The Asset Tracing and Recovery Review: Belgium
Belgian civil and criminal law provides fraud victims and victims of dishonesty with several avenues to get compensation for damage incurred as a result of fraud or dishonest behaviour.
For starters, victims can choose to pursue a civil claim for damages. However, Belgian civil law has no separate provisions dealing specifically with asset tracing and recovery, or with the gathering of evidence to support claims arising specifically out of fraud or dishonesty. These victims must, therefore, rely on the general actions available under Belgian civil law. Depending on the case, this will be either a claim for tortious liability or contractual liability.
Alternatively, victims of fraud or dishonesty can initiate a police or criminal investigation. The criminal authorities in Belgium seem to be more and more willing to assist parties seeking asset recovery if an offence is sufficiently serious.
The Belgian legal system is a civil and non-adversarial one. This means that in criminal law, the public prosecutor carries out both the investigation and prosecution of criminal offences. However, a victim him or herself (e.g., of fraud), can take any one of the three following steps to initiate a police or criminal investigation, or to take his or her case directly to court:
- First, a victim can file a complaint, free of charge, with the public prosecutor's office, which supervises and directs police investigations. However, this avenue has a downside: the public prosecutor decides, at his or her discretion and in view of the office's priorities, whether or not to investigate a case. In addition, should a police investigation be initiated based on this complaint, the victim will not have access to the case file, because the details of police investigations are not made public. Therefore, the victim has no guarantee that the perpetrator will be prosecuted. Should the investigation be pursued, and should it require the use of invasive investigative techniques, such as wiretaps, searches or arrests, the public prosecutor will instruct the investigating judge to order these measures to be executed – in whichever way the judge considers necessary –
and the case will move forward as described below.
- Second, the victim can file a claim directly with the investigating judge to avoid the risk that the case would be closed without a full examination. However, this requires the victim to pay a lump sum based on the scope (e.g., difficulty) of the case. Unlike the public prosecutor, the investigating judge has the duty to investigate all exculpatory or incriminating evidence. If the investigating judge considers that the case requires no further investigation, he or she will present it to the Council Chamber. The Council Chamber will then decide whether there is reasonable suspicion to believe that a criminal offence has been committed and whether the case should be referred to a trial court. In addition, the claimant (i.e., the victim) may request access to the file and may propose that additional investigative measures be taken.
- Third, if the perpetrator can be identified and the criminal offence is not punishable by imprisonment for a period of five years or more, the victim can summon the perpetrator directly to appear before the police court or criminal court. This avenue is hardly available for complex cases, because the claimant will have to bear the full burden of proof in that case.
Legal rights and remedies
i Civil and criminal remedies
The choice of the appropriate remedy available to a victim of fraud or dishonesty, be it criminal or civil, will ultimately depend on the specific circumstances of the matter at hand.
Whereas in civil litigation, victims of fraud or dishonesty must revert to general causes of action (such as liability in contract or in tort), the Belgian Criminal Code (BCC) provides for specific sanctions of several acts of dishonesty or deceit. Article 496 of the BCC is the general provision that sanctions individuals who have committed fraud and deception (i.e., where an individual has used some scheme or artifice to defraud someone of his or her assets).
In addition, Article 491 of the BCC covers abuse of trust. It sanctions individuals who have committed intentional embezzlement or squandering of goods that were handed over to him or her under the obligation to return the goods or use them for a specific purpose. Article 492 bis BCC sanctions an individual who has abused a company's goods or credit. Finally, Articles 489, 489 bis and 489 ter of the BCC cover bankruptcy fraud by sanctioning members of a company's management or directors for having committed fraud during the company's bankruptcy proceedings.
Defrauding another person often involves the handling of defrauded property, and this is covered by Article 505 and 505 bis of the BCC on money laundering2 and the handling of proceeds from a criminal offence. Anyone who knowingly handles proceeds from criminal offences can be prosecuted in Belgium, even if the original criminal offence was committed abroad.3
Finally, legal entities can be criminally sanctioned as well. If a court holds a legal entity responsible for a criminal offence committed solely by an identifiable person associated with that entity, it may convict them both jointly if it finds, based on the concrete circumstances of the case, that the physical person has committed the offence knowingly and willingly regardless of the guilt form required by law.4 Where the criminal offence has not been intentionally committed, the judge will have to verify who – either the legal entity or the physical person – has committed the most serious negligence. Only that person or entity can be convicted.
