I INSOLVENCY LAW, POLICY AND PROCEDURE
i Statutory framework and substantive law
The Belgian statutory framework provides a variety of insolvency proceedings of which the most important are bankruptcy, judicial reorganisation, liquidation, collective debt settlement for natural persons and the temporary deprivation of management.
This chapter will only discuss the bankruptcy, judicial reorganisation and liquidation proceedings in more detail. These three proceedings are regulated not by one insolvency code but by three different legislative instruments: bankruptcy is governed by the Bankruptcy Law of 8 August 1997; judicial reorganisation by the Law on the Continuity of Enterprises of 31 January 2009; and the liquidation of a company by Clauses 183 to 195 of the Belgian Company Code.
The purpose of the bankruptcy, judicial reorganisation and liquidation proceedings are divergent. The bankruptcy and liquidation proceedings mainly aim to sell the debtor’s assets and to distribute the proceeds thereof among the creditors. The main difference between the two proceedings is that a liquidation proceeding is opened as result of a voluntary decision of the shareholders, who are also at liberty to appoint a liquidator of their choice, whereas in the case of bankruptcy, the directors of a company are obliged to file for bankruptcy when certain bankruptcy conditions are met, after which the competent court (and not the shareholders) will appoint a bankruptcy administrator, who will be responsible for the winding up of the bankrupt company.
Judicial reorganisation, on the other hand, aims to preserve the continuity of the debtor’s business, whether by providing a framework to settle certain claims with the creditors or to transfer the business to another legal entity.
The treatment of businesses in financial hardship differs materially depending on which insolvency procedure is filed for. Under the bankruptcy and liquidation proceedings, the bankruptcy trustee and liquidator respectively will, in practice, focus on liquidating the company and repaying the creditors and not on the continuity of the business and the employment attached to the business.
The key goal of the judicial reorganisation procedure is to maintain the continuity of the debtor’s business, including, to a maximum extent possible, the workforce.2 An evaluation of the practical consequences of the Law on the Continuity of Enterprises of 31 January 2009 showed, however, that the majority of companies under judicial reorganisation would still eventually file for bankruptcy, which in some cases even caused an increased debt compared with the total debt at the time of filing for judicial reorganisation. Another conclusion was that the broad protection offered to the debtor and the tendency to prefer continuity and retention of workforce over creditors’ rights, caused the creditors in various cases disproportionate harm. For this reason the Belgian legislator decided to amend the Law on the Continuity of Enterprises of 31 January 2009 with effect as of 1 August 2013.3
Primarily, the amendment provides for more stringent access conditions and a right for the court to end the judicial reorganisation proceedings at all times if it becomes apparent that the debtor is not capable of ensuring the continuity of the business. Also, creditors are now informed through a publication of the purpose and duration of the reorganisation.
If the debtor decides to use the judicial reorganisation to facilitate the transfer of its business to another entity, the amendment provides more security for creditors by requiring certain minimum thresholds and guarantees from potential buyers on the acquisition price and the future employment, as past experience has been that acquisition prices were sometimes even lower than the liquidation value, and employment guarantees later seemed unrealistic.
The Belgian Minister of Justice Koen Geens provided in his policy statement of November 2014 that the Ministry of Justice and the Ministry of Economics are reviewing the bankruptcy and judicial reorganisation legal framework and aim to integrate both procedures in a new chapter of the Belgian Code of Economic Law. One of the main changes will likely be the extension of the scope of application of the bankruptcy and judicial reorganisation procedures to professions that up to now could not apply for these procedures, such as lawyers, architects, and physicians. The new legal framework will also implement certain aspects of the new Insolvency Regulation (EU 2015/848) in Belgian law.
iii Insolvency procedures
Bankruptcy causes a collective seizure of the assets of the debtor, with the debtor losing all rights to manage its assets.4 A bankruptcy administrator will take control of the insolvent company to liquidate the assets and repay the creditors with the proceeds thereof. In that respect, for the bankruptcy administrator to obtain a clear overview of the debt situation of the company each creditor must make a timely declaration of its claim and any applicable preference rights.
The bankruptcy administrator will verify all creditor claims and then categorise them into (classes of) preferential claims and non-preferential claims based on their (legal) nature. Following certain interim statements and under the supervision of the court, the bankruptcy administrator will proceed to liquidate the debtor’s assets and to allocate the funds among the creditors depending on their rank.
