Proposition 53K3423

Projet de loi portant insertion du Livre XIV "Pratiques du marché et protection du consommateur relatives aux personnes exerçant une profession libérale" dans le Code de droit économique et portant insertion des définitions propres au livre XIV, et des dispositions d'application au livre XIV, dans les livres I et XV du Code de droit économique.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

March 5, 2014

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive consumer protection commercial contract commercial law legal action liberal profession legal code

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

Groen Ecolo

Abstained from voting

∉ N-VA LDD VB

Party dissidents ¶

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

Contact form ¶

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Discussion ¶

March 26, 2014 | Plenary session (Chamber of representatives)

Full source

Isabelle Emmery, rapporteur, refers to the written report.

At the end of last year, the Book VI “Market Practices and Consumer Protection” was approved here. That book was not applicable to the free professions and that was a conscious and also very good choice.

CD&V and the sector were requesting parties to provide a separate book adapted to the free professions. Indeed, a separate book for the free professions recognizes the peculiarity of the free professions and guarantees their dependence, their deontology and their social added value.

In order to create the book, numerous consultations have been made with the sector, which we ⁇ appreciate.

Our group has expressed some questions and comments in the committee, especially with regard to the examples given in the explanatory memo to define the scope.

We have pointed out that a lawyer, regardless of his activities, still retains his capacity. A notary who mediates does so within his office. In addition, an accountant must not sell insurance products. This is prohibited by duty teaching.

We therefore wondered whether it was desirable to mention those examples in the explanatory memory. Especially in the last example of the accountant, the minister acknowledged our concern. The example was therefore removed from the memory of explanation, which we as a group appreciate.

Mrs. Minister, I assume that in line with that reasoning the example of the notaries must also be somewhat nuanced and that it can therefore be assumed that the notary who assists the citizen with advice and deed in drawing up a contract of sale by hand, does so within and in addition to his office.

From the industry there are just about those examples, especially about the last example, a lot of questions and concerns. They fear that this will cause problems in the field. Hence our request to clarify something and confirm our reasoning on the subject, Mrs. Minister.

In any case, our group agrees with the bill, with the separate code, and we will also approve the bill.

I would like to clarify for a moment why our group will abstain from voting on the present draft.

On the one hand, it is good that free professions are treated separately from all other professions, since they have a specific character. It also indicates that freelancers in the future really need their own statute to protect their independence, deontology and social added value. Thanks to the online petition launched last year by the Federation of Free Professions, a step in the right direction has been taken.

On the other hand, we remain with a few loose endings. There is still too much legal uncertainty about the crucial concept of “intellectual performance”, which should define the scope of the law. The State Council also regretted this in its opinion. This has not been sufficiently taken into account, even after our comments at the discussion in the committee.

Furthermore, the separation between the Code of Market Practices and the regime for the freelancers has not been fully overcome. This is evidenced by the fact that many of the articles in Book XIV referring to the sale of goods were taken specifically from the Code of Market Practices in order to satisfy the pharmacists, while those provisions are no longer useful. The partial split, which is also unclear, is also evident from passages in the explanatory memory of the bill. Leen Dierick has already pointed out that the examples of an accountant, lawyer and notary are pertinently wrong. A deontologist should not sell insurance. So we urged to get that out. Yet you do not.

We also regret that the amendment relating to distance sales, in particular home sales, has received insufficient support in the Committee on Business.

That’s why we will abstain in the vote.

Mr. Speaker, Mrs. Minister, dear colleagues, the fact that persons exercising a liberal profession are subject to a deontology cannot, in our view, in any case mean that they must not comply with the imperative rules aimed at protecting the consumer and the loyalty of trade on the market. In this sense, we must always keep in mind that some liberal professions actually compete with traditional merchants in the framework of their services and that professional ethics and fair business practices are not synonymous.

While differences of opinion took the step in 2010 when the revision of the Trade Practices Act and led to keeping the liberal professions out of the field, the Constitutional Court ruled declaring unconstitutional this separation. Yes, liberal professions perform acts that can be considered as acts of trade. Yes, consumers and competitors should be able to benefit from the same protection as provided by the Market Practices Act.

This was already the thesis of Herman De Bauw in 2007 in his report on a series of problems of application of the law of 14 July 1991 on commercial practices on behalf of the Belgian State. It also noted that the consequences of the inclusion of liberal professions within the scope of the law, with regard to the rules of material law, were very limited. Generally speaking, either the provisions do not, by their nature, apply to liberal professions, or there is no reason to derogate from them for these professions, which is clearly the case, for example of the obligation to inform the consumer or the prohibition of acts contrary to fair practices between sellers.

This is the logic that prevails in the bill and we are delighted with it. The Socialist group was also the depositary of a bill that went in this direction. The fact of having a specific book clearly facilitates the readability of the whole, allows the consumer to benefit from a high degree of protection and information, while recognizing the specificity of the liberal professions.

Beyond the political divisions, or even beyond the requirement of the Constitutional Court, we could not leave in the state a discrimination in discrimination, that is, the distinction that is made, in an unjustified way, between dentists and physiotherapists and other liberal professions that did not fall into the definition of "liberal profession" of the law on market practices.

In this case, the consumer interests have prevailed and we can only congratulate ourselves.

I thank you for your attention.

Thank you very much, Mrs Emmery.

The Minister has the word.

Mr. President, I have no comment.

Mr. Speaker, I assume that as the term of the current legislature expires, the attention and respect for Parliament will also decrease.

In the various presentations, questions were asked to the Minister. Parliamentarians have asked questions to the executive. It testifies to an incredible disgrace that the minister answers that she has no comment. Nevertheless, I would expect at least one answer to Parliament’s questions to be given as part of the discussion of a bill. That is the least we can expect from the executive.

I hear the comment, but it also happened during the legislature that ministers did not answer questions that were asked to them. It has nothing to do with the end of the term. It is the right of the government to intervene or not. I cannot force anyone.

I ask the minister: if she says no, she says no; if she says yes, she says yes. Now she is going to speak.

Of course, it is not my intention not to answer the Members of Parliament.

We discussed this bill extensively in the committee. My answers from then are still valid today.

In the preparation of books VI and IX and their respective proposals for application, we have always assumed that there should be a different code for free professions. It is not possible to simply apply the market practices and the protection of consumers applicable to all possible undertakings also to the free professions. Therefore, we have prepared a separate book.

During its writing, we had a very intense contact with the Federation of Free Professions to ensure good consumer protection in a good way. We have taken into account the comments of the State Council grosso modo. We have aligned ourselves with European directives. With the formulation of this Code of Economic Law, we give a correct answer to the judgments of the Constitutional Court which considered the distinction between entrepreneurs and practitioners of free professions unconstitutional.

We had several discussions in the committee. In the last committee meeting, there were still adjustments following a question about a lawyer working with insurance products. This has been adjusted in the descriptions. In this way we have also adapted the other codes on economic law for the freelancers.

If I have seen another question over the eye, then the colleagues can, of course, ask them. I will answer them in detail.