In all these cases, the victim of a criminal offence can file a claim for damages before the criminal court.
Venue and territorial jurisdiction
The fraud victim can bring his or her claim either before the criminal court hearing the criminal case or before a civil court. Belgian criminal courts have jurisdiction over any criminal offence committed in Belgium5 as well as certain criminal offences committed abroad.6 In particular, for the criminal offences based on fraud discussed above, Belgian courts can hear cases in which the accused are Belgian nationals or residents who allegedly committed such criminal offences abroad, provided that the act is also illegal in the country where it was committed (i.e., double incrimination), and, if the victim is not a Belgian national, the foreign government submits an official complaint to the Belgian government (to avoid simultaneous investigations abroad and in Belgium).7
In practice, if a victim files a criminal complaint in several jurisdictions, the Belgian public prosecutor may take this into account and decide not to pursue the case further in Belgium so as to avoid an infringement of the ne bis in idem principle.
Regarding the availability of Belgian venues for civil claims, Belgian courts will have jurisdiction over tort claims if Belgium is the place where the harmful event occurred (i.e., either the place where the damage occurred, or the place of the event that gives rise to (and is at the origin of) that damage).8
The availability of a Belgian venue for contractual claims will largely depend on the nature of the contract and whether Belgium is the place where the relevant obligation was performed (or had to be performed).9
In both contractual and tortious cases, a claimant can always sue in Belgium if the defendant is domiciled in Belgium. Subject to certain restrictions, parties may also agree on a choice of forum clause.
A claimant has standing before the civil courts to sue a defendant if the former has a personal interest to do so. This may be defined as every material or moral benefit – actual, not theoretical – that the claimant may obtain from the suit. Barring ad hoc legal exemptions, civil action groups therefore lack the required standing (by way of principle), unless their claim relates to some personal harm suffered by each of their members individually.10 The Federal Act of 28 March 2014 introducing a class action in consumer-to-business relations11 has nonetheless created a general exception to this personal harm requirement. This Act allows a class representative (i.e., one of the associations described in the Act) to initiate court proceedings for violation by a company of its contractual obligations or a limited number of statutory provisions (i.e., provisions on e-commerce, privacy, financial services, healthcare, product safety, insurance, competition). The court may subsequently choose either an opt-in or an opt-out class representation. The latter will allow the class representative to act on behalf of an unknown number of legal subjects who gave no contractual mandate to the representative, but who will nevertheless be bound by the legal outcome of these proceedings. The representative may, therefore, be claiming damages for harm suffered by legal subjects that are entirely foreign to him or her (i.e., non-personal harm).
If a fraud victim requests an investigating judge to criminally investigate his or her claim, or if he or she introduces his or her claim before a criminal court in a pending criminal investigation, recent case law from the highest Belgian court (the Court of Cassation) would appear to have laid down a stricter threshold for the victim's standing, requiring him or her to prove it plausible that he or she had indeed suffered any personal harm.12
Compensation for fraud or dishonesty can be in the form of a specific performance, restitution and damages, or a combination of these remedies. In any event, the compensation must restore the victim to the hypothetical situation as if the criminal offence had not occurred, and instead its lawful alternative occurred. Damages may (depending on the case) include the account of lost profits. No Belgian court can award punitive damages, even in the event of fraud.
Compensation can be sought from any person who committed a fault that caused the claimant harm. If the victim chooses to file a claim for damages before the criminal courts, the criminal conviction of the accused will be considered sufficient proof of a fault in the subsequent civil trial. Thus, a fraud victim can claim compensation from any convicted person if the victim can prove that the accused's wrongdoing caused him or her harm (harm and causality being the other two conditions for compensation). The accused could be the offender, an accomplice or an accessory before or after the fact, including a person who received or transmitted the proceeds of fraud. Finally, damages for harm resulting from fraud committed in the course of employment can equally be sought from the fraudster's employer, even if the company itself is not criminally liable for the fraud.13
ii Defences to fraud claims
Anyone sued for fraud or dishonesty may contest the victim's claims by arguing that one or more of the elements of the crime, or one or more conditions for civil liability (fault or breach of contract; damage; causality), are not proven.
