Proposition 55K0173

Projet de loi portant le livre 3 "Les biens" du Code civil.

General information ¶

Authors

CD&V Servais Verherstraeten
MR Philippe Goffin
Open Vld Katja Gabriëls

Submission date

July 16, 2019

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil law ownership

Voting ¶

Voted to adopt

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

Contact form ¶

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Discussion ¶

Jan. 30, 2020 | Plenary session (Chamber of representatives)

Full source

I refer to the written report, Mr. Speaker.

In the general discussion, Mr D'Haese is the first to speak.

Dear colleagues, I had hoped to welcome the Minister of Justice here, but we are looking for him and do not find him. It’s a bit of “where is Wally”. Where is the Minister of Justice? It is important to be able to discuss and approve its design today.

from legal practice. Many legal practitioners find it difficult to cope with the rhythm of innovation within the Judiciary. Since 2014, Justice has been used in all branches of the right to introduce many innovations and changes. Here, again, is a new canary of a code. However, there were good reasons for it. The right of goods had to be renewed, in particular due to the fragmentation of the legal sources in that legal sector. Today we can vote on a structured, functional and modern code that provides sufficient flexibility for practice.

We will ⁇ not fall into repetition. I found that there was a very constructive cooperation and concretization in the committee, of all good innovations. One expert even stated that an excellent scheme had been brought to an even more excellent level. These are not the words of a member of parliament, but of one of the experts. Allow me, however, to point out a limited number of points on which, in particular, my group, the N-VA, has managed to impress its mark in the committee.

The first point. Many experts shared the view that the time was not yet ripe to introduce the fiducie, a figure of rule over goods, in our goods law, especially because of the many open fiscal questions. We are now with a government in ongoing affairs, which cannot fall back to a parliamentary majority. If it seems appropriate in the future to include the chapter on fiducie still in the code, then it seems to us essential that the fiscal framework is first clearly drawn up in advance and, above all, the possible gaps in that framework are closed.

The second major force line in the present bill is that the originally planned independent ownership of utility infrastructure could open the door to market or mortgage our critical public infrastructure. We were also supported by experts and other groups followed us. For the N-VA, public infrastructure should remain under domestic control as far as possible. Foreign private players are ⁇ welcome, to some extent, but the own government must always be able to keep the ropes in hand. We are obliged to do so by our shareholders, in this case the taxpayers.

Finally, the N-VA proposal provides for the exclusive jurisdiction of the peace judge in matters related to neighborhood impediments on the basis of objective liability. Indeed, to date, depending on the order of the size of the damage (a principal amount above or below 5,000 euros), the peacekeeper and then the court of first instance are competent ratione summae. This has led to a lot of confusion in the past, especially for wrong calls before a non-competent court. However, the peace judge is the natural judge for most other neighborhood matters, as well as the provisions of the two other subtitles of the title "Bourne relations" of the present code.

We are pleased that our proposal to make the peace judge fully competent in these cases was adopted unanimously with one abstinence. Our group will therefore fully approve this Code.

The book Goods, which is published today, is indeed a very important text.

For those who have ever studied law: I think there are still few lawyers today who look back on the Business Law courses with great enthusiasm. It was generally not immediately the favorite subject of most students, although there are exceptions. It was about inheritance services, which an eighteen or nineteen-year-old student had almost never heard of. It was about property claims, common walls, settlement rights, inheritance lease and fruit use. Very sexy was the profession so not, except when it was about full and naked possessions, then everyone was awake. But all the madness on a stick.

The book Goods is extremely important for legal practice. I think that all legal practitioners have often faced legal discussions that had to be resolved through business law.

An update was really needed. The Civil Code and the original rules date from 1804. The texts were originally 216 years old. They were older than Parliament.

The text presented here has been prepared for a long time and testifies to a very great expertise, which we have also seen. This has been emphasized several times by various groups. I would like to acknowledge this very explicitly.

