Proposition 54K3303

Projet de loi portant des dispositions diverses en matière de justice.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Oct. 8, 2018

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil law civil procedure mentally disabled person legal capacity judicial proceedings

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP DéFI Open Vld N-VA LDD MR PVDA | PTB PP

Abstained from voting

∉ VB

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Discussion ¶

Dec. 20, 2018 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I would like to briefly report on this important draft, for which a first and second reading was held. Since a verbal report was heard during the second reading, I would like to briefly summarize a few things.

The draft consists of 203 articles and more than 100 amendments were discussed, to say only that we have devoted a long and thorough discussion to the text which deals with various aspects of civil law and which was mainly aimed at simplification, automation and adaptation in accordance with jurisprudence on various themes.

From now on, digitalization can be used for the disability scheme. There is a change in the right of descent, in accordance with the decisions of the Constitutional Court. There is the clarification and simplification of the maintenance contribution scheme. The renewal in this regard also emphasizes the importance of the mutual agreement of the parents.

Another element, which many have long waited for, is the adaptation of the Judicial Code with a view to the right of associations to defend collective interests, in accordance with the case-law of the Constitutional Court.

In the end, we also got the opportunity to update other regulations through a number of amendments, such as those concerning the appointment of a guardian, the trainees of notaries and the second-line assistance.

On behalf of my group, I would like to add that we are pleased that the discussion on an important legislation – it has become a lively book – has taken place. I especially thank the speakers at the hearing, the colleagues, who all worked constructively, the services, the minister and the staff. We are pleased that we reached here today, as the text contains important measures, which should enter into force before 1 January.

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, my speech will be brief because the discussion on this draft has already been conducted extensively in the committee. However, given the unusual course of this bill — we approved it in the committee on Tuesday morning, after second reading, in a slightly different capacity than during its discussion — I would like to explain the major titles of it.

A lot has been said and written recently about the objectivation of maintenance contributions. We must support all initiatives taken to improve the budget for child maintenance contributions. You know that our group has already taken a number of initiatives. We have submitted a number of legislative proposals that should make it more comprehensive for parents. Objectivity and transparency are especially important, both for the maintenance entitled and for the maintenance obligator. It is important that we continue to pay attention to this issue. After all, it is often a source of frustration in divorced parents if one believes not to pay the correct maintenance contribution.

The present draft law is the implementation of two recommendations of the committee on the objectivation of maintenance contributions. One of the recommendations was murdered during treatment. In particular, it concerns the extensive justification of the establishment of the budget for maintenance if this is done by mutual agreement during a mediation. What has remained, however, is the recording in a KB of the extraordinary or residence-exceeding costs. This royal decision will follow later.

According to the case-law of the Court of Cassation, the Committee on the Objectification of Maintenance Contributions has taken an initiative to provide greater legal certainty. On the other hand, the proposal leaves room for parents to give further fulfillment.

Mr. Minister, I would like to ask you to watch over that list and to limit you to established jurisprudence. This will prevent the rules from being interpreted too broadly. This would only lead to more discussion.

Regarding the second title, the provisional regime, I would limit myself to point out that the support in this regard was large, both during the hearings and among the committee members. The Bewindvoering Reporting Point, the reporting point that was spontaneously and voluntarily established by about fifty welfare organisations, explicitly asked, given their limited means of action — not to say that they have no means of action — to organize a ombudsman’s service under the umbrella of the government. This suggestion is, in our opinion, worth investigating, as there are daily complaints within the framework of provisional rule.

Finally, this, though colleague Van Hecke may later speak more extensively about this. During the hearings, Professor Allemeersch made clear that the proposed regulation on collective claims seems necessary to effectively align the law with the case-law of the Constitutional Court, put forward in 2013 and repeated in 2016. Our group is therefore happy to join the proposed conditions of application, which in fact provide a final solution to the inequality of treatment that the Constitutional Court has identified in its judgment and the mandate that it has given in that judgment.

Mr. Speaker, we held hearings in the committee and in a second reading the texts were thoroughly studied. In our committee, a second reading has actually become the rule, which really leads to the fact that the texts can be legally improved after amendment. I would also like to thank the services for their excellent work in the preparation of that second reading. The legal service’s notes are absolutely of ⁇ high quality, 90 to 95 % of the comments they make effectively also leads to adjustments in the second reading.

The right of claim for associations is very important to me. This is actually a historical moment. The amendment of Article 17 of the Judicial Code largely ends an interpretation that has been in force since the judgment of the Court of Cassation of 19 November 1982, the so-called Eikendael judgment. That judgment stated that associations could not appear before a court to defend their statutory purpose. In fact, it was necessary to have a personal, direct interest.

