belgiquelex.be - Carrefour Bank of Legislation

27 MAI 2013. - An Act to amend various business continuity legislation

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Act of 31 January 2009 on business continuity
Art. 2. In section 2, (c), of the Business Continuity Act of January 31, 2009, the word "judicial" is inserted between the words "decisions" and the words "taken within the framework".
Art. 3. In the same Act, an article 2/1 is inserted as follows:
"Art. 2/1. Without prejudice to the nature of the claims arising from successive benefits contracts and the effect, on the receivable, of a payment made after the commencement of the proceedings, the nature of the receivable is determined at the time of the commencement of the proceedings. "
Art. 4. In section 3 of the Act, the words "farers" are inserted between the words "trade code" and the words "farm society".
Art. 5. In section 5 of the Act, paragraph 5 is replaced by the following:
"Any interested person may intervene voluntarily in the procedures provided for in this Act only by a request containing, as a matter of nullity, the means and conclusions. Forced intervention is only possible by voluntary summons or appearance in accordance with Article 706 of the Judicial Code. "
Art. 6. In section 6 of the Act, paragraph 3 is replaced by the following:
"A notification is made by regular mail or by e-mail. "
Art. 7. In the same Act, an article 6/1 is inserted as follows:
"Art. 6/1. § 1^er. The King may determine, after receiving the opinion of the Privacy Commission, the conditions to which declarations, communications and notifications must be satisfied that, under the law, may be made electronically, in order to ensure that they are effectively emanating from the person who makes them, or that the recipient has actually become aware of it.
§ 2. The King may also, without compel anyone to perform a legal act electronically when a legal provision does not provide for it, adapt within eighteen months after the entry into force of this section any legal provision that would constitute a barrier to the electronic regulation of judicial reorganization procedures.
Royal orders taken in accordance with paragraph 1^erare repealed if they have not been confirmed by a law within fifteen months of their publication to the Belgian Monitor. "
Art. 8. The following amendments are made to section 10 of the Act:
(a) in paragraph 3, the words "two quarters" are replaced by the words "one quarter";
(b) in paragraph 4, the words "two quarters" are replaced by the words "one quarter";
(c) a paragraph to read is inserted between paragraphs 4 and 5:
"The external accountant, the external tax board, the external authorized accountant, the external registered accountant, the external registered accountant and the auditor of companies who observe in the course of their mission serious and consistent facts that may jeopardize the continuity of the debtor's business, inform the debtor in a circumstantial manner, if any through its management body. If within one month of the date of the information made to the debtor, the debtor does not take the necessary steps to ensure continuity of the business for a minimum period of twelve months, the external auditor, the external tax board or the enterprise reviewer may notify the President of the business court in writing. In this case, section 458 of the Penal Code is not applicable. "
Art. 9. In section 12 of the Act, the following amendments are made:
(a) in paragraph 1^era sub-item is inserted between paragraphs 4 and 5:
"The judge may collect information from the external accountant, the external tax board, the external authorized accountant, the external registered accountant and the debtor's corporate reviewer about the recommendations they have made to the debtor and, where appropriate, the measures that have been taken to ensure continuity of the business. In this case, section 458 of the Penal Code is not applicable. »;
(b) in paragraph 1^er, paragraph 5, the words "by twice" are deleted and the paragraph is supplemented by the following: "The assistance of a clerk is not required. The judge will be able to draw up only minutes of his findings and statements. »;
(c) Paragraph 4 is replaced by the following:
Ҥ4. The judge completes the examination within four months. When the judge has completed this review, the judge shall prepare a report on the transactions completed within the above-mentioned period and shall include its conclusions. The report is attached to the data collected and communicated to the Commercial Investigation Board, the Tribunal Chair and the Public Prosecutor's Office. The Commercial Investigation Board may decide to extend the examination for a period not exceeding four months. "
Art. 10. In section 17 of the Act, the following amendments are made:
(a) in paragraph 2, the introductory sentence shall be replaced by the following: "Unfortunately inadmissible, it shall attach to its request:"
(b) in paragraph 2, the 3° shall be replaced by the following:
"3° the indication of an e-mail address to which it may be attached as long as the procedure and from which it may acknowledge receipt of communications; »;
"(c) in paragraph 2, 4°, the words "that should have been deposited in accordance with the statutes, as well as the annual accounts of the last fiscal year, which may not have been deposited" are inserted between the words "the last two annual accounts" and the words "or, if the debtor";
(d) in paragraph 2, the 5° shall be replaced by the following:
"5° an accounting situation that reflects the assets and liabilities and the results account that are not more than three months old, established under the supervision of a business reviewer, an external accountant, an external registered accountant or an external registered accountant; »;
(e) in paragraph 2, the 6° shall be replaced by the following:
"6° a budget containing an estimate of revenues and expenses for the minimum duration of the stay requested, prepared with the assistance of an external auditor, an external registered tax accountant or a business reviewer; on the advice of the Accounting Standards Commission, the King may establish a budget forecast model; »;
(f) in paragraph 2, 8°, the words "if it is in a position to formulate them" are repealed;
(g) in paragraph 2, the 10th is repealed;
(h) Operative paragraph 2 is supplemented by the following subparagraph:
"In addition, the debtor may attach to his request any other documents that he deems useful to stir him up. »;
(i) in paragraph 3, paragraph 2, the words "In the twenty-four hours" are replaced by the words "In the forty-eight hours";
(j) Paragraph 4 is repealed.