The work that the experts have done in preparation is of an incredible level. After all, they have provided an update and modernization, but they have also had an eye for the overseas. What have been the social evolutions to which we need to provide an answer? What choices have other countries made when drafting a modern Civil Code? Inspiration is often found abroad. For example, the modern lawbooks of the Netherlands and Quebec have been a source of inspiration.

We have greatly appreciated this work. If a reform of other codes is carried out in this way and with the same thoroughness, it would in any case guarantee the quality of the legislation.

In addition to the necessary updates, our group believes that there is a need for modernization. What we approve today is a part of a code that will not serve five, ten or twenty years, but that will last at least fifty or a hundred years. The text must be adapted to the challenges of the 21st century.

Today we think fundamentally differently about trees, bushes and animals – the members know what I am going to talk about – than in 1804 or 1886, when the Field Code was written.

A number of provisions of the Field Code have also been integrated into this new book from the Civil Code, fortunately. We are therefore very pleased that several amendments could be adopted during the hearing that address the need for modernization, and that provide a fresher view of how we deal with trees, bushes and animals.

Over the trees I could set up an entire tree. I have heard that some peace judges have already talked about it today. Trees are often a source of discussion, unfortunately. Trees are often the victim of neighborhood quarrels, because if neighborhood quarrels arise, then the tree in question is examined closer and then it turns out to be, for example, not 2 meters, but only 1.85 meters from the plot limit. With a demand for rooting that tree, one tries to settle the neighbor's quarrels.

The existing law did not offer many possibilities to the judge in this regard. In fact, only robbing was possible, or a system of abuse of law had to be invoked. In that sense, we are satisfied that the current rules are somewhat relaxed, so that the judge also gets the opportunity to impose a cut-off. From now on, the judge may also take into account other elements. In consultation with the political groups, we have come to good solutions, so the Civil Code now stipulates that the judge must also take into account the public interest. That general interest can be broad, for example an environmental interest, a heritage interest, a landscape value. We also found each other there. Thus, such discussions are not limited to discussions between neighbors. The judge can and should take into account the public interest. This is also reflected in discussions about overhanging branches and tree roots. The importance cannot be underestimated. In this way, disputes can be resolved more easily or at least the judge has more opportunities to reach a solution.

We are ⁇ also satisfied with a ⁇ more symbolic change in the way we think about animals, fundamentally different from the way we thought about animals two centuries ago. The initial design already provided in a first amendment, that objects can be distinguished from animals, which in itself is already a new and very important element. We are pleased that another additional amendment was adopted, which recognizes that animals have feelings. The Civil Code states that animals have sensory and biological needs.

That is also about a phrase that occurs in the modern codes that have been accepted in recent years in the Netherlands, in Québec and in France. I think that in this regard we have now also taken the step towards the twenty-first century.

I have already seen enthusiastic reactions today from lawyers who call this vote historical. That made me think for a moment: would we have been able to make these changes to the Book of Goods of the Civil Code, if the government was not in ongoing affairs? If this had been a draft law and the majority had voted boldly and loyally on this text, would it have been open to the good adjustments made?

There are a number of good adjustments, such as the jurisdiction of the peace judge. Were they approved? I do not know. But I believe that the ongoing affairs have enabled Parliament to have more decision-making powers and thus have been able to make these adjustments to the draft, which may not have been possible in the past.

Do not misunderstand me, this is not a pretext to stay in ongoing affairs for months. I just want to say that sometimes it can still have benefits.

We will, of course, support this bill with great conviction.

Mr. Speaker, colleagues, the long-announced bill to introduce a book of Goods in our new Civil Code is actually a resumption of what was already on the shelf before the elections and this bill is also welcomed positively by the Flemish Interest. It has been achieved thanks to various experts who have thoroughly prepared all of this, conducted a thorough investigation and worked accurately to ensure legal certainty, stability and flexibility.

This can and could not always be said of the numerous other reforms which, during the last legislature, the Minister of Justice has often pursued by this Parliament on a dredge, unthinkingly and not always supported on a social level, resulting in numerous repair legislations and often especially great annoyance in the field among professionals who had to do so. But, colleagues, if it is good, it can and should also be said.

