Proposition 54K2828

Projet de loi portant réforme du droit des entreprises.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Dec. 7, 2017

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

economic policy type of business business policy

Voting ¶

Voted to adopt

CD&V Open Vld N-VA LDD MR PP

Voted to reject

Groen Vooruit Ecolo LE PS | SP DéFI PVDA | PTB

Abstained from voting

∉ VB

Party dissidents ¶

• Olivier Maingain (MR) voted to reject.
• Monica De Coninck (Vooruit) abstained from voting.

Contact form ¶

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Discussion ¶

March 29, 2018 | Plenary session (Chamber of representatives)

Full source

I would like to refer to the written report. Together with my colleague, we agreed on this. I will take the floor to express my position.

Mr. Speaker, Mr. Minister, colleagues, the present bill was extensively discussed in the Committee on Trade and Economic Law with hearings, an extensive general discussion and the article-by-article discussion. I will give a very brief explanation in support of the present bill, however one of the cornerstones of the Code of Economic Law.

Already from the "first stone laying" of the design, it was clear that the old commercial law with the concept of merchant would eventually go to the trap. From now on, all players in the economic circulation will be legally placed on the same reading.

The draft law defines the Code of Commerce and enters into the Code of Economic Law an extended business concept. The Commercial Court will be transformed into the Commercial Court. It thus extends its competence to the majority of disputes between undertakings, which will now include freelancers, farmers and social enterprises. Once again, it has been shown that the organization of hearings for major legislative changes such as this is ⁇ useful, because the input of various speakers resulted in a number of valuable amendments. Otherwise, they will be submitted later.

Thus, with an amendment submitted by us, the unnecessary and barely fulfilled legal obligation to assign the company number to buildings will be abolished. Violation of that obligation can still be sanctioned with a fine of up to 30 000 euros. It seemed to us a bridge too far that many new enterprises, which I have just listed, would have to comply with this absurd obligation. The publicity of the company numbers and addresses of social headquarters or other branches of companies is already sufficiently regulated in the Cross Point Bank of Entrepreneurs.

Finally, the draft law also sets out a regulation on how groups without legal personality can be represented in court. There are indeed a lot of application problems in the legal practice, which we will briefly address in the article-specific discussion by my nice colleague Wim Van der Donckt.

Mr. Speaker, I will be very brief, because I realize that almost no one still follows what is said here. I also do not want to be repeated about the content of legislation, which is more common in the discussion of draft legislation. I will limit myself to the main provisions for my group.

The introduction of the new concept of entrepreneur is also important for a lot of vzw’s, which will undoubtedly be food for further discussion tonight. In any case, we must communicate honestly and openly with the CSWs on this.

It can be difficult to deny that the legislation uses an innovative concept of entrepreneur. Nothing is easier than frightening lawmakers from new legislation. But, as Ms. Uyttersprot pointed out, the innovations that are now on the table indeed mean an improvement and provide for greater legal certainty and simplification, also for social enterprises. This brings to an end the discussion on whether the company carries out commercial activities and is therefore subject to the Civil Court or the Commercial Court or not. Progress is being made in this area, as this creates legal certainty.

People are scared by pointing out that vzw’s can go bankrupt from now on. But maybe that is a good way to solve possible problems with vzw. After all, if a company is in trouble today and therefore a liquidator needs to be appointed, one ends up in a civil procedure, which only complicates things for the company.

By applying the rules of trade, which will now apply to all undertakings, including the WTOs, everything will become more transparent and clear and there will be greater legal certainty for those behind a WTO. One should not fear these persons for additional responsibilities, for they do not exist.

The new law must be implemented and all opportunities must be given. I have no doubt that it is a good law, which also the associations will eventually realize that it means a step forward in the story of responsibilities and about self-employed individuals who come into trouble.

Finally, by expanding the concept of entrepreneur, a greater number of cases are brought before the business court. I have taken note of your announcement in the committee, Mr. Minister, that you will ensure that the staff members at the new corporate courts will be filled up to the maximum. I think the former trade courts will be grateful to you.

Mr. Speaker, dear colleagues, I will speak from my bench because I thought I understood that the choice that was made tonight is to be concise.

As the chairman of the committee responsible for issues of Commercial and Economic Law, I welcome the contradictory but respectful, rich and very interesting debates on the exposition of the reasons for the project that is submitted to us, as well as at the level of the people we have heard, which allowed us to sharpen our opinion and any questions that could still arise. Finally, the many discussions were very intense with my dear colleagues, and I thank them for this.