Art. 11. Section 20 of the Act is replaced by the following:
"Art. 20. § 1^er. The Registry shall be held a record of the reorganization of the judiciary containing all the elements relating to the proceedings and the merits of the case, including the reports of the provisional administrators and legal agents, as well as the reports of the delegated judge and the notices of the public prosecutor.
§ 2. The filing of a title by the creditor on the record of the judicial reorganization, whether materially or electronically, interrupts the limitation of the receivable. It is also worthwhile.
§ 3. The King sets the time when records or parts of them can be viewed electronically remotely.
§ 4. Each party to the proceedings and any creditor taken from the list referred to in Article 17, § 2, 7°, may take note of the file.
Any other person with a legitimate interest may, by an application addressed to the delegated judge, request that he or she be aware of the file or part of that file.
§ 5. The remote consultation of the electronic file or the issuance of a copy of the file on a material medium will result in the payment of a royalty that is set by the King. Consultation on the file is free of charge for the categories of persons or institutions determined by the King.
§ 6. The King determines, on the advice of the Privacy Commission, how access to the file referred to in this article is granted, what data is only available in a limited manner and how the confidentiality and retention of the file will be guaranteed. "
Art. 12. In section 21 of the Act, the words "the court" are replaced by the words "the court or the delegated judge".
Art. 13. Section 23 of the Act is replaced by the following:
“Art. 23. § 1^er. The procedure for judicial reorganization is open as soon as the business continuity is threatened, at short notice or in term, and the request referred to in Article 17, § 1 was filed.^er.
§ 2. When the debtor is a legal entity, the business continuity is in any case presumed to be threatened if the losses reduced the net assets to less than half of the social capital.
§ 3. The bankruptcy of the debtor does not in itself hinder the opening or continuation of the judicial reorganization procedure.
§ 4. The absence of the parts referred to in Article 17, § 2, does not hinder the application of Article 59, § 2.
§ 5. If the application arises from a debtor who has already sought and obtained the opening of a judicial reorganization procedure less than three years earlier, the judicial reorganization procedure can only be opened if it tends to transfer, under judicial authority, all or part of the enterprise or its activities.
If the application arises from a debtor who has already sought and obtained the opening of a judicial reorganization procedure more than three but less than five years earlier, the new procedure of judicial reorganization cannot challenge the creditors obtained in the previous proceedings. "
Art. 14. The following amendments are made to section 24 of the Act:
(a) Paragraph 1^eris replaced by the following:
« § 1^er. The court proceeds to review the application for judicial reorganization within fourteen days of its filing at the Registry.
Unless he renounced the summons, the debtor shall be summoned by the clerk no later than three frank days before the hearing.
The debtor is heard in the board's chamber, unless he has expressly expressed his will to be heard in public hearing.
The delegated judge heard in his report, the court ruled by judgment within eight days of the examination of the application. If an omission or irregularity in the filing of documents is not of such a nature that it prevents the court from examining whether the conditions set out in section 23 are met and if it can be repaired by the debtor, the court may, after hearing the debtor, put the case on a continuing basis or enforce section 769, paragraph 2, of the Judicial Code. »;
(b) the article is supplemented by a paragraph 4, which reads as follows:
Ҥ4. The court may, in the judgment which declares the reorganization proceedings open or in any subsequent decision, impose additional information obligations on the debtor to facilitate the follow-up of the proceedings.
In particular, the court may require the debtor to file a list of creditors in the file at the time it specifies. The King may determine how the list must be filed.
If the debtor fails to comply with these obligations, the court may act as provided for in section 41 or may, if any, refuse to extend the stay sought under section 38. "
Art. 15. The following amendments are made to section 26 of the Act:
(a) in paragraph 1^er, paragraph 2, 3°, the words "their address" are replaced by the words "the e-mail address to which electronic communications intended for the delegated judge must be addressed and the address of the legal representative";
(b) in paragraph 1^er, paragraph 2, 4°, the words "the purpose or objectives of the procedure" are inserted between the number "4°" and the words "the maturity of";
(c) Paragraph 1^er, paragraph 2, shall be supplemented by a 6th written as follows:
"6° where applicable, the terms and conditions of access to the electronic file. »;
(d) Operative paragraph 2 is supplemented by five subparagraphs as follows:
"In addition, he encloses the list of creditors referred to in Article 17, § 2, 7°.