This new Code of Goods has a coherent, clear structure. Overall, it is a good proposal that I think will create a stable legal framework and hopefully will not give rise to repair legislation after it has been tested in practice.

The positive is that this new code does not change everything drastically and fundamentally. Most innovations are fully responsible, but existing practices that have proven useful continue to be ⁇ ined. It is not to change to change. The amendments made are functional and provide for the necessary modernization of the property law.

Colleagues, this bill was discussed very extensively in the Committee on Justice, following several interesting hearings in which all the invited have expressed themselves positively and have provided a number of useful and useful information. It is a positive proposal that forms a well-consolidated, coherent whole and provides answers to a number of gaps existing today in legislation. I have already said that it is a balanced proposal because it also provides answers to the current reality as it exists by 2020. The property law is finally regulated in a modern and relatively flexible way.

During the hearings, it has also been shown that this is also received positively by those who have knowledge of matters in the field to work with the new Code of Goods.

I will not go over this proposal here in detail. After all, there is a very clear and comprehensive report that is definitely worth reading.

Nevertheless, I would like to summarize a few points that are important for our group. First, the figure of the fiducie has disappeared from the proposal. This is very positive, as the hearings clearly showed that almost no one was in favour of this and that the fiscal consequences were unseen.

As colleague D’Haese has already said, the amendments made to the original proposals concerning the ownership of utility infrastructure can only be welcomed by our group. Indeed, there was legitimate criticism of what was originally determined and which could give rise to the marketing or mortgage of our public infrastructure or, worse, the possible disappearance of domestic control. The changes made sufficiently ensure that the public infrastructure – let’s not forget that this is paid with the taxpayer’s money – remains under domestic control.

There will also be a clear regulation for neighboring obstacles. The new code provides a number of solutions that hopefully will function properly in practice, which is not really the case today. The peacekeeper shall have exclusive jurisdiction, regardless of the value of the claim. That is a very good thing. The peacekeeper is best placed for this, is closest to the citizen and this code gives him sufficient flexibility to take appropriate measures.

We also consider positive the legal anchoring in order to take into account the original condition of the property from which the obstacle is caused in the event of disputes in neighboring relations. This creates a legal framework for existing practices.

Paying attention to preventive measures to prevent excessive neighboring impediment instead of acting purely curative, too, is positive. If this is applied wisely in practice, it can lead to a lot of misery between neighbors. In some situations, it is predictable that problems will occur. Prevention is still better than cure.

This code also pays much attention to a reform of the use of fruit and to the relationship with the sole owner, something which in practice has often given rise to numerous discussions and procedures, primarily in the family sphere and in the context of inheritance.

The jurisprudence was often very diverse, which led to a lot of legal uncertainty. Hopefully with this new regulation there will be a fundamental change and we will get the important legal certainty.

Also the clear delimitations of the regime in restoration works in the case of fruit use is a positive change. The uncertainty that exists today on the ground gives rise to a lot of uncertainty, discussions and procedures, the outcome of which is always unpredictable. Today, it is clearly defined who is responsible for what and that will promote legal certainty.

During the hearings, a number of comments were made here and there. Most of them were then taken into account in the amendment, and rightly. That is very positive. Unfortunately, some of the difficulties that were addressed during the hearings were not taken into account. I will limit myself to a few examples that are important.

First, there is the duration of the fruit use. Fusion and splitting have fortunately been eliminated as corporate operations that could end the use of fruit, but the declaration of bankruptcy and the voluntary, legal and judicial dissolution remain as termination grounds. However, fruit use is an asset component and, in principle, transferable. Given the functional approach of the right of goods, it is therefore not reasonable to have the use of fruit disappear together with the legal person. Our group regrets that this was not deleted.

