Draft Bill Amending Bankruptcy Law
On 26 February 2013, a draft bill (the “Draft Bill”) amending the bankruptcy law of 8 August 1997 (the “Bankruptcy Law”) was submitted to the House of Representatives (Kamer van volksvertegenwoordigers/Chambre des représentants).
Under the current Bankruptcy Law, a private individual who provides a personal guarantee for a bankrupt party may request the Court to be discharged from his or her obligations in case such obligations are considered to be disproportionate compared to his or her income and property. The Bankruptcy Law provides that the guarantor should, amongst others, (i) file a statement (verklaring/declaration) confirming the above and (ii) submit a copy of his or her most recent personal income tax slip (aangifte in de personenbelasting/declaration à l’impôt des personnes physiques).
However, the current terminology under the Bankruptcy Law (i.e., the reference to the statement to be filed by the guarantor) is not in line with to the terminology of the Judicial Code (Gerechtelijk Wetboek/Code Judiciaire). Further, the tax slip to be submitted is considered to be a unilateral document which is not regarded as conclusive for evidentiary purposes. Finally, the different interpretations given by the Courts and the resulting legal uncertainty gave rise to a judgment of the Constitutional Court (Grondwettelijk Hof/Cour Constitutionnelle) on 18 May 2011.
To remedy these problems, the Draft Bill will replace the term ”statement” by the term “request” (verzoekschrift/requête) and the term “personal income tax slip” by the term “tax assessment” (aanslag/avertissement-extrait de rôle).
Draft Bill Amending Law on Continuity of Enterprises
On 12 March 2013, a draft bill (the “Draft Bill”) amending the law of 31 January 2009 on the continuity of enterprises (Wet betreffende de continuïteit van de ondernemingen/Loi relative à la continuité des enterprises; the “Law”) was submitted to the House of Representatives (Kamer van volksvertegenwoordigers/Chambre des représentants). The Draft Bill forms part of the judicial reorganisation which allows enterprises that are temporarily unable to pay their debts to continue their activities.
As a final analysis of the Law would be premature after only four years, especially considering the length of the periods of suspension of payment of debts (between six months and one and a half year) and of the implementation of reorganisation plans (up to five years), the Draft Bill does not amend the fundamental principles of the Law. The Draft Bill mainly:
- extends the scope of the Law to farmers (see also a recent judgment of the Constitutional Court (Grondwettelijk Hof/Cour Constitutionnelle) dated 28 February 2013 in this respect) and extends the discharge system to spouse, former spouse, etc., as provided by the bankruptcy law of 8 August 1997 (Faillissementswet/Loi sur les faillites);
- improves the prevention and detection of companies in difficulty;
- improves access to file by creating an electronic file and, therefore, better information for creditors;
- attempts to end abuse, including untimely, reckless or misleading requests, thereby improving the protection of creditors and employees;
- strengthens the prevention of distortion of competition and ensures that the system is not rendered ineffective by statutory provisions or specific practices affecting the rights of creditors in favour of some of them;
- amends the Law regarding employees’ rights in the event of a change of employer following a transfer by operation of law pursuant to collective labour agreement (collectieve arbeidsovereenkomst/Convention collective de travail) No. 102; and
- regulates and reinforces the position of the works council and the committee for prevention and protection at work in case of transfer by operation of law.