The communication referred to in this paragraph may be made electronically.
The debtor shall transmit to the clerk, either electronically or on a material medium, a copy of the communication referred to in this section, so that it may be placed on the record referred to in Article 20.
The debtor shall transmit to the Registry, in order to be paid to the record referred to in Article 20, any acknowledgement of receipt or any observation made by a creditor with respect to that communication.
The King may specify which elements should be included in the communication and the model according to which it should be drafted. "
Art. 16. Section 28 of the Act is replaced by the following:
“Art. 28. § 1^er. In the event of a serious and characterized breach of the debtor or of any of its organs, the court may designate, for the duration of the stay, one or more legal agents that it assigns to a mission to which it specifically determines the extent and duration of the stay.
§ 2. In the event of a serious and characterized or manifest bad faith of the debtor or of any of its organs, the court may substitute for them, for the duration of the stay, a provisional administrator responsible for administering the business of the natural person or the legal person.
§ 3. The court shall rule at the request of any interested person or public prosecutor, in the judgment that opens the procedure for judicial reorganization or in a subsequent judgment, the debtor heard in his capacity and the delegated judge heard in his report.
To the extent that the application is based on faults attributed to a specified natural or legal person, other than the debtor, that person must be called in forced intervention by the debtor.
§ 4. At any time during the stay, the court, apprehended and deciding in the same manner and on the report of the agent of justice or the provisional administrator, may withdraw the decision made pursuant to paragraphs 1^er and 2, or amend the powers of the judicial officer or the provisional administrator.
§ 5. These decisions are published in accordance with Article 26, § 1^erand notified in accordance with Article 26, § 3.
§ 6. These provisions shall not prejudice the common law actions to appoint judicial agents, whether or not as provisional administrator.
§ 7. The judgements rendered pursuant to paragraph 1^er are not subject to opposition.
§ 8. The appeal is filed by request filed at the Court of Appeal Registry within eight days of the notice of the judgment. The Clerk of the Court of Appeal notifies the request under judicial fold to the eventual intimidated party and, if applicable, by ordinary fold to his lawyer, no later than the first working day following the filing of the request. "
Art. 17. Section 32 of the Act is replaced by the following:
“Art. 32. The stay does not affect the fate of the receivables specifically mitigated since the time of the pledge's constitution. Claims that are part of a pledged trade fund are, as such, not considered to be specifically secured. "
Art. 18. Section 33 of the Act is replaced by the following:
“Art. 33. § 1^er. The stay does not constitute an obstacle to the voluntary payment of superstitious claims by the debtor to the extent that this payment is necessary for the business continuity.
§ 2. The stay benefits the spouse, ex-spouse or legal cohabitant of the debtor, who is co-ordinated, by the effects of the law, to the debts of his spouse, ex-spouse or legal cohabitant.
This protection may not benefit the legal cohabitant whose declaration of legal cohabitation was made within six months of the introduction of the request to initiate a judicial reorganization procedure referred to in Article 17, § 1^er.
§ 3. Without prejudice to articles 2043bis to 2043octies of the Civil Code, the stay does not benefit the co-debiters or personal security debtors.
The natural person who has constituted a personal security right of the debtor free of charge may nevertheless ask the court that it is found that the amount of personal security is manifestly disproportionate to his/her faculties, at the time of granting the stay, of repayment of the debt, this ability to appreciate both its movable and immovable property and its income, and thus can benefit from the stay.
§ 4. Deficit claims are not taken into account in public procurement regulations to determine whether or not the debtor complies with the terms and conditions for the reimbursement of the claims concerned. The National Social Security Office or Tax Administration do not mention these claims in the certificates they issue.
§ 5. The direct action instituted by Article 1798 of the Civil Code is not hampered by the judgment which declared open the judicial reorganization of the contractor, nor by the decisions taken by the court during the latter or taken by application of Article 59, § 2.
§ 6. Sections 17, 2°, and 18 of the Bankruptcy Act of 8 August 1997 are not applicable to payments made during the stay period. "
Art. 19. The following amendments are made to section 35 of the Act:
(a) in paragraph 1^er, paragraph 2, the words "by executing" are inserted between the words "end of default" and the words "within fifteen days";
(b) in paragraph 2, a paragraph reading is inserted between subparagraphs 1^er and 2:
"The exercise of this right does not deprive the creditor of the right to suspend its own benefits. "
Art. 20. In section 36 of the Act, the words "contractually enforceable" are inserted between the words "interest" and the words "to the extent".
