The new insolvency law

The bankruptcy act

The Bankruptcy Act and the Enterprise Continuity Act merge into one and are integrated together into the Code of Economic Law.

 

In addition, points were thoroughly modified and a number of punctual adjustments were made.

The law dates from 11 August 2017 and came into force on 1 May 2018.

The main principles

Scope

The notion of ‘enterprise’ is being significantly broadened. Previously, it was only about ‘commercial’ companies. From now on,

  • any natural person who pursues a professional activity as a self-employed person, including managers and directors in companies and professions, will be considered to be an enterprise. This is an important step forward as many professions face financial difficulties
  • any legal person, without taking into account whether or not it engages in a commercial activity. Non-profit organisations, agricultural companies and foundations will therefore also be able to benefit from the new law
  • Every organisation without legal personality except governments
Second chance

The new law aims to facilitate a faster restart of a new activity, provide a better ‘second chance’ and stop the stigmatisation. While bankruptcy was also literally described as a ‘failure’ previously, bankrupt entrepreneurs will henceforth be considered as persons who have gained experience, with a higher chance of success in the future.

 

It concerns the so-called ‘excusability’. Previously, it took months or even years for the entrepreneur in question to be exempted from the fault of bankruptcy. The new law replaces excusability with a faster debt forgiveness.

Digitisation

The legislature has also used this reform to further focus on the thorough digitisation of insolvency proceedings. For example, the Central Solvency Register, which was launched in April 2017, will henceforth also be used as a database for insolvency proceedings other than bankruptcy.

Amicable agreement renewal

The amicable agreement guarantees a creditor that he can keep the amounts already received. If such a settlement is declared enforceable, the creditor may – if the debtor does nothing – enforce the execution in court.

 

From now on, a debtor who is in a difficult financial situation and is unable to put things in order himself can now call on a business mediator to assist him in negotiating an agreement with his creditors.

Cross-border insolvency

The new law also introduces new rules on cross-border insolvency and corporate groups under the European Insolvency Regulation, in order to address a number of practical problems that may arise in this context.

Extension of directors’ liability

Legislature has also made some changes to directors’ liability in such a way that directors of all companies can be held liable.

 

Of course, this new law will affect the statistics on bankruptcies. We will keep you informed of the evolution and the statistical impact.

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