Mr. Speaker, the main objective of the project presented to us tonight, which I hope will be voted on, is to describe the concept of enterprise in a more coherent way and to solve some problems related to the existing concept of enterprise. The goal is a simplification exercise.

Indeed, the concept of enterprise varies according to legislation, due to the survival of the concepts of merchant and act of trade which we inherit from the Napoleonic era. This is not transparent and creates legal uncertainty, for example in determining which court could be competent, in case of dispute, according to the qualificative given to that dispute.

This reform, which was presented to us by the Minister of Justice, aims to end these uncertainties by classifying all economic actors, in the broadest sense of the term, into the category of enterprises now defined as "any natural or legal person pursuing a sustainable economic purpose".

Other colleagues will ⁇ be speaking on the subject. It is true that this new definition of the word "business" will also include non-profit associations. For the MR group, it is important to clarify that this bill was drafted in consultation with representatives of the associative world. It has been the subject of a broad consensus.

The project has, in fact, no limited impact on ASBLs. It does not affect their non-profit nature; it is very important to clarify this. The word "company" in the legal sense will not have a specified market connotation. It covers all legal persons as well as a number of natural persons. And, as such, it should be recalled that ASBLs are legal persons and that, therefore, they are already obliged to keep accounting and publish their statutes, the list of directors and their annual accounts.

We are entering into a much broader reform. We had discussions on solvency under the chairmanship of my colleague Clarinval. We are currently talking about the corporate court. Tomorrow, we will also address the reform of the Code of Companies which will allow to deepen all the discussions that we have had on the margins but also and, importantly despite all, during the presentation of the current bill.

Only two things will eventually change for the ASBL. First, and we consider this to be an improvement for them, they will no longer deposit the publication forms for the Moniteur belge with the register of the Commercial Court but with the Banque-Carrefour des Entreprises (ECB). Registration at the ECB will be free of charge for non-profit associations and this change will only be effective when the ECB+ initiative (the digitalized version of the ECB) is implemented. In other words, we will now be able to fulfill the formalities of publications on the Internet. I think that anyone who has had the experience of filing the current rebarbative forms will welcome this change that will facilitate the steps for ASBLs.

Second, they will belong to the Commercial Court which will be renamed "Commercial Court" and they will no longer appeal to the Court of First Instance. ASBLs will gain in exchange because they will have access to a jurisdiction specialized in legal entity law whose effectiveness is recognized and does not suffer from too many judicial delays, which unfortunately is not the case in all judicial instances in our country.

The future corporate courts will now consist of consular judges who are non-professional judges who sit alongside the judges of the judicial order. These are people from the associative world. This achievement is important to us and I thank the Minister for his kindness. The ASBL will therefore for the first time have representatives among the judges in the cases that concern them.

I come to the conclusion. As I said before, we had extensive debates as well as a second reading, which allowed us to rework in depth all the questions that arose. I will not go into the discussion again.

For the MR group, this reform is a progress for all legal professionals, as well as business managers who will see more clearly in the existing legislation; that goes without saying! We will have the opportunity to see this even more clearly with the final part of the reform that will then be related to the reform of the Corporate Code.

For the two reasons I have just mentioned, the MR group and I will give our support to the bill.

Mr. Terwingen, we have been attentive all afternoon and it is definitely intended to stay attentive.

Colleagues, the purpose of these reforms is to define a new definition of the enterprise in a coherent way and to eliminate the problems associated with the existing concept of the enterprise. The new general definition will use formal criteria instead of the current material criterion. This new general definition will serve as a benchmark for the jurisdiction of the business court, the company certificate, the insolvency law and the provisions relating to the CBO and the accounting obligations.

Although I am not a lawyer, I will still try to make an assessment of the possible consequences on the ground based on the information obtained from the hearings and in the committee.

I will go deeper into some parts.

We start with the new definition of underneath. Contrary to what was intended as the goal of the new definition, the sector believes that the new definition will lead to confusion and uncertainty. The widespread embodiment of the concept of undertaking could lead to various possible interpretations, which ⁇ does not promote the legal certainty of many undertakings. The State Council has also formulated a number of critical comments regarding the new definition. Mr. Minister, despite all your good intentions, we conclude that it will not be easier, especially for users and citizens.