Another defence might be the time bar. As a rule, the limitation period for claiming damages based on contractual liability expires 10 years after the claim has arisen.14 Civil claims based on tortious liability (including claims on the grounds of fraudulent impoverishment to the detriment of one's creditors) have a double time-bar. They are time-barred when five years have passed since the claimant found out (1) the damage, or the increase thereof, and (2) the identity of the liable person. This claim in tort is furthermore in any event time-barred 20 years after the liable person committed the fraudulent act, regardless of the knowledge of the claimant about the aforementioned (1) and (2).15
Time bars for damages claims may be suspended or extended on various grounds. An extension can be achieved, inter alia, by bringing a claim before a judge (either by initiating proceedings, or by way of written submissions in the framework of pending court proceedings). One may also get an extension by sending a written notice drawn up by an attorney (if the notice conforms to certain requirements).16 After the cause for extension has ceased to be in effect (e.g., when the proceedings have come to an end), a full new limitation period will start. When the limitation period elapses, the claimant may no longer judicially enforce his or her claim. However, the 'natural obligation' remains in effect indefinitely, meaning that spontaneous payment of the corresponding damages afterwards will not be considered undue.
The criminal prosecution of anyone who has committed any of the forms of fraud described above is time-barred five years after they have committed the crimes.17 However, this five-year limitation period may equally be extended or suspended on various grounds.
Seizure and evidence
i Securing assets and proceeds
Seizure of assets and proceeds pending civil proceedings
A creditor may secure assets and proceeds by applying for a conservatory attachment, whereby the assets of his debtor are essentially frozen. This form of attachment is opposed to an executory attachment, which entails the (forced) liquidation of the attached assets and the distribution of the proceeds to the creditor, usually after the (civil) conviction of the perpetrator.18
A creditor seeking conservatory attachment must in principle request permission from the competent court to obtain an order for the attachment measures. However, in some instances, he or she may instruct a bailiff to perform such an attachment measure merely on the basis of exhibits provided by the creditor him or herself. The documents must in that event constitute proof of the claim.19
A conservatory attachment limits the debtor's powers to dispose of the attached assets, but it does not deprive the debtor of his or her proprietary or possessory rights to these assets. The creditor must make a separate request if he or she prefers to have these assets put under the custody of a third party (which request may be heard by different courts, depending on the case).20
A conservatory attachment can be made on the debtor's movable and immovable property. The creditor may also attach goods held by a third party, for example, (most commonly) a bank. Such an attachment affects all of the debtor's funds in the bank account at the date of the conservatory attachment, irrespective of the amount of the attaching creditor's claim. However, the creditor may choose to limit the conservatory attachment to a certain sum only (e.g., to avoid counterclaims based on abuse of attachment in situations where the attached funds largely exceed the creditor's claim).
Seizure of assets and proceeds pending the criminal trial
Both the public prosecutor and the investigating judge may, during an investigation, order the seizure of any goods that can be the subject of a confiscation order upon an eventual conviction (see below), or that can serve to establish the truth or to avoid the disappearance of the goods prior to trial.21
Confiscation after a conviction
If the accused is sentenced for an offence that qualifies as a serious crime or major offence according to Belgian law,22 the court must order the confiscation of the object of the criminal offence and the items used for committing the criminal offence if they are property of the convicted person, as well as the confiscation of the proceeds of the criminal offence. The court can also order the confiscation of the financial gains resulting from the criminal offence, including any assets acquired from the original gains of the criminal offence and any income generated from its investment, but only if the public prosecutor specifically requested this last element.23 If the assets are not found among the possessions of the convicted person, the judge will estimate the total value of these assets and will order the confiscation of goods that have an equivalent value. The court will order the restitution to the civil claimant of any confiscated goods or money belonging to him or her.24 The court can also order the confiscation of assets located outside Belgium.25
ii Obtaining evidence
Obtaining evidence in civil matters
There is no specific action available under Belgian civil procedural law that can be used to obtain evidence in cases of fraud or dishonesty. As such, victims of fraud or dishonesty, who carry the burden of proof, will have to rely on the generally available actions to obtain information to support their claim in court.