As regards the inheritance lease, it is also a missed opportunity to make the abolition of the permanent inheritance right possible only after 99 years. It is unacceptable that 99 years must be waited with a cancellation if the basic conditions for such a lease right have already been abolished much earlier. Also, the requirement that even the potential utility must be lost in order for the cancellation to be pronounced is actually far too strict.

I also have some concerns regarding the right to rise and the fate of the unpaid rise. Article 3.179, despite the justified criticism of some speakers during the hearings, remained unchanged. That article aims to put an end to the controversy in the jurisprudence and jurisprudence relating to the land already planted or planted. This proposal removes the distinction between paid and unpaid upstakes. However, this distinction is relevant from different points of view. Instead of drastically removing the distinction, the bill would have better clarified the regime of unpaid upstakes.

However, it should not be intended that the holding holder who has not paid for the existing holding receives the same rights as the holding holder who has paid for it. There were good suggestions formulated, which the Justice Committee has unfortunately left behind. I therefore reiterate the concern that the text in practice will continue to give rise to many discussions and legal uncertainty.

Collega Van Hecke has already pointed out that in the book Goods attention is paid to animals. Over the past few days you have all been overwhelmed with emails to ask in the code attention for the animals. I am convinced that the text, as it is presented today, supports the expressed concerns. More and more attention is being paid to animal welfare. Reports of neglected and abused animals always give rise to great indignation among the population. Our group also pays extensive attention to animal welfare, as society increasingly considers animals as living beings with sensitivities and needs.

Animals are not objects. The bill now finally distinguishes objects from animals, which in the past was not the case. Objects and animals were placed in the same category. This is definitely a progress, but legal rules must also be established. The proposed scheme shall pay sufficient attention to animal welfare and clearly state that animals have a sensitivity and biological needs. It also expressly states that all legal and regulatory provisions for the protection of animals must be respected. Even more, they are of public order. It can’t be clearer, my colleagues.

I go around. Unfortunately, with the approval of the new Book of Goods, the work is not finished. A number of other legislative initiatives will need to be taken in order to make the Goods book function properly in practice. For example, I think of the regulation of a number of tax consequences that will arise from the new regulation or the adaptation of the cadastral documentation and the real estate publicity. Several other examples can be given. Colleagues, it is very important that the Minister first obtains the necessary advice from tax and other experts and will not go over the neck to avoid repair legislation.

I would like to conclude with a word of gratitude to the experts who prepared the bill in a very professional way and even wrote and accompanied the treatment during the various committee discussions. Their contributions and work were ⁇ valuable, for which we thank our group.

Our group will approve the proposal with great enthusiasm.

Mr. Speaker, colleagues, if some today say that the adoption of this text is a historical event, then I say that history is written every day. In any case, after about 200 years, we are finally laying new foundations for goods law.

It can be said that a long road has been taken. In politics, there is no copyright, but honour who deserves honour. In the last legislature, the present text has been prepared in the form of a preliminary draft law, a draft law in the process, in the Cabinet of Justice by the Minister together with various actors in the field. I thank them for that.

This legislative proposal – we have indeed had to convert the text into a legislative proposal in the light of the regime of ongoing affairs – had a great support. I would like to thank all colleagues across all party boundaries, because we have worked well together. We would better do that more.

I agree with the words of some colleagues, who have rightly paid tribute to the experts and professors who not only had an important hand in the texts, but also helped us in our committee work. I mention in particular Professor Pascale Lecocq and Professor Vincent Sagaert. Thanks to their contributions and technical answers to questions in the committee, the report is a very good source of law.

In our student years as lawyers, we have learned that the report is also a source of law.

Collega Van Hecke did here could of dark stories about his courses Business Law. Business law is indeed not the easiest subject, colleagues, because it creates many abstract business law structures in which a student cannot immediately imagine anything. But everybody is sometimes involved in everyday life in a dispute to which the property law applies. Therefore, it is important that we respond and adapt the rules, especially since society has changed in the last 200 years.