Art. 21. Section 38 of the Act makes the following amendments:
(a) Paragraph 1^er is supplemented by a paragraph that reads as follows:
"The request must be filed, under penalty of inadmissibility, no later than 14 days before the expiry of the period granted. »;
(b) the article is supplemented by a paragraph 4, which reads as follows:
Ҥ4. The judgment prorogating the stay is published by extract, by the clerk's diligence and within five days of its date, by the Belgian Monitor. "
Art. 22. Article 39, paragraph 1^er, the same law is supplemented by a 3° written as follows:
"3° if he has sought a judicial reorganization to carry out a business transfer under the authority of justice, in power, when the transfer relates only to part of the heritage of the legal person, propose a reorganization plan for the balance of the heritage. "
Art. 23. Section 41 of the Act is replaced by the following:
"Art. 41. § 1^er. Where the debtor is clearly no longer in a position to ensure continuity of any or all of his or her business or activities in relation to the purpose of the proceedings or when the information provided to the delegated judge, the court or creditors at the time of filing the request or subsequently is manifestly incomplete or inaccurate, the court may order the early termination of the judicial reorganization proceedings by a judgment that closes it.
§ 2. The court shall decide upon a request from the debtor, on a summons from the public prosecutor or any interested person directed against the debtor, the delegated judge heard in his report and the public prosecutor in his opinion.
In such a case, the court may make a judgment on the bankruptcy of the debtor or, if it is a corporation, the judicial liquidation, where the application also tends to that end and the conditions are met.
§ 3. When the delegated judge considers that the early termination of the judicial reorganization procedure is justified under paragraph 1^er, it prepares a report that it communicates to the debtor, the president of the court and the public prosecutor.
The debtor is summoned to appear in court within eight days of the communication of the report. The judicial fold mentions that the debtor will be heard at the hearing and that the public prosecutor may request that the judicial reorganization proceedings be terminated.
At the hearing, the debtor is heard and the Public Prosecutor's Office is heard in the opinion of the Public Prosecutor and may request, where appropriate, the early termination of the proceedings.
§ 4. The judgment is published in accordance with the terms provided for in Article 26, § 1^erand notified by judicial fold to the debtor. "
Art. 24. In section 44 of the Act the word "fourteen" is replaced by the word "twenty".
Art. 25. Section 45 of the Act is supplemented by four paragraphs written as follows:
"The communication can be made electronically.
The debtor shall transmit to the clerk, either electronically or on a material medium, a copy of the communication referred to in this section, so that it may be placed on the record referred to in Article 20.
The debtor shall transmit to the Registry, for payment to the record referred to in Article 20, any acknowledgement of receipt or any comment made by a creditor with respect to that communication.
The King may specify what elements should be included in the communication and how it should be done. "
Art. 26. The following amendments are made to section 46 of the Act:
(a) Paragraph 1^er is supplemented by two subparagraphs as follows:
"The court may, no later than fifteen days before the hearing referred to in section 53 and on the report of the delegated judge, decide, by order made at the concordant request of the creditor and the debtor, to change the amount and qualities of the receivable initially fixed by the debtor. In this case, the Registry shall notify the creditor concerned of the amount and the characteristics of its receivable.
If the creditor has not filed a dispute before the court for fourteen days before the hearing referred to in section 53, the creditor shall, without prejudice to paragraph 4, vote and be resumed in the plan only for the amount proposed by the debtor in his communication referred to in section 45. »;
(b) Operative paragraph 6 is supplemented by the following subparagraph:
"When the debtor corrects or completes the list after the clerk has made the communication referred to in section 53 or when the court has rendered a decision in accordance with paragraph 4, the Registrar shall notify the creditors that the list has been corrected or completed. This communication may be made by ordinary or electronic fold, under the conditions specified in Article 26. "
Art. 27. In the same Act, an article 49/1 is inserted as follows:
"Art. 49/1. Proposals include for all creditors a payment proposal that cannot be less than 15 percent of the amount of the receivable.
If the plan provides for differential treatment of creditors, it may not grant public creditors with general privilege less favourable treatment than that granted to the most favoured ordinary creditors. A lower percentage may be provided in accordance with paragraph 3 and for strict reasons.
The plan may propose in a reasoned manner lower percentages in favour of the creditors or categories of creditors mentioned above on the basis of compelling and motivated requirements related to business continuity.
The plan may not contain any reduction or abandonment of claims arising from work benefits prior to the commencement of the proceedings.
The plan cannot provide for a reduction in food debts or debts that result for the debtor of the obligation to repair the damage caused by his fault and related to the death or injury to a person's physical integrity.
The reorganization plan cannot provide for a reduction or suppression of criminal fines. "
Art. 28. Section 55 of the Act is replaced by the following:
"Art. 55. § 1^er. In the fourteen days of the hearing, and in any case before the expiry of the stay fixed by application of Articles 24, § 2, and 38, the court decides whether or not it approves the reorganization plan.