A full-fledged document discovery or disclosure (as known under US or UK law) is not available in Belgian civil procedure. However, upon request by any party to the proceedings, a Belgian court may order the production of specific documents that are in the possession of either another party to the proceedings, or a third party.26 The documents must contain the evidence of a certain fact that can be relevant (material) for the outcome of the case. To avoid fishing expeditions, the party making the request must precisely identify and describe the requested documents as well as the relevant facts for which the documents may provide supporting evidence. A party may request the production of documents during the proceedings on the merits, but it may also do so in separate proceedings (e.g., preliminary relief). The party may also request that the relevant court additionally orders the payment of a periodic penalty for any breach of the order, as an additional means of enforcement of the main order to produce the documents.
Obtaining evidence in criminal matters
In criminal matters, the public prosecutor and the civil claimant carry the burden of proving, beyond reasonable doubt, that the accused committed the alleged criminal offence.27 Belgian criminal procedure does not have rules on the evidential value of elements of proof; the prosecutor can present all evidence that was legally collected during the investigation to prove the facts, and the court can evaluate freely the credibility of the evidence submitted.28 Evidence gathered in violation of procedural rules can be excluded and removed from the file (by the Council Chamber or Chamber of Indictment) or excluded from the debates (before the trial court) if the procedural rules that are violated are sanctioned with nullity, or the breach is so severe that the reliability of the evidence is lost or the rights of defence of the accused have been violated.29
Fraud in specific contexts
i Banking and money laundering
Three types of criminal acts constitute money laundering:30
- the acquisition, trading, possession or management of proceeds from a criminal offence, assets acquired therewith or income derived from the investment thereof (illegal gains);
- transferring or converting illegal gains to hide their illegal origin, or to assist criminals in escaping the legal consequences of their actions; and
- hiding or concealing the origin or ownership of illegal gains.
Under the first and last of these criminal provisions, the money launderer must have known or should have known about the illegal origin of the assets; however, this does not require the prosecutor to be able to pinpoint the specific criminal offence at origin, but rather to show that the assets cannot result from any legal activities, and to show that the money launderer should have known this.31 Finally, the perpetrator of the criminal offence that generated the illegal proceeds cannot be prosecuted for money laundering unless the criminal offence that generated the illegal proceeds was committed abroad and the perpetrator cannot be prosecuted in Belgium for that criminal offence. The court must order the confiscation of the proceeds from crime with regard to all perpetrators and co-conspirators.
In addition, measures to prevent money laundering require certain institutions and individuals, including banking institutions, to notify the Belgian Financial Intelligence Unit of any suspicious transactions.32
As explained earlier, Article 489, 489 bis and 489 ter of the BCC specifically covers bankruptcy fraud by sanctioning members of a company's management or directors for having committed fraud in relation to the company's bankruptcy.
Several civil remedies are also available to creditors seeking protection from acts by the insolvent party that occurred right before the insolvency and by which the insolvent party intended to fraudulently harm the rights of the creditors (e.g., wilful impoverishment).
In a manner similar to most other jurisdictions, arbitral tribunals having their seat in Belgium may not find a person guilty of criminal offences. Parties may only opt for arbitration in Belgium if the dispute that is submitted to the decision of the arbitrators is of a 'patrimonial' nature. Although most arbitrations deal with contractual liability, nothing prevents an arbitral tribunal from deciding on claims arising out of tortious liability.
