Add a bookmark to get started

23 February 20243 minute read

Belgian Supreme Court rules on the level of detail of the mandatory statement by third-party garnishees

According to Section 1445 of the Belgian Judicial Code (JC), any creditor can, on the basis of authentic or private documents, levy a (conservatory) garnishment on the sums or goods a third party owes to its debtor. After notification of the garnishment order, the third-party garnishee can no longer hand over these sums and/or goods to the debtor (Section 1451 JC).

Conservatory garnishments are typically used by creditors to put pressure on their debtor (eg notifying a garnishee order to a debtor’s bank, which then freezes the debtor’s accounts).

A garnishment will also give the creditor useful insights into what the debtor is still accruing. For instance, after exercising its direct claim against the principal (Section 1798 (old) Civil Code) an unpaid subcontractor will often also levy a conservatory garnishment to get a view of what the principal still owes its debtor, the (defaulting) main contractor.

Within 15 days of the conservatory garnishment order, the third-party garnishee is legally required to issue a statement on the amounts and/or goods it owes to the debtor, and which are subject to the garnishment (Section 1452 JC). The law stipulates that the statement must be accurate and include all useful details to establish rights of the parties and provide transparency to the garnishing creditor. Section 1452 JC contains a non-exhaustive list of information to be included in the statement, depending on the type of garnishment.

If the third-party garnishee fails to issue the statement, or does so belatedly or inaccurately, it risks becoming personally liable for the debt for which the garnishment was levied (Section 1456 JC). A prudent third-party garnishee is therefore advised to issue the statement as comprehensively and truthfully as possible and, in any event, in a timely manner.

In a recent judgment of 11 January 2024, however, the Belgian Supreme Court ruled on a case involving a less conscientious third-party garnishee who simply stated that it had no (and never had any) debts towards the garnishee debtor. In fact, the third-party garnishee was a contracting party and debtor of the management company of the garnishee debtor and not of the garnishee debtor itself (ie information that was not disclosed in the statement).

The Court of Appeal of Ghent ruled that the "laconic" statement didn’t give an accurate and truthful image of the relationship between the third-party garnishee and the garnishee debtor. However, the Supreme Court overturned the decision and reiterated that the mandatory statement of the third-party garnishee only extends to "the sums or goods that are the subject of the garnishment and of the subsequent obligation to release these sums or goods, meaning the sums or goods owed by the third-party garnishee to the garnishee debtor." The Supreme Court also confirmed that a third-party garnishee "is not obliged to mention a contractual relationship that does not involve a debt owed by the third-party garnishee to the garnishee debtor" and that in such cases it suffices "that the third-party garnishee just confirms that it owes nothing to the garnishee debtor."