§ 2. If the court considers that the formalities have not been complied with or the plan infringes public order, it may, by reasoned decision and before deciding, authorize the debtor to propose to the creditors a reorganization plan adapted according to the formalities of section 53. In this case, the Committee decides that the period of stay is extended, without the maximum period set out in article 38 being exceeded. It also sets out the date of the hearing to which the vote will be taken on the plan. Decisions rendered under this subsection are not subject to opposition or appeal.
§ 3. The registration may only be refused in the event of failure to comply with the formalities required by this Act or for violation of public order.
It may not be subordinated to any condition that is not provided for in the reorganization plan or make any modifications to it.
§ 4. Subject to the challenges arising from the execution of the reorganization plan, the ruling on the registration closes the reorganization procedure.
It is published by extract to the Belgian Monitor by the clerk. "
Art. 29. In the same Act, an article 55/1 is inserted as follows:
"Art. 55/1. The court shall rule on the registration notwithstanding any prosecution against the debtor or its leaders. "
Art. 30. In section 56, paragraph 2, of the Act, the sentence "The appeal shall be filed by request filed at the court of appeal within eight days of the notice of the judgment and shall be directed against the debtor or against the creditors, as the case may be. "The appeal shall be filed by request filed at the court of appeal within fifteen days of the notification of the judgment and shall be directed against the debtor alone, in the event of registration, or against the parties who intervened during the reorganization procedure by way of request, in the event of the rejection of the registration. The parties to the appeal may call the other parties in intervention. The appeal may be appealed even before the publication of the judgment concerning the registration. The Court of Appeal is an emergency statue on the appeal. "
Art. 31. In section 58 of the Act, the following amendments are made:
(a) paragraph 4 is supplemented by the following sentence:
"Revocation implies that the debtor and the creditors find themselves, apart from the above-mentioned elements, in the position they would have had if there had been no approved reorganization plan. »;
(b) the article shall be supplemented by a paragraph 5, which reads as follows:
"The court may, on its own motion, call the debtor annually to report on the performance of the collective agreement on the first anniversary of the registration decision. The debtor's statements are made by the Clerk to be filed in the record of the reorganization. "
Art. 32. Section 61 of the Act is replaced by the following:
"Art. 61. § 1^er. Without prejudice to the provisions of this Act, a collective labour agreement concluded within the National Labour Council and made mandatory by the King specifies the modalities for the transfer of the rights and obligations of the workers concerned by a transfer of enterprise under the authority of justice.
§ 2. The collective agreement referred to in paragraph 1^er Rule:
1° the information of the workers involved in a transfer under the authority of justice when there is no business council or union delegation in the company;
2° the information that the legal agent must, on the basis of the information that the debtor must provide, forward to the assignee and the workers concerned;
3° the maintenance of the rights and obligations of workers concerned by a transfer under judicial authority, including the possibility of derogations;
4° the choice of workers to be taken up;
5° the terms and conditions for the conclusion of a proposed transfer agreement between the debtor or the agent of justice and the assignee and the content of this agreement with respect to the rights and obligations of the resumed workers;
6° the fate of the debts to the workers taken over.
§ 3. The choice of workers to be taken over by the assignee rests with the latter.
The choice of the assignee must be dictated by technical, economic or organisational reasons and be made without prohibited differentiation.
In particular, workers' representatives in the transferred company or the transferred part of business may not be subject to differential treatment solely because of their activity as a representative of workers in the transferred company or the transferred part of business.
Unless otherwise proved, the absence of prohibited differentiation is presumed to be established if the proportion, prior to the transfer under the authority of justice, between the employed persons in the transferred business or the transferred business party and their representatives in the organs of that enterprise or part of enterprise remains respected after the transfer.
§ 4. The collective agreement referred to in paragraph 1^er may grant the assignee and the resumed worker the opportunity to modify the individual employment contract at the time the transfer under the authority of justice takes place, provided that the modifications made are mainly related to technical, economic or organizational reasons.
§ 5. The assignee, the debtor or the agent of justice, may apply by request to the Labour Court of the head office or the principal institution of the debtor, for the approval of the proposed transfer agreement referred to in paragraph 2, 5°.
The Labour Court verifies whether the legal conditions have been met by the signatory parties and whether the public order has been met.
The court ruled urgently after hearing the workers ' representatives and the complainant.
§ 6. If the registration is granted, the assignee may not be held in debts and obligations other than those contained in the agreement whose registration is requested. The implementation of the amendments to the collectively agreed or collectively applied terms and conditions of work is subject to the suspensive condition of the conclusion of a collective labour agreement that reproduces the terms. "
Art. 33. Section 62 of the Act is replaced by the following:
"Art. 62. The designated justice agent organizes and executes the transfer ordered by the court by the sale or transfer of the necessary or useful movable or immovable assets to the maintenance of all or part of the business activity of the enterprise.
