In order to address the most pressing issues, directly (compulsory closures, cancellation of events) or indirectly (lack of stock, lack of personnel, drop in demand) affecting Belgian enterprises, in the midst of Covid-19 health crisis, the federal government published a royal decree on 24 April 2020, designed to implement a temporary moratorium on enforcement measures against companies:
– whose viability is threatened by the Covid-19 pandemic and its aftermath, and
– as long as they were not already in default of payment on 18.03.2020.
It is presumed that these two conditions are met, so that a creditor wishing to take action against his professional debtor will have to go through prior legal proceedings to lift this suspension.
The text provides four measures to protect businesses that are applicable from 24.04.2020 to 17.05.2020 (date which may be extended):
1. Suspension of all precautionary or seizures of movable property,
The moratorium does not however concern precautionary or enforcement seizures of real-estate property. Furthermore, contractual penalties such as “exceptio non adimpleti contractus” (withholding performance penalty for nonperformance of the other party’s contractual obligations) ,right of set-off or right of retention remain in force;
2. No Bankruptcies and dissolutions may be filed by one or more creditors.
Public prosecutors or Ad Hoc administrators, on the other hand, are not concerned by this measure.
3. Automatic extension, for the duration of the moratorium, of the payment deadlines provided for in a judicial reorganization plan.
4. No termination of contract due to non-payment.
In order to prevent this rule from exceeding its objective or generating abuses, the text specifies that the creditor can proceed before a judge to have the ban lifted. If the court grants this request, the creditor will be able to implement the coercive measures in compliance with the procedural rules applicable to it.
Finally, it is important to emphasize the fact that the Royal Decree does not abolish the general obligation to honor all due payments. The moratorium is only intended to protect companies suffering from the economic consequences of the Covid-19 pandemic. If the debtor is not affected in any way by Covid-19, he must and should – if possible, even before due date – make the payment owed. The Royal Decree provides for the implementation rules of these measures.
For more information on that subject, feel free to contact Virginie SCHOONHEYT esq. (firstname.lastname@example.org).
The Cairn Legal team.