Second, there is the registration in the KBO. A consequence of the new definition is the fact that many new companies will have to register in the KBO. This will automatically lead to additional administrative burden for many associations. When they do not have the necessary expertise at home, they will be required to attract additional support, which automatically leads to costs. Small organizations are victims of this. With the introduction of KBO+ in the near future, there can also be a conflict there. We therefore advise to avoid double work. I also note that the administrative simplification – which the government is praising about – is apparently not applicable here.

The third point is the business court. With the establishment of this new court, a number of practical concerns arise. The judges in that court should be a healthy mix of professional judges and judges with feelings for business, business, and free professions. This will ⁇ not be a sinecure. The Minister of Justice will also need to provide sufficient resources to meet the workload and provide for the additional staff involved in the establishment of the new court. I would also like to remind you that last week we already declared the Commercial Court competent for collective recovery, both for SMEs and consumers. This will ⁇ need to be followed up.

This brings me to my fourth point: practical feasibility. The predetermined timeframe is completely unrealistic for us. Many new companies will have to make administrative arrangements and the new court will also have to be operational. Additional staff and specialized judges will need to be appointed and/or trained. It is a utopia to say that this must be done within a period of six months, Mr. Minister.

I decide .

On the basis of the arguments I have cited, we conclude that the proposed reform overrides its objective. It will not be easier, let alone more transparent. Despite a number of justified comments from the workplace and fears of a subordinate business court, many new enterprises will be filled with extra work, which will surely lead to additional costs. Add a period of six months to organize everything, and every healthy person knows that this is not feasible.

We will therefore not approve the present draft.

Mr. Speaker, to begin my speech, I would like to reset the text that we are analyzing in a trajectory. We worked several months ago on a text that wanted to improve the arrangements relating to insolvency and corporate continuity. We are now finalising a text on corporate law and we will soon have a text on the Corporate Code. It is ⁇ disturbing to have to work on pieces that announce the next piece without having the guarantee that the content of the next piece will be consistent and will ⁇ the announced goals.

Mr. Minister, I told you in a committee, I would have liked that we have all the provisions so that we can work in a coherent and comprehensive way, checking the impacts of the measures on each other.

I know the Lord thinks we are repeating. I will repeat, as everyone has done, and I will do it in a concise way.

Mr. Minister, you submitted to us a strategic declaration, a policy note for the duration of the legislature that announced the reforms you were going to carry out. At that time, I asked you in particular about the improvement of the legislative arrangements concerning cooperatives. You answered me that there was no complaint and therefore it was not necessary. We then worked in the Commercial Law Committee on bills – one from Mrs Winckel and mine – creating SCOPs, companies with participatory management on the cooperative model. To be sure that you are hearing the elements, we have organized auditions, as well as to be sure that you can integrate this dimension into the work you are going to begin. It was a way of anticipating the work that was going to be done.

I also had the opportunity to read a book, written in particular by you and other lawyers specializing in business law and in the Code of Companies, in which a draft reform of the Code of Companies was already built, from the reflections of academics and professors in the matter. He was interesting. I think it served as a guideline for your bills. This is not the meeting of all the actors. The meeting of economic actors, yes! The meeting of cooperative actors came when the cooperatives began to say: "Your project does not take into account our realities and the model of society and economic development we represent." This is what we must admit in the course of the work.

This development has its importance because it influences the content of the various texts and it has an importance on the experience, perception and finally, the concrete analyses of the texts. It doesn’t like Mr. Terwingen, it’s not about frightening from nothing. There are striking elements for actors who, today, work on a social project for the benefit of citizens, for the benefit of a meaningful economic activity, which is not only aimed at making profit but which creates connection. A project that, in the end, will facilitate the transition to a different way of functioning than that of the current economic system that is coming, it must be recognized, at the end of the race.

Mr. Minister, we abstained from the bill on the solvency and continuity of companies. It is not that he is not good enough in setting up insolvency arrangements and in how to anticipate and improve the second chance and in the possibility, for a bankrupt, to benefit from the cancellation of his debts and to resume his business. These are all provisions that we have supported. But already in this bill – we discussed it – it appeared that if ASBLs could – they will be able to do so from 1 May –, benefit from these provisions relating to solvency, it would be good, but it was already felt that they would be considered as enterprises, as structures with economic activity, regardless of their object and their social purpose.