It seeks and solicits offers by ensuring, above all, the maintenance of all or part of the business while respecting the rights of creditors.
He chooses to proceed with the sale or sale publicly or voluntarily, in which case he defines in his tender the procedure to be followed by the offerers. In particular, it sets out the ultimate time limit in which offers must be communicated to it, beyond which no new offers can be considered. If he intends to communicate an offer to other bidders to organize one or more trenches, he will report it and specify how these bidders will be organized. It sets out, where applicable, the guarantees of employment and payment of the selling price and the projects and business plans that must be communicated. In order for an offer to be taken into account, the price offered for all assets sold or disposed of must be equal to or greater than the alleged forced realization value in the event of bankruptcy or liquidation.
In the event that an offer emanates from persons who exercise or have exercised control of the company and, at the same time, through other legal persons, exercise control over the rights necessary for the continuation of its activities, this offer may only be taken into consideration provided that these rights are accessible under the same conditions to other offerers.
In the case of a plurality of comparable offers, the priority is given by the agent to that which guarantees the permanence of employment by a social agreement.
To this end, the designated justice agent develops one or more concomitant or successive sales projects, exposing its diligence, the conditions of the proposed sale and the justification of its projects, and joining a draft act for each sale.
He communicates his projects to the delegated judge and, by contradictory request, notified to the debtor at least two days before the hearing, he requests the court to proceed with the execution of the proposed sale.
No offer or modification of offer after this request may be considered by the court. "
Art. 34. In Article 64, § 1^erParagraph 1^erin the same law, the words "section 62, paragraph 4" are replaced by the words "section 62, paragraph 7".
Art. 35. In section 65 of the Act, paragraph 3 is replaced by the following:
"The price of the buildings included in the transfer is collected and then distributed by the notary committed in accordance with articles 1639 et seq. of the Judicial Code. The balance shall be transmitted, after the mortgage registrations have been made, to the justice agent in order to be included in the statement of breakdown. "
Art. 36. In the same Act, an article 67/1 is inserted as follows:
"Art. 67/1. If the debtor is declared in bankruptcy or in judicial liquidation before the justice agent has fully fulfilled his or her mandate, the justice agent asks the court to discharge him. The court may decide, on the basis of the report of the delegated judge, that the agent may complete certain tasks. The justice agent shall, in all cases, transmit the proceeds of transfers to the curator or liquidator for distribution.
The fees of the justice agent are charged to those of the curator and the liquidator. "
Art. 37. Section 69 of the Act is supplemented by two paragraphs written as follows:
"From the judgment referred to in Article 60, the judgment shall be suspended until the judgment referred to in Article 67, paragraph 3, all the ways in which the head of the sursitious debts to the spouse, ex-spouse and legal co-habitant of the debtor is co-ordinated by the effect of that quality, to the debt of his spouse, ex-spouse or legal co-habitant.
This protection cannot benefit the legal cohabitant whose declaration of legal cohabitation was made within six months of the introduction of the application to initiate a judicial reorganization under Article 17. "
Art. 38. In section 70 of the Act, paragraph 4 is replaced by the following:
"If it is discharged, the debtor can no longer be prosecuted by its creditors. This discharge frees the spouse, ex-spouse or legal co-habitant of the debtor, together with the debt of the spouse, ex-spouse or legal co-habitant, of that obligation.
This landfill cannot benefit the legal cohabitant whose declaration of legal cohabitation was made within six months of the introduction of the request to open a judicial reorganization procedure referred to in Article 17.
The discharge does not benefit the co-debiters and debtors of personal security rights, without prejudice to the application of articles 2043 bis to 2043octies of the Civil Code. "
Art. 39. In section 71 of the Act, the following amendments are made:
(a) in paragraph 2, paragraph 2 is replaced by the following:
"The King shall determine the rules and scales applicable to judicial agents designated under articles 27, 28 and 60. It may determine those and those applicable to provisional directors designated under section 28. »;
(b) in paragraph 3, paragraph 2, the words "in the court" are inserted between the words "is directed" and the words "in the form".
CHAPTER 3 - Amendments to the Income Tax Code 1992
and the Code of Registration, Mortgage and Registry Rights
Art. 40. In section 402, § 4, last paragraph, of the Income Tax Code 1992, replaced by the program law of April 27, 2007, the words "and excess debts during the period of stay referred to in the law of January 31, 2009 on business continuity" are inserted between the words "duly respected" and the words "are not considered".
Art. 41. In section 408 of the same Code, replaced by the Royal Decree of 26 December 1998 and amended by the Act of 14 April 2011, the words "or procedure for judicial reorganization" are repealed.