Colleagues, I would like to point out a few objectives for which I think future legislative texts are important. First, they integrate our property law and include, among other things, the inheritance lease, the settlement and the arrangement regarding found objects in the Civil Code. I would like to point out that in the future, goods law will be much better instrumentalised, making it much wider and much easier to apply in the legal practice. In the chapter on neighborhood relations, a number of concrete situations are now integrated.

The texts will also modernise the property law. That is logical and absolutely necessary: 200 years ago we lived in an agricultural society, now in a post-industrial society. I refer, among other things, to the reduction of the deadline for obtaining prescription and to the new possibilities for the use of public domain in private-public structures. A new balance must be found between the individual and the general interest. Colleague Van Hecke has already pointed out that the importance should not be underestimated. I assume that he meant the general interest, and in that case I agree.

With regard to the flexibility of the property law, it is a good thing that the will autonomy of the parties is strengthened.

Finally, I would like to illustrate with some concrete examples the importance of the new legislation. Consider the arrangement relating to found goods. Take an abandoned bicycle. In the past, it depended on whether the bicycle was found in private or in public domain. A private domain could be owned after thirty years. In the public domain, the municipality could sell the bicycle after three months and cut off its revenue.

It is obvious that the location where an abandoned object is found should not be relevant for its legal assessment. Later, the winner will have to try to deliver that bike to the legitimate owner. If it fails, it can be sold, while the original owner can claim the proceeds for five years. Of course, there should still be a reasonable reward and remain for the honest winner.

Second, as regards fruit use, the bare owners are responsible for the large repair costs. Consider, for example, the isolation standards imposed in the Flemish environmental legislation. Empty owners are required to invest in, among other things, a new roof, better insulation, double glass, in short, heavy insulation investments to meet the insulation standards, although they may never be able to use the property. With the new regulation, they can require the fruit user to contribute: proportionate, narrown depending on the value ratio of the fruit use versus the mere ownership.

Third, in the past, trees that stood too close to the boundary of a plot could only be ripped. Now there is also the option to cut them, taking into account the public interest. A tree in the centre of a municipality or city also has a social value. I once heard a mayor of a major Flemish municipality tell that a tree in a city is a work of art and is sensitive to the surrounding residents. Here the public interest plays a fundamental role.

Fourth, from now on, there is the possibility to make the right of asset permanent, which is not irrelevant in the context of corporate structures.

Finally, colleagues, we were not infested, then yet attributed via mail with pleasures related to the animals. It is actually intriest – we have to strike a mea culpa for it – that we have regarded animals as a matter for 200 years.

With the proposal, we corrected those mistakes and, in mutual consultation within the committee, we went even further. The recognition that animals have sensitivities and biological needs, and the need to deal with animals in a human and caring way, is a good thing.

Ladies and gentlemen, I will return to your last point. You asked if we could have made the adjustments across party boundaries if the government had not been in ongoing affairs. Well, the proof of the pudding is in the eating, let’s start that pudding as soon as possible.

In any case, we will approve the bill with great pleasure and enthusiasm.

We are all concerned with property law. This branch of law has existed since 1804. It was ⁇ appropriate to proceed with an update and adaptation to the 21st century. The PTB is pleased with this particular advance, related to animal welfare. We supported the amendment to Article 3.52 which formally recognizes that animals are not objects. Animals are, first and foremost, living beings with sensitivity, which we want to treat with respect. We have always been in favor of a coherent animal welfare policy, whether it be for livestock, laboratory or pet animals.

Our group too often observes that where the logic of profit prevails, the welfare of animals goes into the trap. Article 13 of the Treaty on the Functioning of the European Union states that animals are sensitive beings. It is also consistent with the legislation on animal welfare produced by the Brussels-Capital Region and the Walloon Region, which give animals a similar status.

As for trust, we oppose the introduction or generalization, to be quite accurate, of a new uncertain legal structure, the plus-value of which is not clear. It is also widely appreciated by tax havens. That is why we supported an amendment in the committee aimed at removing it from this code, and we continue to argue that it should not be.