The time frame within which a bankruptcy administrator normally finalises the bankruptcy proceedings differs materially from company to company and depends, to an important extent, on factors such as the size of the company, the type of assets owned by the company (real estate, participations in wholly or partially owned subsidiaries and complex financial instruments may, for instance, delay the completion of a bankruptcy), and pending (criminal) claims or legal proceedings.
From the moment the debtor enters into the judicial reorganisation proceedings, all claims dated prior to the reorganisation will no longer be enforceable for a period of moratorium granted by the court. Such a moratorium period can initially be granted for a maximum of six months, but the tendency in recent case law is that courts keep the first moratorium period rather short (e.g., one to three months) to enable it to closely monitor the situation. The moratorium period can be extended by the court at the request of the debtor but cannot exceed a maximum of 18 months in total.5
All new debt of the company that becomes due and payable after the date of entering into the reorganisation procedure remains collectable by the relevant creditors. In fact, the court will often exercise close scrutiny on whether this debt is paid to assess whether the debtor is still in a position to ensure the continuity of its business.
This moratorium period enables the debtor to organise its business within one of the three types of judicial reorganisation procedures: either an amicably negotiated settlement with some or more of its creditors; the transfer or sale of all or part of the debtor’s business by a judicial representative appointed by the court; or a judicial reorganisation through a collective reorganisation plan with all creditors having claims dating from before the start of the judicial reorganisation procedure.
The option currently most chosen by debtors is the judicial reorganisation through a collective reorganisation plan. In such cases, the debtor must inform its creditors with, among other things, a specification of the amount of their claim. The law provides, in certain situations, rights for creditors that do not agree with the notification or who were not notified at all.6
The debtor will prepare a reorganisation plan in which, inter alia, certain waivers to pay principal amounts and interests as well as deferrals of payment can be included. This reorganisation plan can provide for differentiated treatment of the creditors as long as there is no discrimination between creditors who are in a substantially similar position (e.g., discrimination could occur if a discrepancy exists in repayment rights granted to two creditors that are both unsecured and that both have a claim of more or less the same amount). Unsurprisingly, in practice, the question of whether creditors are in a substantially similar position often triggers much debate. The plan may not remit more than 85 per cent of the debtor’s total debt. The execution period of the reorganisation plan may not exceed five years, and repayment of secured creditor’s claims may not be suspended for more than two years.
The reorganisation plan is approved if: the majority of creditors and the majority in value of the total claims vote in favour of the plan.7 Preferential creditors or creditors with a security interest are required to individually approve the reorganisation plan if certain of their rights are affected. Upon approval of the reorganisation plan and ratification by the commercial court, all creditors, even the dissenting ones, are bound by the plan.
A liquidation does not necessarily need to lead to a positive balance after the liquidation of all assets. In fact, in a case of insolvency, a liquidation procedure may even offer more efficient means of liquidating assets than a bankruptcy proceeding. This is explained by the fact that in a bankruptcy proceeding, the bankruptcy administrator must realise the assets of the company as quickly as reasonably possible. If market conditions are not favourable at the time the bankruptcy administrator is appointed, the latter should nevertheless proceed with the realisation, which might result in a lower return for the creditors than if the assets were sold when market conditions had improved. Hence, sometimes creditors might prefer the company to proceed with a liquidation instead of filing for bankruptcy. The liquidator will enjoy greater flexibility in realising the assets. The key condition to allow for such a ‘deficit liquidation’ is that the creditors (or at least the most important part of the creditors) accept the opening of a liquidation over a bankruptcy procedure. Should the most important creditors fail to support such a liquidation, bankruptcy conditions would be met, and as a result the company would be obliged to file for bankruptcy.
The liquidator will be responsible for selling all assets of the company and winding up its business. A plan for the distribution of the company’s assets must be presented to the court. If the liquidation does not have a deficit, all remaining proceeds of the company shall be distributed among its shareholders.
iv Starting proceedings
The Bankruptcy Law expressly provides that the directors of any commercial company must file for bankruptcy within one month from the moment when it has ceased, in a consistent way, to pay its debts and where it is no longer in a position to obtain credit.8 Failure to do so may result in criminal and civil sanctions for the said directors, who can also be held personally liable for losses and third-party rights to damages caused by their tardy reaction. An exception exists for a debtor that is in judicial reorganisation proceedings.