Art. 42. In title I^er, Chapter VI, of the Code of Registration, Mortgage and Registry Rights, an article 161/1 is inserted, as follows:
“Art. 161/1. Without prejudice to section 162, 51°, are exempted from registration rights not covered by section 3 of the special law of 16 January 1989 relating to the financing of communities and regions, acts, judgments and judgments relating to the procedure of judicial reorganization introduced in accordance with the law of 31 January 2009 on business continuity. "
Art. 43. Article 162 of the same Code is supplemented by a 51° written as follows:
« 51° Proceedings, judgments, and judgements relating to the procedure for judicial reorganization introduced in accordance with the Act of 31 January 2009 on business continuity, except:
(a) acts that constitute a convention subject to a right of registration referred to in section 3 of the special law of 16 January 1989 relating to the financing of communities and regions;
(b) the judgements and judgements referred to in articles 146 and 147. "
Art. 44. In title III, chapter I^er, section I^re, of the same Code, an article 269/4 is inserted as follows:
“Art. 269/4. For each registration of an application for the opening of a judicial reorganization procedure referred to in sections 17 and 59 of the Business Continuity Act of 31 January 2009, a fee of 1,000 euros is collected. "
Art. 45. Section 281 of the same Code, repealed by the Royal Decree of 28 May 2003, is reinstated in the following wording:
“Art. 281. Without prejudice to section 269/4, are free from transplant rights, acts, judgments, and judgments relating to the judicial reorganization procedure introduced in accordance with the Business Continuity Act of 31 January 2009. "
CHAPTER 4. - Amendment of the Bankruptcy Act of 8 August 1997
Art. 46. In Article 8, paragraph 1^er, the Bankruptcy Act of August 8, 1997, replaced by the Act of January 31, 2009, the words "and that is urgent" are repealed.
CHAPTER 5. - Amendments to the Act of 27 June 1969 revising the Decree-Law of 28 December 1944 concerning the social security of workers
Art. 47. In article 30bis, § 11, of the law of 27 June 1969 revising the Decree-Law of 28 December 1944 concerning the social security of workers, replaced by the law of 27 April 2007 and amended by the law of 14 April 2011, the words "or procedure in judicial reorganization" are repealed.
Art. 48. In section 41quinquies, § 4, of the same law, inserted by the law of July 3, 2005, the words "sentence commissioner" are replaced by the words "a judicial agent".
CHAPTER 6. - Amendments to social law
Art. 49. In section 14 of the Act of 20 September 1948 on the organization of the economy, last amended by the Act of 30 December 2009, the following amendments are made:
(a) in paragraph 1^erParagraph 2, the words " §§ 10 and 11 " are replaced by the words " §§ 10, 11 and 12 " ;
(b) Paragraph 6 is replaced by the following:
“§ 6. The calculation of the number of workers usually occupied on average, referred to in §§ 1^er and 2, shall be carried out over a period of reference determined by the King; in the event of a contractual transfer of business, within the meaning of Article 21, § 10, or in the case of a transfer under the authority of justice, within the meaning of Article 21, § 12, during that period of reference, it shall be taken into account only the part of the period of reference after the transfer of the contract or after the transfer under the authority of justice. "
Art. 50. In section 18 of the Act, amended by the Acts of 28 January 1963, 5 March 1999 and 27 December 2006, the following amendments are made:
(a) paragraph 3 is supplemented by the words "or § 12";
(b) in paragraph 4, the words "or subject to judicial agreement" are repealed.
Art. 51. Section 21 of the Act, last amended by the Act of 11 July 2006, is supplemented by a paragraph 12 as follows:
Ҥ 12. For the purposes of this paragraph, "business" means the legal entity.
The fate of the existing business council at the time of a judicial reorganization by transfer under judicial authority within the meaning of the Act of January 31, 2009 on business continuity is governed, unless the parties to the transfer agreement otherwise have agreed, by the following rules:
1° In the event of a company's administration of justice:
- existing business councils continue to operate if the companies concerned retain their technical operating unit character;
- in other cases, the board of business of the new company will be composed of all members of the boards of companies that have been elected previously in the companies concerned. This business council works for all staff of the companies concerned.
2° In the event of a transfer under the authority of justice of a part of a business to another company having, like the first, a board of business:
- if existing operating technical units remain unchanged, existing business councils continue to operate;
- if the character of the operating technical units is changed, the existing business council continues to operate in the company of which a portion is transferred; the personnel of the business board occupied in the transferred part of the business are attached to the board of the business to which the party concerned is transferred.
3° In the event that a portion of a business with a business council is transferred under the authority of justice to a business that does not have such advice:
- the existing business council continues to function if the technical unit of operation is maintained;
- if the nature of a technical operating unit is changed, the business council of which a party is transferred continues to operate with staff delegates who were not occupied in the business part that was the subject of the transfer;
- in addition, a business council composed of the staff delegates occupied in the transferred part is constituted in the company to which part of another business is transferred.