Therefore, depending on the circumstances of the matter at hand and subject to an agreement to that effect, an arbitral tribunal in Belgium may adjudicate disputes involving claims for liability in tort or contract that result from fraud or dishonest behaviour of a certain party. Such a tribunal cannot, however, order a conservatory attachment of assets (see Section III.i). Any party to the arbitration proceedings may request such an attachment from the Belgian state courts, which can issue injunctions in aid of domestic or foreign arbitration proceedings.
i Conflict of law and choice of law in fraud claims
If a fraud claim encompasses one or more cross-border elements, the Belgian civil court should (after it has found that it has jurisdiction: see Section II.i) determine the applicable law on the basis of Belgian conflict-of-law rules.
Matters of procedure are usually governed by local law (lex fori), meaning that a Belgian court will apply Belgian civil procedure law to any procedure pending in Belgium.
Next, the Belgian court will determine the law applicable to the merits of the case.
For tortious claims, it will do so on the basis of Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation). By way of a general rule, the applicable law is the law of the country where the damage occurs (lex loci damni), irrespective of where the event giving rise to the damage occurred (locus acti) and irrespective of where the indirect consequences of that event occurred.33 However, if both claimant and defendant had their habitual residence in the same country when the damage occurred, the substantive law of that country will apply.34 Furthermore, if it follows from all circumstances of the case that it is manifestly more closely connected to another country,35 or in the event of a choice of law clause,36 the lex loci damni will not apply either.
If the claim is based on contractual liability, the Belgian civil court will determine the law applicable to the merits on the basis of Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I Regulation). This Regulation gives (in principle) precedence to a choice of law clause. In the absence of such a clause, the type of contract will be the relevant criterion to determine the applicable law (e.g., the law of the country of residence of the seller will apply to a sales contract). Some exceptions do apply, however, as well as specific rules for all contracts that the Rome II Regulation does not expressly deal with.
Both the aforementioned Rome Regulations have a universal scope of application, meaning that any law specified by the Regulations might apply (even the law of a non-Member State).37 A Belgian court will, therefore, only rarely apply the (subsidiarily applicable) Belgian Code of Private International Law (which moreover provides for some comparable criteria).
Finally, under Belgian private international law rules,38 Belgian courts must apply the applicable foreign law in accordance with the interpretation given to it in the relevant foreign country.
ii Collection of evidence in support of proceedings abroad
The answer to a request for the collection of evidence to support foreign civil or criminal proceedings depends on which state (EU or non-EU) requested the international assistance.
Collection of evidence in support of foreign civil proceedings
Within the EU, the gathering of evidence in civil and commercial matters is facilitated by Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (Evidence Regulation). Its contents are largely similar to those of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention).39 The Evidence Regulation allows direct communication between EU Member State courts through the use of standard forms. These courts can request one another to gather evidence in the other's home jurisdiction. The Evidence Regulation even provides for a procedure through which the courts of an EU Member State can go and gather the relevant evidence abroad themselves.
In instances where the Evidence Regulation is not applicable, the Belgian authorities may take evidence for the purpose of non-domestic civil court litigation on the basis of the Hague Convention of 1 March 1954 on Civil Procedure or on the basis of its national law.40 Belgium is not a party to the 1970 Hague Convention.
Collection of evidence in support of foreign criminal investigations
Belgium has implemented the EU Directive regarding the European Investigation order in criminal matters.41 Consequently, requests to and from another EU Member State that has also adopted this Directive, must, in principle, be recognised and executed. The Directive covers almost all investigative measures, such as interviewing witnesses, obtaining information about and monitoring of bank accounts, obtaining information that the executing authority already has, and (with additional safeguards) the interception of telecommunications. An authority may only refuse the execution of a European investigation order on the grounds mentioned in Article 11 of the Directive (human rights, territoriality, national security and double jeopardy). The executing authority may, however, opt for a less intrusive measure if it allows similar results to be achieved.
As regards incoming requests from states outside the EU, Belgium is a party to a number of multilateral42 and bilateral43 treaties that stipulate that the contracting parties must provide mutual assistance to each other in criminal matters, including the collection of evidence in support of foreign criminal proceedings.