The two conditions (cessation of payment and loss of creditworthiness) are not further defined in the Bankruptcy Law, and hence the court enjoys a large margin of appreciation. Generally, a company will fulfil the cessation of payment condition when the company is unable to pay, in a consistent way, its debts upon their due date. The condition of loss of creditworthiness is deemed fulfilled when the company’s customary credit institutions have terminated the company’s credit lines.
The commercial court of the corporate seat is granted jurisdiction for the bankruptcy proceedings. If the debtor’s corporate seat was transferred in the year before the bankruptcy proceeding is initiated, the commercial court having jurisdiction over the corporate seat before said transfer will be the competent court to avoid pre-bankruptcy seat-transfer abuse.9
Any creditor with a legitimate interest, the provisional administrator of a company or the public prosecutor can also file for bankruptcy if it is of the opinion that the bankruptcy conditions are met.
Upon declaring bankruptcy, the commercial court will appoint a bankruptcy administrator and a supervising judge. For each bankruptcy, the contact details of the bankruptcy administrator, the competent court and the deadline for the declaration of claims by the creditors are published in the Official Gazette and in at least two national newspapers.
A company can apply for a judicial reorganisation with the commercial court having jurisdiction over its registered seat if it faces financial difficulties that threaten or may threaten its continuity. Initially, the threshold for entering the procedure was extremely low and a court did not have much manoeuvring room to refuse the judicial reorganisation. As mentioned above, the law has now been amended and provides for more stringent conditions that need to be met before a company can seek court protection, as further explained below.
Upon receipt of the filing for judicial reorganisation the court will appoint a delegated judge, who will examine the filing and report back to the court. The court will subsequently hear the concerned parties and will rule upon the fulfilment of the criterion that there is an actual or imminent threat to the continuity of the debtor.
Any party to the judicial reorganisation proceedings can appeal a decision of the commercial court with the competent court of appeal. Any third party not involved in the judicial reorganisation proceedings (e.g., the creditors of the company) can bring a third-party opposition before the commercial court issuing the contested decision.
The decision to commence judicial reorganisation is published in the Belgian state gazette together with a specification of the judicial reorganisation option chosen by the company (i.e., a negotiated settlement with some or more of its creditors; the transfer or sale of all or part of the debtor’s business; or a judicial reorganisation through a collective reorganisation plan) as well as the duration of the initial moratorium period.
Unless otherwise stipulated in the company’s articles of association, the general meeting of shareholders is competent to appoint a liquidator to liquidate the company’s estate and satisfy the creditors’ claims. The appointment of the liquidator is subject to ratification by the court.
v Control of insolvency proceedings
The court will examine whether the company fulfils the conditions for bankruptcy. Upon the bankruptcy judgment, the management powers of the debtor are transferred to the bankruptcy administrators appointed by the court. The bankruptcy administrator is impartial and must act in respect of the rights of the debtor, the creditors and all other stakeholders, such as the employees (see Section I.iii, supra, for the bankruptcy administrator’s duties in liquidating the bankrupt company).
Furthermore, the court will appoint a supervising judge, who will oversee the bankruptcy administrator and the legal proceedings.10
During the insolvency proceedings the court will resolve any disputes regarding creditor claims submitted to the bankruptcy administrator.
In the judicial reorganisation judgment, the court will appoint a delegated judge, who should closely monitor the (financial) situation of the debtor during the moratorium period and report on his or her findings to the court. An important aspect most delegated judges focus on is whether a debtor pays the ‘new debt’ (debt arising after the start date of the judicial reorganisation) when such debt becomes due. The opinion of the delegated judge will be an important factor for the court to decide on certain procedural questions, such as the extension of the moratorium period or the transfer from one judicial reorganisation option to another.
A judicial representative will be appointed by the court if the debtor has opted for a transfer or sale of all or part of its business. The judicial representative will organise such a transfer or sale under court supervision without any veto right for the debtor.11
The court may also appoint a temporary administrator to take control of the debtor’s business upon request of any third party with legitimate interest if the continuity of the business is threatened by gross mismanagement by the debtor.
