Proposition 54K3560

Projet de loi visant à rendre plus accessible l'assurance protection juridique.

General information ¶

Authors

CD&V Leen Dierick, Griet Smaers
MR Gautier Calomne
Open Vld Luk Van Biesen, Carina Van Cauter

Submission date

Feb. 18, 2019

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

tax relief legal aid access to the courts insurance contract insurance premium

Voting ¶

Voted to adopt

CD&V LE Open Vld MR PP

Voted to reject

Groen Vooruit Ecolo PS | SP DéFI PVDA | PTB

Abstained from voting

∉ N-VA VB

Party dissidents ¶

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

Contact form ¶

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Discussion ¶

April 4, 2019 | Plenary session (Chamber of representatives)

Full source

The bill that CD&V has submitted and hopefully can also be approved tonight, maybe tonight, aims to make justice more accessible and make legal aid insurance more accessible. This bill was prepared by Minister Geens and his cabinet and administration as a draft law. Eventually, it was submitted as a bill in Parliament because the government has gone into ongoing affairs.

The proposal meets a great need among many families that unfortunately, if the need arises, in judicial proceedings. CD&V is not in favour of procedures to proceed, but sometimes families are forced by, for example, a lack in their home. This can involve a large financial cost. This proposal therefore addresses a large need to make it more accessible and feasible for many families to initiate a rights procedure.

The bill is a collaboration between, on the one hand, the insurance sector and, on the other hand, the legal profession and, of course, the government. The government provides for a tax reduction to cover the cost that a family procedure can entail. The proposal aims to introduce a tax reduction for the premiums for legal assistance insurance that meet a number of conditions regarding covered risks, minimum coverage, guarantee and waiting times. This replaces what is already provided as an advantage, namely the exemption from tax on the insurance premium. The amount of the premium for which the tax reduction is granted is limited to 310 euros, indexed, per year and the rate of the reduction is 40%. The bill sets out the minimum conditions to which the insurance contract of legal aid must meet in order to be eligible for the tax advantage and the tax reduction.

There were extensive discussions on this in the Committee on Finance. Several colleagues have agreed to cooperate on this bill. The bill was approved in the committee. I hope for the collaboration and collegiality of the colleagues in order to be able to approve this bill also in the plenary session. It will surely meet a need of a lot of legal seekers.

Mr. Speaker, dear colleagues, the bill that is now subject to our vote aims to make the insurance “legal protection” more accessible. This insurance is intended to defend the interests of the subscriber in the context of a judicial, administrative or other proceedings. This proposal is part of the implementation of a point of the Government Agreement in which it was stated that in order to meet the needs of the majority of the population, the government will promote the “legal protection” insurance for those who do not have access to second-line legal assistance. Insurance has become more attractive from a fiscal point of view.

The proposed tax benefit takes the form of a tax reduction of approximately 120 euros and not more than an annual tax exemption. In practice, the insurer will therefore pay a premium that he can deduct from his tax return. The insurance “legal protection” is thus made more visible.

A wider coverage is also planned. The guarantee ceiling is set at a minimum of 13 000 euros per litigation in civil matters and 13 500 euros per litigation in criminal matters, with the possibility of reducing it to 3 375 euros per insured person and per sinistre in case of litigation related to a divorce and to 6 750 euros for contractual disputes related to construction.

As for the waiting period, the principle is that there is no one, except in some matters where the general rule is a maximum year of waiting. For divorce and construction disputes which are the most costly disputes, the period may not exceed five years. If the insured changes the insurer, the waiting period already expired is taken into account.

Improving access to justice is crucial. As we know today, the costs associated with the judicial resolution of a dispute, which may be high, sometimes and often constitutes a barrier to this approach. This measure is therefore going in the right direction, especially for the middle classes who do not have access to legal aid.

The Group will therefore vote on this proposal with enthusiasm.

Mr. Speaker, colleagues, in the federal government agreement of 2014 was included that the legal aid insurance would be promoted. Well, the present legislative proposal of the government parties should make legal aid insurance more accessible.

Already during the discussions on the reform of the second-line legal aid, in the meantime several years ago, the proposed measure was anticipated as a response to the criticism that those who just have too many livelihoods to qualify for the second-line legal aid are experiencing difficulties with access to justice. The text provides for a tax reduction for a legal aid policy that meets a number of standard conditions. These include slightly higher coverage ceilings than the existing tax-stimulated standard product, as well as coverage for divorce proceedings and construction disputes.

