judge the capacity, given that he knows the socio-economic context of his canton, to assess – often, it will be a debtor he already knows – how the terms and deadlines often granted in these matters can be determined so that they can be followed and effective. It is also to add to this judge of proximity, besides his competences in particular in terms of lease leases, which ultimately concerns the portfolio of the justiciable; it is for this reason that I say that justice will have its word to say in the fight against precariousness. Indeed, the Peace Judge will be able to quickly direct the said justifiable to the debt mediation services of his CPAS, or even private individuals. Everyone will surely win, even creditors who will surely see interest in it.

This will also avoid the number of default judgments issued by magistrates to whom the defendant does not belong due to the place of his domicile. The defendant does not appear, does not claim the rights he could claim, does not succeed in reducing his invoice, is seen, because he was absent, mean the judgment, necessarily executed. This automatically leads to additional costs that, for a large part and provided that the debtor is of good faith, will be avoided in the future. This, I think, is an excellent thing.

These are the reasons why many will be those who will vote for this text, even though some will prefer to abstain, which is a bit of a shame. But it is true that the aforementioned text is somewhat dirty and that some find it to drink and eat.

That being said, I would like to repeat that this is overall a good text that we welcome. This text could be supplemented by the amendment introduced through our bill, which follows discussions we had about the jurisdiction of the family and youth court. At the time, we had said that this might not be the perfect time to add this skill to the peacekeeper. This is done today. This is a great thing. We will therefore vote on this text, Mrs. Minister, with great enthusiasm.

Mr. Speaker, Ladies Ministers, Mr. Secretary of State, I also thank the Rapporteur, Mrs. Dumery.

First of all, I would like to point out the regrettable fact that the government did not consider it necessary to say even one word about the Flemish Interest bill linked to the Minister’s bill. This proves how deep the level of parliamentary democracy can sink slowly by the cordon sanitaire. A bill of CD&V was added to the agenda in extremis, almost in the session itself, and was commented, but the bill of the Flemish Interest was simply overlooked.

Mrs. Becq, for that reason I was extremely upset when you said here on the floor that the democratic parties have passed this law. I ⁇ ’t have to feel concerned, but in this case so. After all, I am also democratically elected, just like my colleagues in my group and like all my colleagues in the hemisphere. It is of course part of your free expression to regard us as undemocratic.

Mrs. Becq, I would like to put the points on the i for you and for the entire half-course legally. You are also a lawyer and you will ⁇ agree with me that justice is a source of law.

I refer to the annual report of the Permanent National Culture Pact Commission of 2012, the case-law therefore. Article 3, paragraph 1, paragraph 1 of the Cultural Pact Act states that applicants may lodge complaints with the Standing Committee if they identify themselves with the principles and rules of democracy, i.e. if they observe them. Well, the complaints of the Flemish Interest have remained in the process for four years due to the lack of a court ruling on the status of our party, thus on whether or not we could be called democratic within the meaning of Article 3, 1st.

Eventually, a decision was made. I would like to communicate this from the speech stand, and I would like to take advantage of that opportunity. This is the judgment no. 213 879 of the State Council of 15 June 2011, in which applicants against the Flemish Interest – applicants who wanted to classify us as an undemocratic party – were rejected. I will give you the names of those who at that time acted against our party. Initially, let me say in first instance, before the elections, were Philippe De Coene, Francis Delpérée, Thierry Giet, Jean-François Istasse, Karine Lalieux, Philippe Mahoux, Geert Lambert, Myriam Vanlerberghe, Daniel Bacquelaine and Christine Defraigne. The proceedings were subsequently taken over and resumed by Johan Vande Lanotte, Freya Piryns, André Frédéric, Daniel Bacquelaine, François Bellot, Zoé Genot, Joseph George, Ahmed Laaouej, Karine Lalieux and Philippe Mahoux. There was no single CD&V’er therefore it is regrettable, Mrs Becq, that you are speaking today, after the jurisprudence has been established, about democratic and undemocratic parties, which makes me feel addressed.

In any case, the judgment of the Council of State on the dispute over the Flemish Interest reads as follows: “The statements laced in that description are sharp and polemical and testify in no way of a great sense of subtlety and nuance. As such, they can feed an animosity between certain segments of society and contribute to a polarization and a climate of intolerance in the long run.”

Nevertheless, the State Council was of the opinion that we were not seeking an infringement. I would like to agree with the Council. Our party is provoking. We are provoking and we are provoking the opponents. It is not our intention to raise populations against each other or to create a climate of intolerance. It is simply our intention to express our opinion, in a way that may provoke others. We do it indeed.

However, the Council of State does not see in our position any violation of the fundamental principles of our rule of law and of our democracy. So you can continue to call me and my party undemocratic. This is free expression, I give you. As a lawyer, you must remain intellectually honest.

It is said that there would be no subtlety and nuance at all, but rather a climate of polarization, so I refer to the other parties in the hemisphere who continue to feed the polarization against our party as well. I would also like to point out the trade unions that also continue to fuel polarization, although we also recognize the role of the trade unions in society.

What happened in the meantime? Mr. Giet, who supported the original claim, has become a judge at the Constitutional Court. So do not begin to blame me for intolerance and an undemocratic attitude. All of you keep them by yourself. The cordon sanitary is another type of intolerance, which should also be noted.

Therefore, it was very regrettable that the employee of the minister, whom I personally do not blame – it is the counselor of the Court of Cassation, who would have known better if he had been sufficiently informed in advance – did not even get the opportunity to comment on a bill of the Flemish Interest. He may be able to listen to the Council of State, where he will hear another clock sound.

In any case, I can and want to be very brief about this bill. I will not make too many words of rubbish.

We had a detailed bill, which was aimed at one specific element, just like your bill, Mrs. Becq, which was commented on. Our bill was simply aimed at speeding up and simplifying a certain procedure for late payment. Apparently, our proposal could not be discussed in the context of the treatment of the whole draft law of the Minister.

As to whether this bill is useful or necessary, I have my doubts. When it comes to whether the design is logical, I have even more my doubts.

I read the title shortly before: “Draft Bill amending the Judicial Code, the previous title of the Code of Criminal Procedure and the Act of 2 August 2002 on combating late payment in commercial transactions with a view to conferring jurisdiction on the natural court in a number of matters”. Now I wonder whether the judge who judged all these cases for decades was the “unnatural judge.” Is there such a thing, an unnatural judge? I honestly think not. The child just needs to have a name and certain shifts must be made.

When I hear the criticism of my colleagues, and ⁇ that of the judicial world itself, I think that this design is just a blow to the water. I don’t think it will contribute anything to accelerate procedures or catch backwardness. Grosso modo, therefore, I agree with the critical voices, especially from the judicial world.

I would like to quote a quote from all that has been said and written about this bill. It’s a beautiful quote: “If it ain’t broken, don’t fix it.” That is what you want to do. That was a rake quote in the debates. However, you want to fix something here that actually doesn’t work out. So it is simple.

Furthermore, I can only say that I will no longer waste words on it, just as apparently no attention is paid to proposals from Vlaams Belang. I can say with confidence that we will vote against.