The liquidator is responsible for the liquidation of the debtor’s estate to satisfy the creditor’s claims. The liquidator will draw up a plan for the distribution of those proceeds, which shall preliminarily be submitted to the court for approval.
vi Special regimes
The bankruptcy and judicial reorganisation proceedings are not open to non-commercial entities, public entities such as the federal state, the regions, communities, provinces and municipalities. The judicial reorganisation procedure is not open to credit institutions, insurance and re-insurance companies, investment companies, clearing and settlement institutions and management companies.12
Credit and insurance institutions can file for bankruptcy. Moreover, following the financial crisis, the Belgian legislator has adopted protection mechanisms in case a financial institution threatens to affect the stability of the Belgian or international financial model. The government can decide, by means of a royal decree, to take certain actions under court supervision including the sale of assets, liabilities and shares of the financial institution in question. Such a sale can take place to the Belgian government or any third party. The remuneration for such a sale shall be set out in the royal decree.13
In addition the National Bank of Belgium or the Financial Services and Markets Authority can take or impose immediate measures, such as the complete or partial suspension of certain agreements entered into by a financial institution, to remedy any legal, financial, accounting and structural issues of such a financial institution experiencing financial difficulties.
Currently, corporate group insolvency proceedings are not recognised under Belgian law and no legislative proposals are expected in this regard in the near future.
vii Cross-border issues
EU insolvency proceedings
Insolvency proceedings in the European Union are automatically recognised in Belgium and treated in accordance with the EU Insolvency Regulation (EC 1346/2000). On 20 May 2015 the European Parliament approved a new European Insolvency Regulation (EU 2015/848). This new European framework governing cross-border EU insolvency issues entered into force on 5 June 2015 although the majority of provisions will only apply as from mid-2017. In the meantime, the provisions of the EU Insolvency Regulation (EC 1346/2000) remain in effect.
Non-EU insolvency proceedings
The Belgian Judicial Code confers jurisdiction upon Belgian courts to open main insolvency proceedings when the debtor’s main establishment or registered offices are situated in Belgium or to open local insolvency proceedings in Belgium when the debtor has an establishment in Belgium.14
The recognition of the opening or outcome of an insolvency proceeding outside the EU Insolvency Regulation takes place automatically without court or government intervention. A court intervention is only required to obtain the enforcement of said non-EU proceedings.
II INSOLVENCY METRICS
i General economic climate
On the basis of the statistics of the Federal Planning Bureau and the National Bank of Belgium, the Belgian economy experienced in 2014 its first notable growth of GDP, amounting to 1 per cent, after two years of very limited progression. This positive evolution is mainly the result of better export results and the fact that domestic demand increased. The growth even increased in 2015 (by 1.4 per cent), which was, among others, attributable to an increase in individual consumption. The growth, however, remained limited as a consequence of the political uncertainty concerning the stability of some national economies in the eurozone. It is expected that GDP growth will decelerate to 1.2 per cent in 2016. The Brussels attacks of March 2016 will only have had a limited impact on the economic activity in 2016 (0.1 per cent decrease in GDP growth).15
In 2015, employment in Belgium considerably increased (by 41,500 persons) and is projected to continue increasing over the period of 2016 to 2021 (by 229,700 persons). This will result in a decrease of the unemployment rate from 11.9 per cent in 2015 to a projected 9.7 per cent in 2021.16
ii Bankruptcies and judicial reorganisations
In 2015, 9,762 companies were declared bankrupt in Belgium, which is a decrease of approximately 9.1 per cent compared to 2014. However, this number is still higher than the bankruptcies measured in the period 2008–2010, with an average of 9,000 companies going bankrupt per year.17 The statistics for the first six months of 2016 show a positive trend in the number of bankruptcies, with a decrease of 12.66 per cent compared to the first six months of 2015.18
In the period of June 2015 to June 2016, it was remarkable that the vast majority of bankruptcies occurred in companies with fewer than five employees, and that only a limited number of companies with more than 100 employees went bankrupt.
The industries in which the greatest number of businesses went bankrupt were the retail trade industry, the construction industry and the restaurant and bar sector.