The corporate law, which we have discussed and which we are finalising today, concrete these concerns. We had a lot of exchanges and you tried to reassure me by telling me that the object/forwerp, the purpose/purpose will be well present in the registration of the associations and in the statutes.

However, you refuse to consider that it is important that certain forms of activity are identified from there. This social purpose must not only be a characteristic found in the statutes but it must allow to classify the activity of an association, of a company, of an entrepreneurial activity. The term “entrepreneurial” is not an insult and is not a problem for me. What annoys me is when one assimilates business, economic activity and some ASBLs that have economic activities, and that one wishes to characterize them only by these activities. In this case, they will not distribute more to their members.

This is shocking because these people, who gather in ASBL and mobilize financial means to create cooperatives, companies with social purpose, want to manage differently, create models of governance. They want participation, collaboration and meaning. This is what characterizes them and it is what makes them mobilize financial means and citizens’ savings rather than depositing that money in banks that will put it at the disposal of companies that will speculate, or rather than keeping that money safe without taking risks for social development.

I do not understand that you have not agreed to divide your text so that these associations, this economy and those actors with social or social purpose activities that can be characterized by economic activities as means and not as a pursued end appear clearly. This allows for readability. The right of association contained in our Constitution requires clarity. You say you want to remedy this by preparing a sheet of articles. It is true that, for now, everything is scattered in a text "company law".

If this is your intention, it would have been better to do it sooner, so that we can show it and people find themselves there. The law must be at the service of the people. If we want them to enjoy their right to associate, we need clear, simple and understandable texts. Otherwise, we reserve this right to people who know how to read complex laws and identify what interests them. We are in a cliquet logic: insolvency, corporate law and the Corporate Code will come.

I recently held a conference. Your office participated in part. We have heard of the actors of the cooperatives, the associative sector, the social sector, these new forms of society called the SCOPs, a model that says that an economic enterprise can be managed cooperatively and participatively, with thus added value. All these actors came to say that the law and codes had to be simplified. But they also said they are not heard in their specificities and in the reasons that justify their activities, in their ability to develop an economy that creates connections. It is this link that makes the strength of economic development. It is this link that improves the survival capacity of ⁇ , ⁇ and associations. I would like this dimension to be emphasized in the texts. This will not be the case with corporate law.

Your separate and ASBL-related text should be published as soon as possible so that people know that you have things about them and that you still want to make them understandable and accessible. I truly hope that, in the Code of Companies, you will agree to integrate and value both the cooperative form, the form for social purpose and the modes of participative and collaborative governance.

I would like to draw attention to one last point. Sometimes I add a last point after the last one! But this will be the “der des der”. This is the so-called collaborative economy. I spoke in the committee to draw your attention, Mr. Minister, on the following. As we address the Code of Companies, it would be interesting to make a linguistic correction. A platform economy does not mean a collaborative economy. An approved platform economy does not mean a collaborative economy either. In the texts used by this government, in the corporate law, but also in the tax measures and measures relating to social contributions, and in the project relating to occasional workers, which is under completion, measures derogatory from certain obligations for the collaborative economy are provided each time, because it is considered to be an exchange of services between citizens who share the same objective. But that is not true!

There are collaborative platforms that work this way. These are organized on a cooperative model; I return to that. But an economy platform on the Uber model has nothing to do with a gathering of citizens who exchange services with each other. Here, it is the use of services through the Internet network; this allows some to gather together and make profit through the mobilization of network partners.

In your texts, if you want to promote the true collaborative platform, you must include in the approval criteria a mode of governance. This should be based on the cooperative model. If you don’t do that, we’ll all be rolled into the flour believing we’re participating in the development of an interactive collaborative economy, while in fact we’ll be participating in a speculative economy model that abuses networking partners and social and economic actors.

I hope you will take these comments into consideration in the future text.

Mr. Minister, allow me to go up to the tribune to speak to you. During five committee meetings, I caused you some headaches and I ⁇ ’t want you to catch a torticolis because of me, since I’m sitting behind you.

You will talk to you about this project that has occupied much of our time and commission chargées des problèmes de Droit commercial et économique et va le remplacer dans un contexte, and me concentrating on the second part of your cocktail. What is the taste of a-t-il? Le premier volet était constitué par la loi sur l'insolvabilité, adopted in a few months. Tonight, we discuss the draft law on the reform of the Code of Enterprises. Then we will be presented something that we do not know yet, since you are a secret specialist. You entrust the drafting of your documents to specialized cabinets. Today, we are obliged to pronounce on a part of the...

