A look at corporate, personal and, where relevant, partnership insolvency proceedings in Belgium, with a brief description to explain key features, as part of our Dictionary of Insolvency Terms in EU Member States. In particular, we highlight who controls the procedure and whether it is likely to be accompanied by a moratorium to prevent enforcement.
Gerechtelijke reorganisatie (Dutch)
La réorganisation judiciaire (French)
- A debtor facing financial difficulties may apply to the court for a judicia reorganisation procedure that comprises a debt restructuring scheme under the supervision of the court. The debtor will be granted a moratorium and remains in control of its affairs.
- Available to all businesses (natural person, partnership, company or even an association in certain circumstances).
The judicial reorganisation procedure may take three possible routes. The debtor chooses the most appropriate and can apply to the court at any time to change the route it takes.
1. Gerechtelijke reorganisatie door een minnelijk akkoord (Dutch)
La réorganisation judiciaire par accord amiable (French)
Judicial reorganisation through a collective settlement
Amicable settlement: provides for the debtor to agree a payment plan with a group (two or more) of its creditors.
2. Gerechtelijke reorganisatie door een collectief akkoord (Dutch)
Réorganisation judiciaire par accord collectif (French)
Judicial reorganisation through a collective settlement
Collective settlement: the second route provides for the debtor to propose a payment plan to its general body of creditors. If a majority of creditors vote in favour, and the court sees no reason not to approve it, the plan will be binding on all creditors.
3. Gerechtelijke reorganisatie door overdracht onder gerechtelijk gezag (Dutch)
Réorganisation judiciaire par transfert sous autorité de justice (French)
Judicial reorganisation through a transfer of assets under court supervision
- Transfer of assets under court supervision: the third and most drastic option provides for the transfer (sale) of the debtor’s assets either in whole or in part by a court-appointed administrator. The administrator must give priority to preserving the debtor’s business.
Médiateur d’entreprise (French)
- A debtor can apply to court to appoint a business mediator to assist in facilitating a reorganisation, both within and outside the context of a judicial reorganisation.
Possible but very rarely used for natural persons.
Voorlopig bewindvoerder or mandataris ad hoc (Dutch)
Administrateur provisoire or mandataire ad hoc (French)
- In a number of situations, for example where there is serious disagreement between a company’s shareholders that paralyses the company or serious misconduct by the management, the court can, upon request of any interested party, transfer the management of some or all of the business to a provisional administrator.
- It can do so both in the context of a judicial reorganisation (for which there are express statutory provisions) or outside the scope of a judicial reorganisation through a measure developed by case law. This decision as such does not affect the rights of creditors.
- Possible but very rarely used for natural persons.
Mandataire de justice (French)
- If the debtor is subject to a judicial reorganisation and the court concludes it has been seriously mismanaged, it may install and determine the role and duration of appointment of a court – appointed administrator.
- The decision does not in itself have any bearing on the rights of the creditors.
- Possible but very rarely used for natural persons.
- This notion may be somewhat confusing as it is in Belgium used for different types of court-appointed officers. A court-appointed administrator also supervises the procedure and assists the debtor in the context of a pre-packaged agreement or can, somewhat similar to a provisional administrator, be appointed in the event of gross misconduct by the debtor.
Minnelijk akkoord (Dutch)
Accord amiable (French)
- At any time, a debtor can agree a payment plan with some or all of its creditors. If the plan is concluded with two or more creditors and the debtor files it with the court registry, the plan and any payments made pursuant to it are protected against clawback actions by a bankruptcy administrator in the event the debtor is subsequently declared bankrupt.
- The difference with a judicial reorganisation through an amicable settlement is that here the debtor is not given protection against its creditors. The payments made pursuant to the payment can merely not be challenged.
- A debtor (both natural persons and corporations) can be declared bankrupt if: (i) it has ceased to pay its debts; and (ii) is no longer creditworthy. The Public Prosecutor or any creditor may apply to the court for such an order and the debtor is to apply for bankruptcy within one month after having come to the conclusion that it is in a state of bankruptcy.
- The court will appoint a bankruptcy administrator (curator in Dutch, curateur in French) charged with the administration and liquidation of the bankruptcy estate and the distribution of the proceeds.
- In principle, a debtor’s bankruptcy does not prevent secured creditors from enforcing their rights.
Vrijwillige vereffening (Dutch)
Liquidation volontaire (French)
- A general meeting of shareholders decides to dissolve the company or association and put it into liquidation. A liquidator (vereffenaar in Dutch, liquidateur in French) is appointed to realise the assets and distribute the proceeds between creditors.
- More flexible than bankruptcy (eg shareholders choose the liquidator, less court control).
- In principle, a voluntary liquidation does not prevent secured creditors from enforcing their rights.
Gerechtelijke vereffening (Dutch)
Liquidation judiciaire (French)
- At the request of shareholders, the Public Prosecutor or any interested party, the court can order the dissolution and liquidation of the debtor. The court appoints a liquidator (gerechtelijk vereffenaar in Dutch, liquidateur judiciaire in French) to realise the assets and distribute the proceeds between creditors.
In principle, liquidation does not prevent secured creditors from enforcing their rights.