However, a small reservation: we regret that this text remains very unreadable. Unreadable, I mean, it was prepared by and for specialists. The Civil Code is the basic code for all interactions between individuals. If there is a code that needs to be accessed, that is it.

We believe it is essential that all citizens can read and understand the law, apply it among themselves and thus avoid, as far as possible, the recourse to justice.

This subject covers issues such as neighborhood disturbances or co-ownership and therefore concerns everyone who buys an apartment. This is not only for notaries, geometers and project promoters. It is somewhat antidemocratic to write the text in such a technical, wooded and jargon-filled way.

I had asked in committee to make the language clearer and more accessible to everyone. This has not been heard and it is very regrettable.

Mr. Speaker, if it is true what colleague Van Hecke says, that the vote will soon survive us, because there it comes down, this will be a proof that this is indeed a good work.

I want to intervene very briefly. Sufficient colleagues have already demonstrated the essence of a number of topics. I find it appropriate for the sake of our group to thank the authors and the experts who have worked on this text, as well as the colleagues in the committee and the people who have come to the hearings.

They actually made this piece better. As colleague Verherstraeten later said, what is present now can be safely used as a good example of how the work in Parliament can be done. Especially through the interaction with non-parliamentarians and the experts who have worked on it.

I would like to make another substantive comment. There are so many aspects of this code that we have not cited in this plenary session but that can be important in people’s daily lives. There are important things in here. Animal welfare has been mentioned several times.

My only objection is that we have removed the chapter "fiducie" from the original design. This is not so obvious. It is probably actually more difficult to remove an entire chapter if there is a government, colleague Van Hecke.

I think it was common sense to remove this chapter. In the committee, I fully agreed with the arguments of Mr D’Haese. Unlike him, I hope it is more likely not to come back than to come back.

In any case, thank you very much to all who have contributed and for the way.

Mr. Speaker, I would simply like to emphasize, on behalf of my group, the importance of the work done by the expert group in writing the property law reform. Let them be grateful.

This large-scale reform allows to insert the right of goods in modernity and to be able to rely on the law, which was not the case for many years, so much as the jurisprudence had evolved the matter, but made the task of practitioners extremely difficult.

I would also like to thank the work of the House services, who have drafted an important high-quality legal note that helped the experts to refine their work.

My group will vote this text with enthusiasm.

Mr. Speaker, Ladies and Gentlemen, I am going exactly in the direction of what was said by my colleague. I will not be too long, as there are many arguments. But I would like to clarify that my group clearly and fully supports this bill which has been the subject of, indeed, an important legal work already in advance by the Commission for the Reform of Property Law under the authority of Prs Lecocq and Sagaert.

The enterprise reform responds to a triple need: transparency and legibility of our law, legal certainty and the necessary modernization of this famous book 3.

Two very concrete examples that made this modernization truly indispensable can be mentioned. First, the fact that the laws on the surface right and on the right of empitheosis have not been modified since their entry into force in 1825, as well as the right of usufruct considered in the Napoleonic Civil Code of 1804 in terms of contractual usufruit and often real estate, which underwent during the twentieth century many rather profound changes at the level of succession law.

Second, the status of animals. This point has been mentioned by some of my colleagues; it is essential. We are indeed happy to see animals considered no longer as things, but as beings endowed with sensitivity and having biological needs. Not only because my group included this amendment in a bill, which had already been deposited in the previous legislature, but also because we comply with the Lisbon Treaty, which describes animals held and used by people as sensitive beings.

It will now be necessary to ensure – as we also indicated in our bill – that the appropriation of animals will always be carried out in accordance with the provisions on sale and lease provided by the Civil Code, but also by the rules established by the competent authorities, i.e. federal entities, in the field of animal protection.

The considerable legal work that has been carried out by the House Legal Service – which I thank – regarding the articles of the bill submitted to our review truly deserves to be welcomed.

Therefore, there is no doubt that the integration of Book 3 into the Civil Code will ensure that the latter is more adaptable to the society of the 21st century.