20 DECEMBER 2002. - Consumer Debt Amicable Recovery Act (1)

The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - Definitions and scope
Art. 2. § 1^er. For the purposes of this Act, it shall be understood by:
1° amicable debt collection: any act or practice that is intended to induce the debtor to pay an unpaid debt, with the exception of any recovery on the basis of an enforceable title;
2° amicable debt collection activity: professional activity, exercised even as an accessory by a natural or legal person, which consists in the amicable recovery of unpaid debts on behalf of others without having contributed to the conclusion of the underlying contract, as well as the amicable recovery of debts for remuneration, with the exception of the amicable recovery of debts made by a lawyer or a ministerial officer or an agent
3° consumer: any natural person who is indebted from foreign debt to its commercial, professional or artisanal activities;
4th underlying contract: the contract that led to the birth of a consumer debt.
§ 2. Sections 11 to 13 are not applicable to the amicable debt collection activity carried out by a lawyer or a judicial officer.
§ 3. This Act is applicable to amicable debt recovery and amicable consumer debt collection activity.
CHAPTER III
Amicable consumer debt collection
Art. 3. § 1^er. In the matter of amicable debt recovery is prohibited any behaviour or practice that affects the privacy of the consumer or is likely to mislead it, as well as any behaviour or practice that affects its human dignity.
§ 2. These include:
- any writing or behaviour that tends to create confusion as to the quality of the person to which he emanates, such as the writing that would mislead the impression that it is a document from a judicial authority, a ministerial officer or a lawyer;
- any communication with inaccurate legal threats, or incorrect information on the consequences of default;
- any mention on an envelope from which it appears that the correspondence concerns the recovery of a debt;
- the collection of amounts not provided or not legally authorized;
- approaches to neighbours, family or employer of the debtor. The procedure includes any communication of information or request for information in relation to the recovery of receivables or with the creditworthiness of the debtor, without prejudice to the legal proceedings for recovery;
- recovery or attempted recovery from a person who is not the debtor;
- any attempt to recover in the presence of a third party, unless the debtor agrees;
- any attempt to sign a letter of exchange by the debtor or to require an assignment of receivable or a recognition of debts;
- the harassment of the debtor who has made explicit and motivated information that he challenged the debt;
- phone calls and home visits between two hours and eight hours.
The King may complete, modify or adapt this list on the proposal of the Minister who has the Economic Affairs in his or her powers.
CHAPTER IV
Amicable debt collection activity
Art. 4. § 1^er. No friendly debt collection activity may be carried out without prior registration with the Ministry of Economic Affairs.
The King sets out the terms and conditions of this inscription. When applying for registration the evidence must be provided with respect to the obligation referred to in § 2.
§ 2. Any person who has an amicable debt collection activity must have sufficient guarantees to preserve it from the monetary consequences associated with his or her professional responsibility, in accordance with the terms and conditions established by the King.
Art. 5. It is prohibited to claim compensation from the consumer, other than amounts agreed in the underlying contract in the event of non-compliance with contractual obligations.
Art. 6. § 1^er. Any amicable debt recovery must begin with a written stay addressed to the consumer.
This stay must contain in a complete and unambiguous manner all the debt data. It shall include at least the data listed in § 2 and other recovery techniques may be carried out only after the period provided for in § 3.
§ 2. In this format, at least the following data are shown:
1° the identity, address, telephone number and quality of the original creditor;
2° the name or the name, address, registration number in the trade register, the number of T.V.A., and the registration number in the Ministry of Economic Affairs of the person conducting the amicable debt recovery;
3° a clear description of the obligation that gave rise to the debt;
4° a clear description and justification of the amounts claimed to the debtor, including damages and moratoria interests claimed;
5° the mention that, in the absence of a response within the period provided for in § 3, the creditor may make other recovery measures.
§ 3. In the interim, the period in which the receivable may be refunded before further action is taken is mentioned. This period is at least fifteen days and begins to run on the date of sending written summation.
Art. 7. Any person who visits a consumer's home in the context of an amicable debt collection activity must submit a written document which in addition to the data listed in Article 6, § 2, 1° to 4° contains the following:
1° the name of the person who goes to the place;
2° the indication, in bold and in a separate context of the text, that the consumer is not obliged to accept the visit to his home and that he may at any time terminate it. This information should also be provided orally at the time of presentation at the site.