This was obviously problematic because associations that argued for collective law therefore did not have access to the courts and courts. For example, specifically environmental associations, poverty associations or tenant associations did not have access to a court. For the Constitutional Court this was possible, and in large part – not always – also for the Council of State. In the civil court, however, this still constituted a problem.

After 1982 there have been a number of special laws adopted by the Chamber in which such a right of claim was granted in very specific circumstances to associations, for example in the context of consumer law, equality of opportunities, anti-discrimination and so on. However, there was no general arrangement for associations to initiate legal proceedings. We have been working for this for many years. Since I joined Parliament in 2007, I have submitted legislative proposals to each legislature, together with the members of Ecolo, in order to amend Article 17 and make access easier for associations. It has been a whole path of suffering, which I will not repeat. I have cited it in the committee and it is also included in the report. Over the past twelve years there have been several hearings and various opinions of the State Council, including a very thorough opinion of the general assembly of up to 55 pages, in which the legal situation is well described, among other things, on the basis of international law. However, it has never been possible to reach a vote, as finding a majority for the matter until today was apparently very difficult. until today. Today it is included in one of the potpourri laws, which we can no longer call potpourri laws. However, it has been incorporated into that law with the help of the Constitutional Court. In fact, in 2013, the Constitutional Court ruled that there was a violation of the principle of equality, because there was no arrangement for access to the court for the association.

Today is so far. However, associations will be able to act to defend the statutory purpose, insofar as the statutory purpose aims to protect a number of fundamental rights and freedoms, determined in the Belgian Constitution or international treaties, for example also the rights contained in Article 23 of our Constitution.

That article is a very important article in our Constitution, which establishes a lot of fundamental rights, such as the right to healthy living, social rights, but also the right to environmental protection.

Therefore, I am ⁇ pleased today that the present proposal will be able to be adopted. It is somewhat strange, but in that sense it is a rather historical mood today. The legal world does not yet realize that what prevails, falls upon them. In any case, it will be a step forward. Many associations will be very pleased that in this way they will finally be able to go to court, often as a last weapon.

Mr. Speaker, Mr. Minister, remember, we started our commission angry. We finished it together. Per ⁇ the evocations to Descartes regarding the Discours de la méthode – by myself – and to Montesquieu and De l’Esprit des lois – by you – allowed our commission to evolve more positively in the heart of its work.

( ... ... )

Mr. Cheron, I said Descartes, and Montesquieu was the response of Mr. Minister.

With Descartes, I criticized the method of pot-pourris. He replicated with De l'Esprit des lois de Montesquieu which resulted, at the end of the works, on a unanimous vote of the commission despite the method. Because in the framework of our discussions, the texts could be amended and for many of them, they came from the opposition with the objective, Mr. Van Hecke recalled, to improve the texts proposed to the courts and in the end to the justiciable, our fellow citizens.

We must rejoice at the spirit that has reigned within our commission, especially with regard to disabilities, since, while a little while before we had already reviewed the matter, we have further accentuated the improvements always in order to ensure greater dignity to all those persons who, at one time or another, are faced with the need to see their journey or the management of their property accompanied by a third person who must help them advance on this difficult path that is theirs.

Also in matters of maintenance contribution where we have been able to claim the specificities of mediation compared to traditional judicial techniques in order not to lock in too strict and particular methods and modalities, the way in which parents manage to decide on the amount of the maintenance contributions that they determine without having to specify until the last kopeck the reason that prompted them to accept this or that amount.

Finally, Mr. Van Hecke has just recalled, a new notion, in the absence of being revolutionary, is introduced into our law with the action of collective interest which finally finds a legal basis.

This work, which was carried out after quite interesting hearings, with a broad contribution from all the Commissioners, led to a text that, I don’t think I’m mistaken, is supported by all the groups. This proves that it is possible to work in perfect agreement with Parliament, regardless of each other’s views and horizons. Per ⁇ this is a path to follow in the weeks ahead.

Without a doubt, to your great satisfaction as President of this Parliament, this draft was unanimously approved. It will very much try to solve and prevent human problems important to society.

I think of the Precautionary Authority, which is a very important way of giving people who are threatened to be put under control, already the opportunity to say how their property and their person will be treated during that period.

I also think of the question of the collective interests, a matter that the Constitutional Court has asked for some time, and which has satisfied the members of the committee with a method that we no longer call potpourri in the good style of Magritte, ceci n'est pas un potpourri, but at the same time we have had a lot of fun of it.

I would like to thank the Commissioners.

I would like to thank the members of the committee for their constructive spirit, in the sense of Descartes and Montesquieu. I have no doubt that in the coming months, we will have the pleasure of continuing in this direction.