The annual premium for an insurance product that meets the stipulated conditions will vary between 250 and 500 euros. The tax reduction is limited to a maximum of 40% with a maximum of 124 euros. An insured is therefore also not covered unlimitedly, since the coverage ceilings grossso modo cover a non-complex case in first instance, while the insured will more often have to pay a possible appeal procedure largely from his own pocket. If a lawyer does not agree on the above, the share of honorary remuneration above the bars will also be invoiced integrally to the insured. Especially in more complex files or matters, where specialized lawyers are appointed, this will cause damage to the insured’s own invoice.

So now there is a standard policy to be discussed, which due to its wide and classical scope of application will actually be quite expensive. Our group is indeed in favour of the idea of a tax incentive for those who experience difficulties in accessing justice. However, the standard policy, as it is now developed, will, in our opinion, be closed primarily by those who have a slightly more financial margin and therefore actually experience just less problems with regard to access to law. According to us, the standard police shoot its goal.

Had not the €33 million budgeted for the intended tax incentive been used otherwise to promote access to justice, especially for the middle class of low-income persons? A slightly more modular insurance product, in which the insured person can choose to exclude certain legal branches with which he is less likely to come into contact or to be insured at lower ceilings, might have brought more soil.

I ask her another question again, which the minister has not yet answered, but colleague Smaers does. The Minister is not present. In any case, is the proposed insurance not a first step towards a compulsory legal assistance insurance which will also include a compulsory convention for lawyers? Minister Geens has advocated this idea during the discussion of the draft law on the reform of the graffiti rights.

I go around.

The outcome in the file with the proposed approach is, in our view, a missed opportunity. We will abstain from voting on the proposal.

It was indeed the agreement that the Minister concerned, even if it is a bill, is present. I have already called the Minister.

If anyone wants to do so, I will suspend the meeting. Nobody asks that? (No to)

Then we continue the discussion.

Mr. Speaker, I have the impression that the Minister, since its law on the minimum service, has been approved, has been making a minimum service. He, by the way, was not there, when we then discussed the draft law related to gambling. We did not have a problem with that either. Minister De Crem has already sat down and listened attentively, I saw.

We will not support the proposed text. I refer to the discussion in the committee and the opinion given by the Committee on Justice to the Committee on Finance.

The resources are scarce. One euro can only be spent once. Then you have to make choices. There is a problem with access to justice. This problem has only been aggravated in recent years by the decisions of various governments. The VAT was introduced on honorary wages for lawyers and court guards. Registration fees have been increased. Judicial fees have been increased and additional costs have been added.

Access is a problem. This problem arises especially among those who have just fallen out of the boat, for those who earn just too much to qualify for second-line legal assistance. Then there are two options. Or one works with the existing private insurance system, which is taxally encouraged. Either the government ensures that the group that really needs support and can resort to second-line legal assistance becomes wider.

Today, approximately 8% of the population is eligible for legal assistance. In the Netherlands it is 37%. A single person is entitled to a pro-Deo lawyer if he earns less than 993 euros. That is less than the poverty line.

If we need to make an effort somewhere and we have 1 euro, where do we put that euro? As far as we are concerned, we put that euro on those who need it most, who have the hardest access to justice, and those who earn the least. If we put the income categories side by side, they are even in the first decibel of income.

Those who have just fallen out of the boat also do not have the means to pay an insurance and will not do so. Those who would do it will not see much effect of tax deductibility. The measure proposed here will therefore not improve access to justice for those who have the most difficulties, but is a tax addict for the upper middle class.

The measure will benefit the upper middle class and not those who need it most. The government and the majority set the priorities wrong.

Priorities must be set correctly and that means that the income limits to be eligible for second-line aid are raised, as in the Netherlands, where 37% of people are eligible for it. That is the direction that we must take.

The proposed measure, which is actually a gift to the upper middle class, will not solve the problem. That is why we cannot support the text.

Mr. Speaker, I will not shake my pleasure by saying that I am happy to see a text or an idea that I have been defending for several years within this homicide result in a form that has at least the merit of existing.

This text, which I had submitted in the form of a bill, dates back several years and was already justified at the time. I think it is even more justified today when it comes to access to justice, so much this access has been restricted (and Mr. Minister will not contradict me on this point). The transplant fees, VAT on fees, various attached fees have come to inflate the procedure costs, thus dismissing from the praetoriums a series of people who no longer dare to venture there, so they fear to see the financial result difficult to assume in case of failure of their procedure.

The idea of tax deductibility of premiums paid for legal protection insurance is a partial response to the problem of access to justice. We are well aware that this type of measure will not solve the problem of the poorest, but the poorest of the justiciable today benefit from second-line legal aid, which offers them this access to justice. We are all aware that the threshold of access to legal aid must be raised. During this election period, I participated in some debates on the views of justice shared by the different parties. Everyone agrees on one point, that this threshold of legal assistance must be raised, regardless of the minister (whether it is you or Mr. Van Hecke) who sometimes points out as a candidate.