Since the aforementioned amendment to the Law on the Continuity of Enterprises, considerably fewer companies have entered into the judicial reorganisation procedure. In the first three months of 2015, for instance, only 176 companies were accepted into the procedure, compared to 356 companies in the first three months of 2012. In general, the statistics after the implementation of the aforementioned amendment show a decrease of about 50 per cent in the number of cases accepted.19 As mentioned in Section I.iii, supra, the most popular option chosen by companies in the judicial reorganisation procedure is the collective reorganisation plan. This popularity seems only to be increasing as 76 per cent of procedures opened in 2014 were aimed at a collective reorganisation, compared with 71.1 per cent during the year prior to the amendment.
As stated in Section I.ii, supra, this amendment provides for more stringent access conditions and a right for the court to end the judicial reorganisation proceedings at all times if it becomes apparent that the debtor is not capable of complying with the requirements or ensuring the continuity of the business. Hence it can be expected that companies who enter into a judicial reorganisation procedure and for which it is clear they would not be able to successfully complete a judicial reorganisation would be declared bankrupt faster than in the past. However, according to the most recent statistics, that does not seem to be the case thus far.20
III PLENARY INSOLVENCY PROCEEDINGS
Dexia was a Franco-Belgian financial institution that focused on public finance, providing retail and commercial banking services and insurances. As a result of the worldwide crisis in the financial and banking sector, Dexia got into severe financial difficulties in 2008. One of the main issues facing Dexia seems to have been its focus on expanding rapidly with risky financial products, which it increasingly financed with interbank lending instead of capital. Other banks began to lose their confidence in the Dexia Group because of the financial outlook of its American subsidiary, Financial Security Assurance, causing Dexia to lose an important part of its interbank lending options.
The stock price of Dexia shares decreased quickly and so did the ratings awarded by credit rating agencies. Dexia had no choice but to request the assistance – by way of a capital injection and state guarantees – of the Belgian, French and Luxembourg governments. However, the distrust on the financial markets remained enormous, which led to the fall of the stock price by 90 per cent in just one year.
In 2010, the European Commission accepted the restructuring plan for Dexia. As part of the resolution, Dexia Bank Belgium, a subsidiary of Dexia Group, was sold to the Belgian state and continued to exist under the new name Belfius Bank. The French part of the Dexia Group, Dexia Crédit Local, was bought by the French government (75 per cent), Caisse des Dépôts (25 per cent) and La Banque Postale (5 per cent).
In addition, a ‘bad bank’ was created containing certain toxic assets of the Dexia Group. The Belgian, French and Luxembourg governments provided guarantees to the bad bank for a total amount of roughly €90 billion.
The Dexia case did not in itself cause direct court intervention with respect to the sale of Dexia Bank Belgium, or with respect to the creation of the bad bank, but did result in the insolvency of two Dexia Group shareholders, which is explained in more detail in subsections ii and iii, infra.
ii Holding Communal/Gemeentelijke Holding
Holding Communal, an investment company owned by various Belgian regions, cities, and communes, was one of the largest shareholders of Dexia Group. The fall of the stock price of the Dexia Group shares caused severe financial issues for Holding Communal, which ultimately led to an insolvency procedure in December 2011.
With a balance sheet of almost €1.5 billion, Holding Communal is the largest Belgian company ever to go into a voluntary process of court-supervised liquidation.
What makes this insolvency peculiar is that the board of directors and the shareholders of Holding Communal, following discussions with various stakeholders, decided to opt not for bankruptcy but rather for a (deficit) liquidation, which was only possible with the agreement of the most important creditors of Holding Communal, the largest of which being Dexia Bank Belgium (now Belfius Bank).
As explained in Section I.iii, supra, one of the advantages of liquidation is that a liquidator enjoys a greater flexibility in realising the assets of the company. At the end of 2011, the financial markets were still in distress. A substantial part of the assets of Holding Communal were financial instruments, and the shareholders as well as the most important creditors of Holding Communal were of the view that a fire sale of these assets in the context of a bankruptcy proceeding was to be avoided. If Holding Communal were to go into liquidation, the liquidators would be given the flexibility to await an improvement in the financial market before selling the financial instruments held by Holding Communal.
Although a substantial part of the assets has already been sold, the liquidation of Holding Communal is still ongoing.
Another case connected with Dexia is the liquidation of Arco – a Belgian cooperative holding within the Christian Workers’ Union (ACW), a national confederation of Christian employees. Of Arco’s capital, 90 per cent was invested in Dexia Group. As a result of the fall of Dexia, Arco became insolvent in 2011, following which its shareholders decided to opt for liquidation, which is still ongoing, although in this case also a major part of the assets has already been sold.