Finally, in the absence of a mutual assistance treaty, any request for assistance in criminal matters could be granted based on international comity.
iii Seizure of assets or proceeds of fraud in support of the victim of fraud
Belgium's Law of 5 August 200644 governs requests by competent criminal authorities of other EU Member States for the seizure of assets located in Belgium. Seizure orders must be accompanied by a certificate in Dutch, French, German or English, and are subject to approval by the investigating judge.45 The investigating judge must render his or her decision on whether to issue the order within 24 hours, if possible, and no later than within five days. The seizure order will be executed in accordance with Belgian law, and execution will be refused if seizure is not available for equivalent criminal offences under Belgian law. In addition, certain grounds for refusal exist, including immunity, ne bis in idem, or serious risks of violating Article 6 of the European Convention on Human Rights. Any person whose rights are prejudiced by the seizure may oppose the measure before the investigating judge.46
Requests for the seizure or confiscation of assets in Belgium made by non-EU Member States that are party to a bilateral or multilateral agreement on mutual assistance with Belgium47 are executed in accordance with the Law of 20 May 1997 on international cooperation with regard to the execution of seizures and confiscations.48 Several conditions apply:
- the requesting state has entered into a bilateral or international agreement with Belgium;
- the requesting party is a judicial authority;
- the facts of the case or similar facts would also constitute a criminal offence in Belgium;
- the suspect has not been convicted in Belgium for the same facts; and
- a similar case in Belgium would warrant seizure or confiscation by the Belgian criminal authorities.49
iv Enforcement of judgments granted abroad in relation to fraud claims
Enforcement of foreign judgments in civil matters
The enforcement of foreign civil judgments rendered in another EU Member State (e.g., in relation to fraud claims) falls under the realm of the aforementioned Recast Brussels I Regulation. Its predecessor, the Brussels I Regulation, continues to apply to judgments given in legal proceedings instituted before 10 January 2015, and to authentic instruments and court settlements approved or concluded before that same date.50
Judgments within the scope of the (old) Brussels I Regulation can be enforced in another EU Member State if they are enforceable in the Member State of origin and if, moreover, the party seeking enforcement has successfully applied for a declaration of enforceability in the country where it seeks the enforcement. The foreign judgment shall not be enforced if it infringes upon one or more of the grounds for refusal listed in Articles 34 or 35 of the Brussels I Regulation (e.g., if it is contrary to the international public policy of the Member State where the enforcement is sought). Under no circumstances may the foreign judgment be reviewed on its merits.
The Recast Brussels I Regulation now drops the requirement of a prior declaration of enforceability. According to the new provisions, a judgment rendered in an EU Member State will be recognised in the other Member States without any specific procedure, and, if enforceable in the Member State of origin, will be enforceable in the other Member States without any prior declaration of enforceability.51 Recognition and enforcement will only be refused if the party that wishes to avoid recognition or enforcement actively applies for a refusal (see also Section V.v).
If no convention or EU regulation applies (and subject to the application of a lex specialis), the enforcement of foreign judgments is subject to the provisions of the Belgian Code of Private International Law (Articles 22–31). As a rule, all judgments (on the merits) in civil and commercial matters (subject to their enforceability in the country of origin) are (in principle) eligible for enforcement in Belgium. The party seeking such enforcement must apply for a declaration of enforceability before the competent Belgian court of first instance.52 Enforcement is not subject to any reciprocity requirement between Belgium and the country of origin. The Belgian enforcement court will not review the merits. However, enforcement is subject to the foreign judgment not infringing upon any of the grounds for refusal that are exhaustively listed in Article 25 of the Belgian Code of Private International Law (e.g., the classic international public policy exception; see also Section V.v).
Enforcement of foreign criminal case judgments
The enforcement of judgments in criminal matters rendered by the courts of other EU Member States is governed by the Law of 5 August 2006. The request for a judgment's enforcement must be accompanied by a copy of the court's decision and a certificate in French, Dutch or English. Unlike seizure orders, other EU Member States' judgments in criminal matters can be executed by the Belgian public prosecutor without requiring the approval of the investigating judge. The judgments will be executed in Belgium in accordance with Belgian law. In addition to the general grounds for refusal, such as immunity, ne bis in idem or serious risks of violating Article 6 of the European Convention on Human Rights, specific grounds for refusal exist as well. These include the Belgian statute of limitations for the collection of criminal fines, the acts partially or entirely being committed in Belgium,53 and the defendant's right to be heard. Finally, double incrimination does not apply if fraud is involved.