However, the simple fact of raising the threshold of access to justice will not solve the problem. There is a whole fraction of the population that is not wealthy, but which is not therefore precarious enough to be able to benefit from legal aid. Therefore, it was necessary to find an answer for this category of justiciables. This is the answer you offer us. It is not perfect because it has a cost to the state budget, since the deductibility will translate into millions of euros that will be shortcomings to earn to the state budget.

We could have imagined other formulas, such as the reduction of rights. Nevertheless, this reduction would have been linear and would have benefited everyone, and therefore ⁇ not directly to that particular class that is the middle class, whom we want to help precisely through this measure, by guaranteeing them easier access to justice.

I said it in the committee, I repeat it and I will repeat it again, it is a legislation in which I believe, but it is only a first step. It is a door that is opened and I do not understand how one can say that one will not go into this door by saying that, tomorrow, it will be up to the legislator to extend the terms of this insurance policy.

I know that some in this assembly dream of making legal aid and the right to resort to the courts a branch of social security. We know well that this wish is a devout wish that will not be fulfilled so quickly. Meanwhile, other modalities and other formulas must be found and the one we are proposed to vote today is one of them. It is not the panacea, but it must be accepted and we will vote for it with enthusiasm, Mr. Minister, because it is a good start.

Mr. Minister, thank you for joining us.

Dear colleagues, my DEFI party has always supported the idea that it should be encouraged, by means of a tax reduction, the subscription of a “legal protection” insurance that is affordable for citizens in terms of premium amount, respects the free choice of the lawyer and that covers all the costs inherent to a procedure while preferring alternative modes of dispute resolution.

Undoubtedly, the tax incentive envisaged to allow a wider subscription of insurance policies “legal protection” will allow, hopefully, to increase the number of people who, in Belgium, subscribe to this type of insurance. I would like to remind you that in Belgium, only about 10% of people of the age concerned by this measure of insurance "legal protection" who have subscribed. In Germany and other countries, rates are much higher: for example, in Germany the rate is 45%.

It is true that this measure comes in part to correct the mistakes made by the government when it imposed a significant increase in office fees which contributed to a higher cost of access to justice without forgetting the imposition of 21% VAT on lawyer fees. Even if this measure had been imposed on us by the European Union, ⁇ we could have discussed the rate elsewhere. But we know that the government considered that this rate should be ⁇ ined.

This does not mean, however, that we are fully satisfied with the text that is presented to us, even if we vote for it because it is a step in the right direction and it was time to do it. However, we regret, for example, that disputes of a lower or equal value are excluded from insurance contracts "legal protection". Many people are in litigation for small amounts that they give up while they are holders of the claim because they realize that the cost of accessing justice is prohibitive. Debtors of bad faith, knowing that this recourse to justice is prohibitive, never fulfil their obligation.

From experience, I know a lot of cases where people say very clearly, "I will never pay you the amount of a debt of a few hundred euros because I know you will not go to justice, given the cost."It is deeply unequal, especially for creditors who rely on those a few hundred euros to continue to have a proper standard of living, a fortiori when they have multiple debtors failing to pay for amounts that appear ridiculous but which, accumulated, are substantial. Therefore, I do not think that it was appropriate to rule out small claims.

We also regret unusually long waiting periods: three years for child custody disputes arising from a divorce. It is surprising. I do not know if the bars that support the proposal validated those deadlines that I find unjustified.

We also question the difference in the minimum warranty ceiling depending on the type of dispute. We do not really find the motivation in the developments of the bill: 13,000 euros for a project in civil matters. Why 13,500 in criminal matters? This amount is reduced to 3,375 euros in divorce cases, to 6,750 euros in construction and labour law. How were these ceilings fixed? Based on what criteria? We have found no trace of this, neither in the discussions in the committee nor in the developments of the proposal.

Therefore, there will still be a long way to go in order to improve the text that is submitted to us and to evaluate it at the time. I would also like to thank those who have pledged to make an assessment of the application of this law every two years with the bars and the insurance sector, as soon as it will be voted in a few hours. Regardless of the shortcomings found in the text, as I said, a step forward in this matter is better than the status quo. We will vote for this bill!

I would like to thank my colleagues for their constructive comments. I also thank the various parties of the old opposition, if I can call them so, for their cooperation. I believe that this proposal is making progress on access to justice. We have talked about this in the committee. I have this deep conviction.