The [...]

Mr. President, you have experts...

These are experts who work for nothing, Mr. De Lamotte.

That way, you would have told us. It is better so. Experts are still working on these issues.

Mr. Minister, during the debates, you have argued that this bill would simplify and uniformise corporate law in order to reduce legal uncertainty. I understand you well, but I would like to make a first comment. So, regarding the associative world – of which I will talk long – but also about companies, I wonder about the added value of your text.

Mr. Minister, allow me to resume a few extracts from the State Council opinion, which disputes the legal value of your project. So, according to this court, "there are still many questions about the bill. In particular, the complexity of interpretation does not disappear.” However, it is inconvenient that the interpretation to be delivered of this text can be disputed.

Previously, it was necessary to judge what was a sustainable economic activity. After the reform, it will be necessary to judge what is a professional activity on the basis of a criterion not specified in the law, but rather in the exposition of the reasons." The definition is therefore in the exposition of the reasons and not in the text of the law, that is, that the activity must be sustainable.

Furthermore, the statement of reasons specifies that the choice of the term "professional activity" is motivated by the idea that it will lead to fewer discussions and uncertainties. But he also says that a new jurisprudence will have to build from the new definition. We will therefore change a jurisprudence that is focused on the civil court, with civil magistrates, to the corporate court. Where is the legal security now?

The State Council also states that the concept of enterprise is less uniform than it is currently, which does not contribute to the coherence or clarity of regulation. And he adds that the new definition of the company is not in a way to adequately increase legal certainty. These are the sentences cited by the State Council.

And no matter, Mr. Minister, you continue in your project! Especially, and I always cite the letter of the State Council: "At the same time, the notion of professional activity is not defined and perpetuates the debates on the subject of the enterprise. The definition of project shall qualify as an undertaking, in particular, any natural person who exercises a professional activity on an independent basis. The concept of professional activity is not defined further in the pre-project, the exhibition of the motives specifying only that the sustainability of the activity is inherent to a professional activity."So why keep the concept of object for self-employed? Why not consider it as an independent business? There is again a zone of legal uncertainty.

The State Council observation was confirmed during the hearings that took place over a day. UNIZO highlighted the lack of definition of professional activity, ⁇ concerned – I reiterate a topic from my colleague, on which I will return – about the impact on the collaborative economy.

Mr. Minister, I have a few remarks to make about the crystallization of the State Council on legal certainty, which leads us to worry about the solidity of your text.

I have long discussed with you, in a committee, the notion of the ASBL and this reform that is a problem for me, as well as a number of associations. You include all ASBLs in the company definition while until now, only ASBLs that conducted sustainable economic activity were. Integrating all ASBLs into the concept of enterprise, has no added value and is not needed today.

Why change something that works? If you are permitted, I will repeat quotations. The companies represent 130,000 associations in Belgium, 100,000 of which have no employees. ASBLs represent only one-third of employers. We will therefore impose on a number of associations constraints that they do not have and on two-thirds that do not have a problem. I recall, and this concerns all of us, that these associations exercise the freedom of association provided for in the Constitution and by which civil society expresses itself in the country, including in a socio-political perspective. The associative world is a privileged place of creativity and freedom of association: therefore it should not be weakened.

It seems to me, Mr. Minister, that we are going beyond the goal. Because, very clearly, depending on what will happen and what is there today, the justified fear lies in the complexity of the system for two-thirds of ASBLs. The petition has circulated with almost 15,000 signatures. I have not signed it, you can check it.

I think the recommended measure is disproportionate to the problem raised.

I would like to rebound.

In fact, we have already had this discussion about this petition that you have not signed. This is a good sign. This is the sign that you have been attentive in commission and that you have understood what is being talked about in this bill.

I would like to clarify, in relation to all these petitions circulating and all those people who are afraid and who may be misinformed or intentionally misinformed about the consequences of this bill – the minister will probably be able to better clarify my point – that there is no reason, neither for the small nor for the large ASBL, to worry about the notion of non-market, including in the reform of the corporate law in this project. It is very important to say it.

Some obligations will remain, others will be modified, but there will also be the possibility for an ASBL who wishes, to maintain its legal structure but also, in a more free way to exercise activities within the framework of its social object. Information will be disseminated for ASBLs; this should be ⁇ .