During each full or partial payment of a debt on the occasion of a home visit, a receipt, mentioning the debt, object of payment, must be issued.
Art. 8. Any advertisement is prohibited for an amicable debt collection activity that refers to a registration within the meaning of this Act.
CHAPTER V. - From action to cessation
Art. 9. The President of the Commercial Court notes the existence and orders the cessation of an act, even criminally repressed, which constitutes an offence under this Act.
Art. 10. Cessation action is on request:
1° of interested persons;
2° of the Minister who has the Economic Affairs in his responsibilities;
3° of a professional or interprofessional association with civil personality;
4° of an association whose purpose is to defend the interests of consumers and to enjoy civil personality as long as it meets the conditions laid down in article 98, § 1^er4, of the Law of 14 July 1991 on Trade Practices and on Consumer Information and Protection.
By derogation from the provisions of articles 17 and 18 of the Judicial Code, associations referred to in paragraph 1^er, 3° and 4°, may act in court for the defence of their statutoryly defined collective interests.
Sections 99 and 100 of the Act of 14 July 1991 on trade practices and information and consumer protection are applicable to cessation action referred to in paragraph 1^er.
CHAPTER VI. - Research and recognition of prohibited acts
Art. 11. § 1^er. Without prejudice to the duties of judicial police officers, the agents commissioned by the Minister who has the Economic Affairs in his or her powers are competent to seek and determine the offences provided for in this Act.
The minutes issued by these officers are held to prove the contrary. A copy is sent to the offender, by registered letter to the position with acknowledgement of receipt, within 30 days of the date of the findings.
§ 2. In the exercise of their function, the agents referred to in § 1^er, may:
1° enter, during the usual hours of opening or working, in the premises and rooms whose access is necessary for the fulfilment of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° seize, against receipt, the documents, documents or books that are necessary to prove an offence or to search for co-authors or accomplices of offenders; the seizure is waived in full right without confirmation by the Public Prosecution Service within 10 business days;
4° if they have reason to believe that an offence exists, enter the inhabited premises, with the prior authorization of the judge of the police court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
§ 3. In the exercise of their function, the agents referred to in § 1^er may require police assistance.
§ 4. The commissioned officers exercise their powers under this section under the supervision of the Attorney General, without prejudice to their subordination to their superiors in the administration.
§ 5. In the case of application of Article 12, the minutes referred to in § 1^er is transmitted to the King's Prosecutor only when it has not been given following the warning.
In the event of application of section 13, the minutes shall be transmitted to the King's Prosecutor only when the offender has not accepted the proposed transaction.
Art. 12. Where it is found that an act constitutes an offence to this Act or to any of its enforcement orders or that it may give rise to an action on termination to the initiative of the Minister who has the Economic Affairs in his or her powers, the Minister or the agent that he or she commissions under Article 11, § 1^erParagraph 1^er, may send a warning to the offender to put an end to that act.
The notice shall be notified to the offender within three weeks of the date of the finding of the facts, by registered letter to the position with acknowledgement of receipt or by a copy of the notice of the facts.
The warning mentions:
1° the facts charged and the legal provisions infringed;
2° the period in which it must be terminated;
3° that in the event that the notice is not followed, either the Minister shall bring an action on termination or the agents commissioned under section 11, § 1^erParagraph 1^er, and 13 may, respectively, notify the Crown Prosecutor or apply the settlement by way of transaction under section 13.
Art. 13. The agents commissioned for this purpose by the Minister who has the Economic Affairs in his or her powers may, in the light of the minutes that find an offence to the provisions referred to in Article 15, and drawn up by the agents referred to in Article 11, § 1^erParagraph 1^er, propose to the offenders the payment of a sum that extinguishes public action.
This sum may not exceed the maximum fine set out in section 15, plus additional decimals. The rates as well as the payment and collection modalities are fixed by the King, on the proposal of the Minister having the Economic Affairs in his powers.
CHAPTER VII. - Sanctions
Section 1^re. - Civil sanctions and criminal sanctions
Art. 14. Except in the event of a manifest error that does not prejudice the rights of the consumer, any payment obtained in contradiction with the provisions of Articles 3, 4, 6 and 7, is considered validly made by the consumer in respect of the creditor but must be refunded to the consumer by the person exercising the activity of amicable debt recovery.
