STUDIO | LEGALE provides some insight into recent legislation with regards to minimizing the economical and financial consequences of the continued spread of COVID-19.
You may wonder why there are relatively few bankruptcies, even though last year was dominated by the corona crisis with considerable economic repercussions.
After the first moratorium, which ran until June 2020, it has become apparent that, even without a moratorium, various parties are in fact taking account of the current economic difficulties faced by companies as a result of the corona crisis.
An unspoken gentleman's agreement ensures, so to speak, that the tax authorities, the Public Prosecutor's Office, the National Social Security Office, etc. hardly issue any summons for bankruptcy. The legislator has now also intervened by introducing a moratorium on companies, as well as on acts of execution against private individuals.
On 24 December 2020(1), a second moratorium was introduced for the benefit of those companies that:
- are affected by the lockdown measures introduced by Ministerial Decree of28 October 2020 as amended with effect from 1 November 2020; and
- whose continuity is threatened by the spread of the COVID-19 epidemic or pandemic and its consequences; and
- who were not in a state of suspension of payments on 18 March 2020.
Companies that meet these three cumulative conditions will benefit from a temporary suspension from 24 December 2020 until 31 January 2020:
- Enforced recovery and execution of debts is temporarily not possible, even if these debts have been included in a reorganization plan. However, attachment, both precautionary and execution, of immovable property remains possible.
- The company cannot be declared bankrupt or judicially dissolved by serving a writ of summons, except on the initiative of the public prosecutor or the provisional administrator in accordance with art. XX.32 WER or with the consent of the debtor. In addition, it is also not possible to order the transfer under judicial authority of part or all of the activities of a company;
- Payment periods that have been included in a reorganization plan are extended by a duration equal to that of the suspension under this Law. If necessary, this may lead to an extension of a maximum of five years for the implementation of the plan;
- Agreements entered into before the entry into force of this Law cannot be unilaterally or judicially dissolved due to non-payment of a due and payable debt. This does not apply to employment contracts;
- The obligation to file for bankruptcy (article XX.102 WER) is also temporarily suspended during the aforementioned period of moratorium.
This suspension only applies if the bankruptcy conditions are the result of the COVID-19 epidemic or pandemic and its consequences. Of course, it is still possible and permitted to file for bankruptcy.
These measures should once again give some leeway to companies in difficulty. Of course, it is very important that these measures can only be applied to companies in difficulty as a result of the corona crisis. It cannot, therefore, be applied to companies that were already in difficulty and where the suspension of payments took place before 18 March 2020.
In order to prevent abuse, the law explicitly provides that any interested party may, by summons, request the president of the competent company court to rule that a company does not fall within the scope of this suspension or to lift the suspension in whole or in part.
A temporary suspension was also introduced as far as private individuals are concerned, from 24.12.2020 to 31.01.2021:
- An attachment in execution can no longer be imposed on the immovable property that is the domicile of the debtor in question;
- All enforcement attachments, which have already been made, are suspended, with the exception of those on immovable property that is not the debtor's domicile
- No third party may be the subject of a protective and enforcement seizure in respect of the payment of a sum of money;
- No transfer of wages can be carried out;
There are a few exceptions where this suspension has no effect:
- child/spousal support (art. 1412 of the Judicial Code);
- the debtor consents to the attachment or the continuation of enforcement;
- recovery of sums of money following conviction in criminal proceedings;
- recovery of taxes, withholding taxes, duties, surcharges, administrative and fiscal fines, negligence interest, and accessories as a result of a fiscal or social fraud;
- to the notifications referred to in Articles 434 and 435 of the “Wetboek van de inkomstenbelastingen 1992”, 93quater and 93quinquies of the “Wetboek van de belasting over de toegevoegde waarde”, and 36 and 37 of the “Wetboek van de minnelijke en gedwongen invordering van fiscale en niet-fiscale schuldvorderingen” or similar regional regulations, in the context of the drawing up of deeds relating to the disposal or use of mortgaged property.
It is worth noting that no conditions for the application of the restrictions have been laid down for the individuals concerned and that executory attachments already made will also be suspended until at least 31.01.2021.
Of course, it is not inconceivable that the aforementioned end date of 31.01.2021 will be postponed depending on the evolution and further course of the COVID-19 epidemic.
As an employer, you will therefore have to be very careful not to proceed with a further transfer, for example, in the event of an attachment of your employees' wages, if this attachment is subject to the suspension of this article.
We will closely monitor this and update this article as soon as necessary/possible.
For further questions and/or advice regarding the concrete consequences for you or your company, you can always contact us at email@example.com.
(1) Law of 20 December 2020 concerning various temporary and structural provisions on justice in the context of the fight against the spread of the coronavirus COVID-19 (“Wet van 20 december 2020 houdende diverse tijdelijke en structurele bepalingen inzake justitie in het kader van de strijd tegen de verspreiding van het coronavirus COVID-19”)