By not signing this petition, you showed that you understood this nuance and I thank you for it.

Mrs. Jadin, I did not sign it because I did not want to be told that I had a conflict of interest. I have done this explicitly to stay out of that. On the project, I think they are right. You can deny things, but they are not 15,000 who are wrong. Recognize that it is appealing that 15,000 associations are positioning themselves in relation to this text, which I did not create and which I did not sign. However, this deserves to raise a number of questions. Allow me to do it.

The fear is indeed that this project complicates the lives of two-thirds of ASBLs, especially the smaller ones. I will give you a few examples. The proof-right trade regime increases the responsibility of ASBLs who will have to react within the week to challenge erroneous invoices or fraud, otherwise they will be considered accepted. I think it is illusory to believe that imposing the professionalization of the non-market sector will be done without sacrificing part of its activity because the volunteers present in the associative world will need to have multiple skills: computer science, accounting, taxation, law, etc. I think volunteers who work in associations have more interest in helping disabled people or students!

The second difficulty is the breakdown of the law of 1921 into different codes. I think the small ASBLs will not find themselves in these subjects. The law of 1921 contained 17,000 words and we will move to the books of the Code of Companies that contain 340,000 words. They do not facilitate their work.

Mr. Minister, you expressed, and I emphasize, your intention to write a number of documents to make their life easier, but you did not enter it in the text. There will be no formal coordination. There will therefore be only one mode of use of which one can doubt updating and updates. I would say very clearly: we will complicate the life of the associations. I prefer that volunteers spend more time in the social object of the ASBL than in administrative procedures. We will probably discourage the associative world by putting these formulas in place and undermine the social democracy that exists in all neighborhoods and communes.

Finally, Mr. Minister, the risk at the end of your three reforms is to create an amalgamation between the associative and the economic. But, I remind you, Mr. Minister, the associative is the history of democracies and not of the economy! You put all ASBLs in the same company bag. It is a pity, because they have nothing to do with it.

Therefore, I re-depose here, Mr. Minister, the amendment submitted in a committee on the fact of removing everything related to the legislation for ASBLs from the Code of Companies and placing it elsewhere. Either I am wrong or others are wrong, but every day, when you re-read your text, you notice some surprises. It is not Mr. Terwingen who will contradict me. In the commission, Mrs. President, how many technical repairs we have made! This is not a judgment, it is a constatation. In the second reading, a whole series of things that had passed into oblivion were changed.

I would like to ask you, Mr. Minister, on two specific points. I was interrogated for the first point concerning the abolition of civil society in commercial form. This is Article 3, § 4, of the Company Code. In fact, existing companies in this form will have to change their statutes within six months following the entry into force of the law. This change of form implies an authentic act and therefore a change of the social object and of the form of the statutes.

Six months for all changes to these companies! How will notary studies support these many additional acts? It will, in my view, be impossible for these civil societies to go to the notary within six months of implementing and implementing the law. I have been questioned on the subject. There is obviously a concern. This is why I ask you and I also turn to the team.

This would have a cost, if confirmed in the comments of one another. Your reform will actually have a cost to a number of people. Why, then, do not allow the modification of these statutes of civil societies in commercial form in the framework of a procedure under private seing. Why impose this cost?

Ladies and gentlemen, I come to a second point. Last night, I sent you and my colleagues a text on ⁇ ining professional secrecy in insolvency proceedings. I have submitted two amendments. Mr. Speaker, I would like to justify this in the sitting. This is technical, I agree. Book XX, “Corporate Insolvency” of the Code of Economic Law, which comes into force only in May 2018 and which is the subject of numerous corrective provisions in the draft law on the reform of corporate law, does not solve an important problem for the non-commercial sector that operates in sensitive sectors, where professional secrecy must rule – for example, hospitals, rest homes, children’s homes – and relating, among other things, to personal data about patients, children, follow-up entitled persons or other beneficiaries.

The case of liberal professions will be governed by a royal decree that will, in principle, be published soon and involves the intervention of the bodies representing the liberal professions, so as to monitor and guarantee the rules of professional secrecy and the preservation of clients or recipients of services of the liberal professions.

