In Belgium, the legal framework provides creditors with several options to address situations where a debtor fails to meet their financial obligations. There are three separate ways in which a debt can be recovered in the event of non-payment by the debtor. Two of these methods involve legal proceedings, while the third relies on a bailiff (“huissier de justice”) to collect the debt. The three collection methods are each dealt with below.
1. The classic legal procedure (art. 700 Judicial Code)
The first collection mechanism involves a classic legal procedure. The law does not establish any explicit conditions for the application of this procedure, although due account should be taken of the court that will be competent.
A case will be usually introduced by a summons to appear (“citation”) but the parties can voluntarily appear before the court. The case will then be decided by a judge. The court’s judgment may be executed by a bailiff. The parties retain the right to appeal against the court’s judgment unless the claim is lower than 2.500 EUR. The losing party must pay a fixed amount as compensation for the costs of the proceedings (“indemnité de procedure”). This lump sum is compensation for the costs and fees of the lawyer acting for the successful party.
In addition, one can claim the statutory interest according to the law of 2 August 2002 on combating late payment in commercial transactions, implementing Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000. This specific interest amounts 10,5 % for the 1st semester of 2023 and 12 % for the 2nd semester 2023. Be aware the standard legal interest applicable in other situations amounts 5,25 % in 2023.
2. The summary order for payment procedure (art. 1338-1344 Judicial Code)
The second alternative is the procedure for a summary order for payment. This proceeding is quicker than the classic legal procedure and is designed for the recovery of certain, small monetary claims. The debt in question must be documented in writing. Claims up to € 1,860 are eligible except that Business to Business (“B2B”) claims are not subject to this ceiling. The procedure for a summary order for payment may only be used against debtors who have their address or residence in Belgium.
The law requires a creditor to send the debtor a formal demand requesting payment within a 15-day time-frame. The demand can be served on the debtor by a bailiff or it can be sent by registered letter (with acknowledgment for receipt). The debtor can pay the debt, contest it, or may perhaps opt not to take any action.
If the debtor does not pay within 15 days from the expiry of the payment deadline, the claim for payment is filed through an application to the appropriate court. In its judgment the court can accept or reject the claim, grant grace periods or it can accept only a part of the claim.
3. Collection of undisputed monetary debts (art. 1394/20-1394/27 Judicial Code)
In addition to the legal proceedings, there is an efficient out-of-court procedure to recover debts between enterprises. In order for this method to be applicable, it is required that the amount of money owed is fixed, due and undisputed. A potential downside of using this mechanism is that the interest and any amount provided for in a damages clause are limited to 10% of the principal amount.
When using the undisputed debts procedure, a lawyer will engage the services of a bailiff to execute the debt collection process. The bailiff will send a formal demand for payment to the debtor, giving one month to pay. In the event that the debtor fails pay, the creditor can make a request for a summary statement (“procès-verbal” or “PV”) of non-dispute to be issued. The PV of ‘non-dispute’ can be issued at the earliest eight (8) days after the expiry of the payment deadline. A magistrate may subsequently declare the PV enforceable. The bailiff can use such a declaration to begin compulsory enforcement procedures for collection of the debt.
Last but not least some strict rules are applicable since September 1st 2023 to consumer debt collection pursuant to the law of 4 May 2023 which can lead to civil, administrative and even criminal sanctions.
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