As with orders for seizure of assets, the enforcement of confiscation orders issued by non-EU Member States is governed by the Belgian Law of 20 May 1997 (see Section V.iii).
v Fraud as a defence to enforcement of judgments granted abroad
Fraud may be a defence to enforcement if brought under the umbrella of (international) public policy.
Article 34(1) of the Brussels I Regulation states that a Belgian court may refuse recognition or enforcement of a foreign judgment if the judgment manifestly runs counter to (Belgian international) public policy. The Recast Brussels I Regulation provides for the same defence, but the competent court will only refuse enforcement on that ground after application to that effect by the party against whom enforcement is sought (see Section V.iv). The Brussels I Regulations also provide for other grounds of refusal.
Article 25(1) of the Belgian Code of Private International Law similarly does not allow recognition or enforcement of a foreign judgment if the result of that recognition or enforcement is manifestly incompatible with (Belgian international) public policy.
The concept of (Belgian international) public policy encompasses both procedural and substantive public policy. The court will in that respect consider the extent to which the matter is connected to the Belgian legal order, as well as the seriousness of the consequences that might result if it were to recognise or enforce the foreign judgment.
Even though fraud is not available before the Belgian courts as an autonomous defence to prevent the enforcement of a judgment granted abroad, Belgian courts may consider that a judgment tainted with fraud contravenes Belgian concepts of international public policy, and is, therefore, not eligible for enforcement in Belgium.
Several initiatives are being taken at EU level. In particular, a proposal for regulation on the creation of an EU prosecutor's office that would oversee and assist national prosecutors in their prosecution of fraud cases for the misappropriation of EU funds is currently pending.54
Another noteworthy instrument, which entered into force in 2017, is Regulation (EU) No. 655/2014 of 15 May 2014, establishing a European account preservation order (EAPO). It provides for a procedure facilitating cross-border debt recovery in civil and commercial matters. It applies to situations where the debtor holds a bank account in an EU Member State other than the one or ones where the creditor files the EAPO application or where the creditor is domiciled. The order obtained by the creditor in his or her home country will not require a prior recognition or declaration of enforceability to be enforceable in another Member State.
Many aspects of both Belgian judicial law and Belgian (substantive) civil law are currently subject to a wave of ongoing reforms, but the topics discussed in this chapter do not seem likely to be affected. A new code on civil evidence has been adopted, but this is in many respects a codification of existing case law.
1 Hans Van Bavel is a partner and Tobe Inghelbrecht is a senior associate at Stibbe. This chapter constitutes an update of the 2015 chapter, to which Bart Volders, Jachin Van Doninck and Karlien Vanderhauwaert (all former attorneys at Stibbe) also contributed.
2 For further discussion of anti-money laundering rules see Section IV.
3 Article 505, Section 2 of the BCC.
4 Article 5 of the BCC.
5 Article 3 of the BCC; a crime is considered to be committed in Belgium as soon as any of the elements of the crime occurred in Belgium. It is therefore not sufficient for a crime to be considered to have been committed in Belgium if only the effects of the crime resulted there.
6 Article 4 of the BCC.
7 Article 7 of the Introductory Title to the BCC.
8 Article 7.2 of the Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Recast Brussels I Regulation).
9 Article 7.1 of the Recast Brussels I Regulation.
10 Article 17 of the Belgian Civil Code.
12 Article 3 of the introductory title to the BCC; Belgian Court of Cassation, 3 April 2007, P.07.0041.N; 24 October 2006, P.06.0696.N; 11 February 2003, P.02.0608.N.
13 Article 1384 of the Belgian Civil Code.
14 Article 2262 bis, Section 1, Paragraph 1 of the Belgian Civil Code.
15 Article 2262 bis, Section 1, Paragraph 2-3 of the Belgian Civil Code.
16 Article 2244 of the Belgian Civil Code.
17 Article 21 of the introductory chapter to the BCC.
18 Both attachment measures are dealt with by the Belgian Code of Civil Procedure (see Articles 1413–1493 (conservatory attachment) and Articles 1494–1675 of the Code of Civil Procedure (attachment in execution)).