Voorlopige ontneming van het beheer, bepaald in artikel XX.32 van het Wetboek van economisch recht (Dutch)
Dessaisissement proviso ire visé à l’article XX.32 du Code de droit économique (French)
Provisional administration pursuant to Article XX.32 of the Code of Economic Law
- If the court finds that there are strong indications that the debtor is in a state of bankruptcy, the court can, on the application of any interested party or even of its own motion, decide to transfer the management for a limited period of time to a provisional administrator.
- The provisional administrator will verify whether the debtor is virtually bankrupt and prevent that the debtor’s management disposes of its assets.
The procedure is similar to the provisional administrator procedure.
Collectieve schuldenregeling (Dutch)
Règlement collectif de dettes (French)
Collective debt settlement
- Any natural person who is not conducting business activities may apply to the court to have a debt mediator (schuldbemiddelaar in Dutch, médiateur de dettes in French) appointed who will be in charge of the administration of that person’s assets. Natural persons who are conducting business that does not meet the definition of "commercial" can also resort to the collective debt settlement.
- The debt mediator will try to agree a payment plan with creditors. If that proves to be unsuccessful, the mediator can, with the approval of the court, impose either a payment plan or even a (partial or complete) discharge of the debtor’s debts.
The enforcement of security rights is suspended during the procedure.
Secure creditor enforcement procedures
- Enforcement of a mortgage or pledge, does not, in principle, require the intervention or approval of the court, unless the pledgor or mortgagor is a consumer. The court’s role is limited to an optional control a posteriori.
- Enforcement of a mortgage, however, requires the intervention of a notary public, who will have to be officially designated by the court.
- As regards enforcement of personal or corporate guarantees, a creditor is always required to apply to the court for an order that the guarantor pays the sums due. The creditor will need a judgment ordering the guarantor to pay.
Voorbereiden akkoord (Dutch)
Accord préparatoire (French)
- A debtor may conclude a non-public preliminary agreement before an actual judicial reorganisation procedure with one or several creditors, under the supervision and with the assistance of a court-appointed administrator.
- The court-appointed administrator can request the court to grant a grace period for the payment of the debts or similar measures for a maximum duration of 4 months.
- This remains a preliminary phase, which will lead, if successful, to the opening of an actual, official judicial reorganisation procedure. This avoids the negative effects of the publication of the opening of insolvency proceedings and thus allows the recovery of businesses in financial difficulty, while preserving their value.
EU Directive Implementation
The EU Directive on Restructuring and Insolvency1 requires Member States to incorporate minimum common standards into their national restructuring and insolvency laws by 17 July 2021, with an option to extend that deadline by one year. The intention of the Directive is to reduce barriers to the free flow of capital stemming from differences in Member States’ restructuring and insolvency frameworks, and to enhance the rescue culture in the EU.
Notable features required to be included in Member States’ national laws include:
- An effective preventive restructuring framework to enable debtors experiencing financial difficulties to restructure at an early stage, with a view to preventing insolvency and ensuring their viability.
- A stay of up to four months extendable to up to 12 months to support negotiations of a restructuring proposal, which should prevent individual enforcement action and include rules preventing the withholding of performance, termination, acceleration or modification of essential contracts.
- An ability to cram down dissenting classes of creditors.
- Adequate protection for financing needed to allow the business to survive or to preserve the value of the business pending a restructuring, and for new financing necessary to implement a restructuring plan.
- Provision for honest, insolvent entrepreneurs to have access to a procedure that can lead to a full discharge of their debts (subject to limited exceptions) within three years.
Implementation in Belgium
The Directive has not yet been implemented in Belgium.
The implementation date is currently unknown. The Directive must nevertheless be transposed to Belgian law by 17 July 2022 at the latest.
Recognition of foreign insolvency processes
EU Regulation on Insolvency Proceedings
The EU Regulation on Insolvency Proceedings2 applies to all EU Member States except Denmark and requires that certain collective insolvency proceedings, which are listed in Annex A to the Regulation, occurring in one EU Member State be automatically recognised in all other EU Member States and that each EU Member State automatically recognises the powers and authority of an insolvency practitioner appointed in another EU Member State.
Recognition of third country insolvency processes
The recognition of insolvency proceedings from other EU Member States is governed by the EU Regulation on Insolvency Proceedings3. This means that the Belgian courts will in the majority of cases recognise and thus give effect to proceedings opened in any other EU Member State.
Insolvency proceedings opened in other jurisdictions, such as in the United Kingdom, will be recognised provided the debtor had its principal place of business in that jurisdiction.
Insolvency changes in response to COVID-19
After the last moratorium on bankruptcies ended on 31 January 2021, a new law was adopted on 21 March 2021 to further support businesses facing financial difficulties.
This new law primarily intends to create a flexible framework allowing businesses to negotiate a reorganisation plan in a confidential manner, called a "pre-packaged agreement". If successful, this "pre-packaged agreement" stage will be followed by the opening of a judicial reorganisation procedure.
The new law also extended the circumstances where a judicial representative may be appointed and relaxed the admissibility conditions for the opening of judicial reorganisation proceedings for the debtor.
For more information on changes to insolvency law in Belgium as a result of the COVID-19 pandemic, please see our Guide to changes in insolvency law in response to COVID-19.
Contact: Ilse Van de Mierop
1 Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132.
2Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
3Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).