{"id":9536,"date":"2018-05-20T12:16:55","date_gmt":"2018-05-20T10:16:55","guid":{"rendered":"https:\/\/bankinglaw.be\/?p=9536"},"modified":"2026-10-01T19:53:37","modified_gmt":"2026-10-01T17:53:37","slug":"new-law-book-xx-insolvency-businesses","status":"publish","type":"post","link":"https:\/\/bankinglaw.be\/en\/new-law-book-xx-insolvency-businesses\/","title":{"rendered":"The New Law Inserting Book XX “Insolvency of Businesses” into the Code of Economic Law"},"content":{"rendered":"

The Act of 11 August 2017 inserting Book XX “Insolvency of Businesses” into the Code of Economic Law aims to reform and rationalise insolvency law, notably in view of EU legislation, bringing together the Bankruptcy Act of 8 August 1997 and the Business Continuity Act of 31 January 2009 under a single codification. The legislature did not merely transcribe these texts, but made some important changes.<\/p>\n

The notion of “business”: a wider personal scope<\/h2>\n

The legislature broadened the scope to the notion of business, wider than that of trader, covering more actors: any natural person carrying on a self-employed professional activity (including managers, directors and the liberal professions); any legal person, even one not carrying on an economic activity (for example, non-profit associations and foundations); and any other organisation without legal personality (provided it pursues a lucrative aim and distributes benefits to its members or managers). This wide notion is limited to Book XX. It follows that all these persons may be subject to judicial reorganisation or bankruptcy under Book XX.<\/p>\n

A fully electronic procedure: Regsol<\/h2>\n

The Act also introduces full computerisation of insolvency procedures, the Central Solvency Register (Regsol). All insolvency procedures are registered and kept there, and creditors must register their claims. Each person has more or less extensive access according to their capacity (creditor, clerk, trustee, lawyer, and so on). The database holds all procedural acts, notifications and communications, and helps the business-difficulty chambers in their enquiries. In practice, the bankruptcy procedure is fully electronic: the debtor files its declaration of bankruptcy, its balance sheet, and the location of its accounts so the trustee can retrieve them. Assets acquired during the bankruptcy no longer form part of the estate (for example, professional income from work done after the opening).<\/p>\n

Insolvency practitioners appointed as a protective measure<\/h2>\n

Book XX gives pride of place to insolvency practitioners: the appointment of a judicial agent outside a reorganisation procedure, at the request of any interested party or the public prosecutor, where serious and characterised failings jeopardise a struggling business’s continuity; the possibility, in a reorganisation, of appointing a provisional administrator to replace the debtor and protect and supervise its assets in case of serious and characterised fault; and the possibility of appointing a company mediator at the debtor’s request, who keeps full control of its business.<\/p>\n

Discharge instead of excusability<\/h2>\n

The debtor’s excusability is replaced by discharge, which no longer has the near-automatic character practice had given it, and must be requested by the bankrupt alone. It allows the bankrupt, absent serious and characterised fault, to seek the discharge of the balance of debts resulting from the bankruptcy.<\/p>\n

Directors’ and managers’ liability<\/h2>\n

Company directors may incur joint liability where a serious and characterised fault contributing to the bankruptcy is shown. This action, not applicable to small businesses, non-profits and foundations, may be brought by the trustee or any injured creditor. The Act also introduces wrongful trading, allowing the trustee to engage directors’ liability where they continued an activity they knew to be loss-making, so that bankruptcy was inevitable.<\/p>\n

Changes to the public-sale procedure<\/h2>\n

Four novelties: the possibility of a higher bid is abolished for sessions after 1 September 2018, a public sale becoming final at the first and only auction session (except for a purely voluntary sale); a property may be bought at public sale subject to obtaining financing, if provided by the notary in the terms of sale; participation in a public sale may take place online (via biddit.be); and on resale after default of the successful bidder, any authorised person may require the notary to pursue the folle ench\u00e8re, the notary giving the defaulting bidder eight days to comply.<\/p>\n

This article is a translation. Only the French version is authoritative. It is provided for information purposes and does not constitute legal advice.<\/em><\/p>\n

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On the same topic<\/h3>\n