In the framework of Arco’s financial difficulties, the Belgian government agreed to provide a governmental guarantee so that the Arco participants (often small investors) would eventually have the right to reclaim their investment; however, on 3 July 2014, the European Commission concluded that this guarantee was illegal and conflicted with the European rules on state aid. This position is at variance with the Belgian government’s argument that the Arco participants need to be seen as savers instead of investors. Consequently, the Belgian government filed an appeal against the decision of the European Commission with the European Court of Justice. In February 2016, the Advocate-General of the European Court of Justice considered the deposit guarantee scheme for the Arco investors in conflict with European law. A final decision of the European Court of Justice is expected to be rendered in the second half of 2016.
Santens was a producer of high-quality bath linen and experienced financial difficulties in 2011 because of increasing competition from companies in low-wage countries. Santens subsequently filed for judicial reorganisation and opted to sell its business under court supervision. Descamps, a French company that specialises in linen, was interested in acquiring a part of Santens’s assets and employees. However, the main creditors, KBC Bank and BNP Paribas Fortis, refused. They argued that their rights as creditors were neglected since the Descamps offer was substantially lower than the price they had expected.
Nevertheless, the Court of Appeal of Antwerp accepted the partial acquisition by Descamps of Santens, principally because it was the only option to guarantee the continuity of the company and to avoid the loss of jobs for about 175 people. The remaining part of Santens, which was not acquired by Descamps, was declared bankrupt in May 2012, as a result of which about 220 people became unemployed.
This case is an example of how, in judicial reorganisation procedures, creditors do not have veto rights when (part of) the business is transferred to third parties and the (delicate) balancing exercise a court needs to undertake between the interests of the creditors on the one hand and the continuity of the company and the maintenance of employment on the other hand. It remains to be seen whether, as a result of the amendment to the Law on the Continuity of Enterprises discussed in this chapter, the practical outcome of this balancing exercise might evolve in future cases to a more creditor-friendly approach.
IV ANCILLARY INSOLVENCY PROCEEDINGS
No notable ancillary insolvency proceedings have been opened in Belgium during the past 12 months.
Since the amendment to the Law on the Continuity of Enterprises, far fewer businesses have been granted access to the judicial reorganisation procedure. Consequently businesses having little or no chance of continuity now seem to be directed into the bankruptcy procedure within a shorter time frame, which provides more guarantees to creditors that the company will not increase its debt.
Finally, as indicated above, the Belgian insolvency framework will be reformed in the near future as the Belgian legislator is currently reviewing the bankruptcy and judicial reorganisation legal framework and aim to integrate both procedures in a new chapter of the Belgian Code of Economic Law.
1 Bart Lintermans is a partner, Wouter Deneyer a senior associate and William Standaert and Remco Lemarcq are associates at Quinz.
2 Article 16 of the Law on the Continuity of Enterprises of 31 January 2009.
3 Law of 27 May 2013 concerning the amendment of certain legislation on the continuity of enterprises.
4 Article 16 of the Bankruptcy Law.
5 Article 38 of the Law on the Continuity of Enterprises.
6 Article 46 of the Law on the Continuity of Enterprises.
7 Article 54 of the Law on the Continuity of Enterprises.
8 Article 2 of the Bankruptcy Law.
9 Article 631 of the Judicial Code.
10 Article 11 of the Bankruptcy Law.
11 Article 60 and following of the Law on the Continuity of Enterprises.
12 Article 4 of the Law on the Continuity of Enterprises.
13 Article 57 bis of the Law of 22 March 1993 on the Legal Status and Supervision of Credit Institutions.
14 Article 631 Section 1 Judicial Code.
15 For detailed statistics, see www.plan.be and www.nbb.be/belgostat.
16 See Van den Broele, E., ‘Faillissementen 2014: de storm is getemperd, maar niet geluwd’, January 2015, https://graydon.be/blog/faillissementen-2014-de-storm-is-getemperd-maar-niet-geluwd.
17 See www.statbel.fgov.be.
18 See statistics on www.graydon.be, ‘economic barometer’.
19 See www.graydon.be.
20 See www.graydon.be.