4° In all cases of transfer under the authority of justice of a company or part of a business, the members who represented the staff and candidates continue to benefit from the protection measures provided by the Act of 19 March 1991 providing a special termination regime for staff delegates to the boards of business and to the safety, hygiene and beautification committees of the workplace, as well as for the candidates-delegated staff.
5° If the transfer under the authority of justice occurs after the determination of the technical units of operation has become final and before the day of the elections, it is taken into account the transfer only from the installation of the board of business. In this case, the rules set out in 1° to 4° are applied.
The provisions of this paragraph shall apply until the next election of a business council. "
Art. 52. In section 49, paragraph 2, of the Act of 4 August 1996 on the welfare of workers during the execution of their work, as amended by the Act of 3 May 2003, the words "and section 76bis" are inserted between the words "art. 69" and ", there is".
Art. 53. Section 51bis of the Act, inserted by the Act of 5 March 1999, is replaced by the following:
"Art. 51bis. The calculation of the number of workers usually occupied on average, referred to in sections 49, 50 and 51, is carried out over a period of reference determined by the King; in the event of a contractual transfer of business within the meaning of section 6 of this chapter or in the event of a transfer under the authority of justice within the meaning of section 7 of this chapter during that reference period, it shall be taken into account only that part of the reference period located after the transfer of business or after the transfer under the authority of justice. "
Art. 54. In Chapter VIII of the Act, a section 7 entitled "Transfer under the authority of justice" is inserted.
Art. 55. In section 7, inserted by section 54, an article 76bis is inserted, as follows:
"Art. 76bis. The fate of the existing committees at the time of judicial reorganization by transfer under judicial authority within the meaning of the Act of 31 January 2009 on business continuity is governed, unless the parties to the transfer agreement have otherwise agreed, by the provisions of this section.
This section is applicable until the next election of a Committee.
For the purposes of this section, "business" means the legal entity. "
Art. 56. In the same section 7, an article 76ter is inserted, as follows:
"Art. 76ter. In the event of a company's administration of justice:
- Existing committees continue to operate if the companies concerned retain their technical operating unit character;
- in other cases, the Committee of the New Company shall be composed of all the members of the Committees who were previously elected in the companies concerned. This Committee works for all staff of the companies concerned. "
Art. 57. In the same section 7, an article 76quater is inserted as follows:
"Art. 76quater. In the event of the transfer of a part of a business to another company that has as the first of a Committee:
- if existing technical operating units remain unchanged, existing committees continue to operate;
- if the character of the operating technical units is changed, the existing committee continues to operate in the company of which a party is transferred; the personnel of the Committee occupied in the transferred part of the undertaking are attached to the Committee of the undertaking in which the party concerned is transferred. "
Art. 58. In the same section 7, an article 76quinquies is inserted, as follows:
"Art. 76quinquies. In the event of a transfer under the authority of justice of a part of a company provided with a Committee to a company that does not have such a Committee:
- the Existing Committee continues to function if the technical unit of operation is maintained;
- if the nature of a technical operating unit is changed, the Board of the company whose part is transferred continues to operate with staff delegates who were not occupied in the business part that was the subject of the transfer;
- in addition, a committee composed of the staff delegates occupied in the transferred part is constituted in the company where part of another business is transferred. "
Art. 59. In the same section 7, an article 7sexies is inserted, as follows:
"Art. 76sexies. In all cases of transfer under the authority of justice of a business or part of a business, members who represented the staff and candidates continue to benefit from the protection measures provided for in the aforementioned Act of 19 March 1991. "
Art. 60. In the same section 7, an article 76septics is inserted, as follows:
"Art. 76septies. If the transfer under the authority of justice occurs after the determination of the technical units of operation has become final and before the day of the elections, the transfer shall be taken into account only from the installation of the Committee. In this case, the rules set out in sections 76terà 76sexies are applicable. "
CHAPTER 7. - Transitional provisions and entry into force
Art. 61. Section 32 applies to transfers of business under judicial authority that are a result of a request filed or a summons served from the entry into force of this section.
Art. 62. With the exception of sections 7 and 42 to 45, this Act comes into force ten days after its publication in the Belgian Monitor.
Articles 7 and 42 to 45 come into force on the date fixed by the King and no later than December 31, 2014.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 27 May 2013.
ALBERT
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2012_2013
Documents of the House of Representatives:
53-2692 - 2012/2013:
No. 1: Bill.
No. 2: Amendments.
No. 3: Report.
No. 4: Text adopted by the Commission.
No. 5: Amendments.
No. 6: Text adopted in plenary and transmitted to the Senate.
Full report: 2 May 2013.