If the recovery of a debt relates to a total or partially undue amount, including by application of section 5, the person who receives the payment is required to reimburse the consumer, plus moratoria interest from the day of payment.
Art. 15. § 1^er. Are punished with a fine of 26 to 50,000 EUR :
(1) those who contravene the provisions of articles 3 to 8;
(2) those who do not comply with a judgment or judgment rendered following a cessation action referred to in Article 9;
3° those who voluntarily prevent or hinder the execution of the mission of the persons referred to in Article 11 with a view to seeking and detecting offences under the provisions of this Act.
Without prejudice to the application of the ordinary rules on recidivism, the penalty shall be doubled if the offence is committed within five years of a forcible conviction of the head of one of the offences provided for in this section.
§ 2. In the event of conviction, the special confiscation referred to in section 42, 3°, of the Criminal Code will always be pronounced.
§ 3. The provisions of Book I^er, including those of chapter VII and section 85, of the Penal Code are applicable to offences under this section.
Section 2. - Administrative sanctions
Art. 16. § 1^er. Without prejudice to the provisions of Articles 13 and 15, the registration referred to in Article 4 may be terminated or suspended by the Minister who has the Economic Affairs in his or her powers, in respect of natural or legal persons who no longer meet any of the conditions prescribed by the enforcement orders or who do not observe any of the provisions of the law or its enforcement orders.
§ 2. The Minister or his or her delegate shall notify the parties of his or her grievances beforehand. He informs them that they can consult their file and that they have a two-week period to present their defence. Interested persons may request to be heard by the Minister or his or her delegate.
The Minister's decision is notified to interested parties by registered letter to the position. It is published by extract to the Belgian Monitor.
§ 3. The Minister determines the duration of the cancellation or suspension of the registration, which may not exceed one year from the notification of the decision. During this period, the persons concerned may no longer exercise the activities under this Act.
They must, in the event of delisting, request a new registration to carry out these activities.
§ 4. Registration cannot be granted or maintained to persons who have twice been subject to a de-listing or suspension measure.
Enrolment may not be granted or maintained to legal persons in which the functions of administrator, manager, director or authority-based are entrusted to a person referred to in paragraph 1^er.
CHAPTER VIII. - Final provisions
Art. 17. The following amendments are made to the Consumer Credit Act of 12 June 1991:
1st section 39 is repealed;
2° to Article 101, § 1^er, amended by the laws of 11 February 1994 and 10 August 2001, point 11° is deleted.
Art. 18. Section 589 of the Judicial Code, as amended by the Acts of 4 December 1990, 12 June 1991 and 11 April 1999, is supplemented by the following provision.
7° to Article 9 of the Law of (20 December 2002) concerning the amicable recovery of consumer debts.
CHAPTER IX. - Entry into force
Art. 19. This Act comes into force on the first day of the sixth month following the one in which it was published in the Belgian Monitor, with the exception of articles 4 and 16 which come into force on the date fixed by the King.
Promulgation of this Act, order that^'she's re-emerged from the seal^'State and published by the Belgian Monitor.
Given in Brussels on 20 December 2002.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Minister of Economy,
Ch. PICQUE
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
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Note
(1) House of Representatives.
Parliamentary documents:
Doc. 50-0223 - Regular session 1999/2000
No. 1: Proposal for a law by Ms. De Meyer and Mr. Verlinde;
No. 2: Amendment.
Regular session 2001/2002
n^bones 3 and 4: Amendments;
Number 5: Report;
No. 6: Text adopted by the Commission;
No. 7: Amendments;
No. 8. Text adopted in plenary and transmitted to the Senate;
No. 9: Draft amended by the Senate;
No. 10: Text adopted by the House of Representatives.
Annales of the House of Representatives:
Full report: 21 February 2002.
Senate.
Parliamentary documents:
No. 2-1061 - Regular session 2000/2001
Number 1: Project referred to by the Senate;
No. 2-4: Amendments;
Number 5: Report;
No. 6: Text amended by the Commission;
No. 7: Amendments;
No. 8: Text amended by the Senate and referred to the House of Representatives.
Annales du Sénat : 4 juillet 2002.