On the other hand, for associations or foundations that would be in a similar case – I mean by this the hospital sector, the rest houses, the children's homes of the judge, centers of assistance to people suffering from addiction, etc. –, nothing seems to be planned to guarantee the aspects of professional secrecy or monitoring the rights of beneficiaries. However, these aspects do not appear to be addressed in Book XX, at the level of benefits – obligations of a curator or a temporary administrator. It is necessary that, within the framework of Book XX, the respect of professional secrecy is guaranteed, not only at the level of natural persons holding the professional secret, but especially also with regard to the associations and foundations of institutions which occupy these persons as employees or service providers. Those institutions are, in fact, depositories of professional secrets and it should not, during a bankruptcy and a phase of judicial reorganization, that the information and documents covered by the professional secret be disclosed or improperly kept.

It is therefore necessary to provide for a procedure that monitors and guarantees compliance with the rules of professional secrecy in that context.

There is a second technical amendment where the logistics service – we speak of article XX.17 of the Code which stipulates that in addition to giving an opinion to the manager about the appropriate method, “the justification is to adequately safeguard the professional secret of the holders of liberal professions involved in an insolvency procedure. The data protection officer must also guard the professional secrecy of health officers, pharmacists, midwives and any other person depository by state or profession of the secrets entrusted to them, as provided for in Article 458 of the Criminal Code.

Here are two technical changes that reveal a difficulty.

To conclude, a few reflections.

Mr. Minister, you say you are going to simplify. Complex where you want to simplify. I think we will increase legal uncertainty where you wanted to reduce it. It is not me who says it, it is the state council. You complicate the life of small ASBLs who only work with volunteers and who have no economically sustainable purpose. Finally, there is a risk of creating an amalgamation between the associative and the economic and this, the associative world did not want to.

Mr. Minister, the associative world is asking about your project. I find that, although we have had hearings of representatives of the associative world, the project is not derived from a consultation with the associative world. There were no general statements, no consultations.

Mr. Minister, you presented this text at the University of Louvain, but there was no discussion with you. The associative world present on the ground fears this weakness. He is not reassured. It is not more reassured by what the Constitution says about freedom of association. Indeed, we will weaken associations and organize complexity. Personally, I prefer the vivacity of volunteers and the associative world present in the neighborhoods, streets and municipalities, to people to request administrative interventions. There is a risk of discouraging small associations.

Let us be lucid. What is happening presents the risk of a return, on the ground, to the de facto association, and will therefore result in a loss of protection. This did not have to happen. This text, Mr. Minister, touches on the very foundations of associative life according to the law of 1921.

This reform was designed by experts, a committee of university professors, ⁇ brilliant, but ⁇ disconnected from certain realities and, in particular, that of the associative world.

In our view, by supporting this complex bill, the government risks to curb the associative activity, which, however, constitutes the social fabric of our country.

Mr. Speaker, following the presentation of my charming colleague Goedele Uyttersprot, I will formulate some technical comments, which, however, will not prejudice the fact that we will now support a beautiful bill, in terms of content.

I refer to Article 13 of the draft, which adds a new § 2 to Article 703 of the Judicial Code. The new section elaborates a regulation around the way in which group groups without legal personality can be identified and represented in law.

We have from our group a number of questions raised after the committee meetings by the different interpretations of the explanatory note and the precise wording of the new provisions, more specifically the second paragraph thereof.

I have put these questions together in four items.

First, can you confirm that the new Article 703, § 2, 2e°, of the Judicial Code must be read and interpreted in such a way that it solves only the problem of the representation power to act in court of the general holders of groups without legal personality registered in the KBO?

Second, do you confirm, therefore, that the new provision absolutely does not create new claims for groups without legal personality?

and yes.

Third, do you confirm that the new Article 703, § 2, 2e°, of the Judicial Code does not intend to create a legal basis for granting groupings without legal personality registered in the KBO the capacity de jure to act as plaintiffs or defendants in disputes relating to the common rights and obligations of their members?

Finally, the new Article 703, § 2, 2e°, of the Judicial Code does not, therefore, prejudice the admissibility requirement of legal personality applicable to the initiation of legal actions. In this regard, I also refer to Articles 17 and 18 of the current Judicial Code. Will this, in other words, also apply in the new law?

Mr. Speaker, I have debated the draft with the members in the Committee on Trade and Economic Law for a very long time. I have answered most of the questions I have asked before.

I would like to emphasize, however, Mrs. Gerkens, that as regards the triade “law of insolvency-law of enterprise-law of companies and associations” – I also address Mr. de Lamotte – this is not a matter of secrecy. On October 6, 2015, in your committee, experts came to explain extensively what the reform of the law of companies and associations would consist of.