19 Article 1445 Belgian Code of Civil Procedure.
20 Article 584 of the Belgian Code of Civil Procedure. Article 1395/1 of the Belgian Code of Civil Procedure.
21 Articles 28 bis Sections 3, 35, 35 bis, 35 ter and 89 of the Belgian Code of Criminal Procedure (BCCP) .
22 Article 1 of the BCC.
23 Articles 42, 43 and 43 bis of the BCC. In the event of a conviction for money laundering, the confiscation of the laundered goods or monies is mandatory.
24 Article 43 bis of the BCC.
25 Article 43 ter of the BCC.
26 Article 877 of the Belgian Code of Civil Procedure.
27 Article 326 of the BCCP.
28 Article 154 of the BCCP.
29 Article 32 of the BCCP.
30 Article 505 Section 1, 2°–4° of the BCC.
31 Belgian Supreme Court, 21 June 2000, AR P.99.1285.F, P.00.0351.F en P.00.0856.F, nr 387; 9 May 2006, P.060.242.N.
32 Law of 11 January 1993, as amended, Belgian Official Gazette 2 February 1993, p. 2,828; the Law was last amended in 2014 (see Section IV).
33 Article 4(1) of the Rome II Regulation.
34 Article 4(2) of the Rome II Regulation.
35 Article 4(3) of the Rome II Regulation.
36 Article 14 of the Rome II Regulation.
37 Article 3 of the Rome II Regulation.
38 Article 15(1) of the Belgian Code of Private International Law.
39 Denmark is not a party to the Evidence Regulation.
40 The ECJ has endorsed such taking of evidence without recourse to the Evidence Regulation (ECJ C-170/11, Lippens and ECJ C-332/11, ProRail).
41 Directive 2014/41 EU of the European Parliament and the Council regarding the European Investigation Order in criminal matters, Official Journal of the European Union, L 130/1.
42 Within the framework of the Council of Europe: European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters and its additional protocols of 17 March 1978 and 8 November 2001; in addition to the Council of Europe members, the treaty has also been ratified by Brazil, Israel and South Korea. In the European Union: Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union, the Agreement of 19 December 2003 between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union and the 2001 Protocol. In the framework of the Benelux Union: the treaty of 27 June 1962, concerning extradition and mutual assistance in criminal matters between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands.
43 For example, the Agreement of 25 June 2003 on Mutual Legal Assistance between the EU and the US. Another example is the Agreement of 30 November and 15 December 2009 on Mutual Legal Assistance in criminal matters between the EU and Japan. However, there is no reference to the implementation or transposition of the agreement by Member States of the EU.
44 Seizure is also referred to as freezing in the relevant Council Framework decisions. The Law of 5 August 2006 regarding the application of the principle of mutual recognition of criminal court decisions between EU Member States, as amended by the Law of 19 March 2012, Belgian Official Gazette 4 April 2012, implements the Council Framework Decisions 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, and 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial.
45 Implementing Council Framework Decision 2003/577/JHA of 22 July 2003.
46 Article 15 of the Law of 5 August 2006 and Article 61 quater of the BCCP.
47 European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters and its additional protocols of 17 March 1978 and 8 November 2001; Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime of 1990; Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union; Bilateral Mutual Legal Assistance Agreement between Belgium and the US of 25 June 2003; Council of Europe Convention of 16 May 2005 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime on the Financing of Terrorism.
48 Belgian Official Gazette, 3 July 1997, p. 17,727, as modified by the Law of 28 July 2006, Belgian Official Gazette, 28 July 2006, p. 36,940.
49 Articles 2 and 9 of the Belgian Law of 20 May 1997.
50 Article 66.2 of the Recast Brussels I Regulation.
51 Articles 36 and 39 of the Recast Brusssels I Regulation.
52 Article 23, Section 3 of the Belgian Code of Private International Law.
53 This ground for refusal does not apply to money laundering.
54 Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office; see eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52013PC0534:en:NOT.