Although I understand some of your fears in that the unknown is still a bit unloved, the specialty of the association will be fully ⁇ ined. It will be even better described in the new legislation than it is at present. The cooperative idea will be fully ⁇ ined and further described according to the European definitions of "cooperative society".

With regard to the social economy, social-purpose companies will remain intact and, at the same time, ASBLs will also have the possibility of becoming “social-purpose”.

I tell you that we are primarily improving things and not abolishing certain forms at all, and above all we want to better describe their specialty. Because economic activity or non-economic activity have always been very blurred criteria, which do not serve much. I have repeatedly explained in the committee that ASBLs with an “economic activity” – which, although Europe knows it, I do not know exactly what it is – are entirely subject to the law of competition and the law of market practices.

We do not really complicate things. On many occasions, I have repeated that the complication, for the volunteers of which Mr. de Lamotte talks so well, is accounting. Accounting legislation for ASBLs has existed for a long time, for small ASBLs as well as for large ASBLs.

And for one time, you will allow me a bit, Mr. de Lamotte: the professional entrepreneurs of whom you speak, are also the painters who leave school at the age of 18 and start an independent business.

They must know all the rules of the world. And volunteers of our age, younger or older, would not be able to keep an account? The legislature has been prescribing it for a long time. This is not new. I really wonder why you say it is a complication while it is a simplification.

I fear that you will never accept the word "company" for some volunteers. But I’m sure that volunteers will, after some time, better recognize themselves in the new system than in the old one.

It is true that, in the long run, the business courts will need to receive additional support if it turns out that their workload in the field of litigation would increase significantly because they are now also competent for farmers, freelancers and associations. In any case, consular judges shall be appointed to be recruited from those bodies.

As regards professional secrecy, Mr de Lamotte, the first amendment relates to Article 215, former Article 181. In fact, Articles 458 and 459 regulate professional secrecy, applicable to both natural and legal persons. These criminal provisions are of general application. For example, the lawyer is not mentioned there, while everyone conceives that he is entirely subject to professional secrecy. In my view, the public order character of this provision makes it completely superfluous to explain the provision in insolvency law.

Your second amendment appears to refer not to Article XX.14 of the Code, but to Article XX.18. In the latter, we have already provided that the King determines, after the opinion of the Privacy Protection Commission, the more specific rules for access to the register, taking into account the special nature of certain data that must be protected on the basis of professional or business secrets. This royal decree was already taken on March 23, 2017. It regulates the functioning of the Central Solvency Register (Moniteur belge of 27 March 2017).

We give the same answer in relation to the superfluity of the explanation of professional secrecy for insolvency law.

As regards your question concerning civil societies in commercial form, it is obvious that these civil societies in commercial form, from the entry into force of this law, will be simple societies that have, for example, the form of a SPRL or anonymous company. It is completely superfluous to modify the statutes to do this, because in fact, this is done in some sort of full-right.

I remember that we already knew this with the law of 21 February 1985. According to Article 100, the accounting companies that were previously commercial companies became fully-right civil companies in commercial form. At that time, no one wanted to change his statutes. This can be done on the occasion of the next coordination of the statutes by notary when another modification of the statutes is necessary.

I come to the questions of Mr Van der Donckt concerning groups without legal personality.

It is not at all intended to derogate in any way from the general law condition of admissibility of the personality and of the personal interest. The organization without legal personality can only go to court for its personal rights or be sued for its personal obligations. This is generally defined as the collective rights and obligations of the members of the group.

It is therefore possible to exclude, subject to special legal provisions, that any collective interest could be defended by a grouping without legal personality. This requires a specific legal provision. It is also excluded that a group without legal personality could act in the personal interest of one of its members. This also requires a specific legal provision. Such legal provisions exist, but this is not the case of such a legal provision. It is only a question of the possibility of appealing in court for the personal interest of the grouping without legal personality, if a representation power with the holder has been made possible by the KBO, so that the holder can act as a formal party to the proceedings.

As regards your second, third and fourth questions, I have answered them in my recent presentation. We do not change the existing common law. Only the possibility is created to designate a burden holder in the KBO as a formal party to the proceedings.

These were some of the answers, Mr. Speaker, which I wanted to give to the questions that were asked to me. I thank you and especially thank the members of the committee, and its chairman, for their wonderful cooperation.