Bankruptcy summons in Belgium from the NSSO, the tax authorities or a creditor: your options

In Belgium, a bankruptcy summons is, for many business owners, the moment when the seriousness of the situation is set out in black and white. The National Social Security Office (NSSO, RSZ / ONSS) and the tax authorities are the most active claimants, but suppliers, landlords and banks also summon businesses for bankruptcy. What few business owners know is that being summoned for bankruptcy does not mean you are bankrupt.

A defence is possible, and sometimes there is a better alternative. This article explains how the procedure before the enterprise court (ondernemingsrechtbank / tribunal de l’entreprise) works, what the court examines and what you can do in practice.

Who can summon you for bankruptcy?

Bankruptcy is declared by the enterprise court, either on a bankruptcy filing by the business owner or on a summons by one or more creditors. The public prosecutor (openbaar ministerie / ministère public) can also apply for bankruptcy, for instance after the Chamber for Enterprises in Difficulty (Kamer voor ondernemingen in moeilijkheden / chambre des entreprises en difficulté) has referred the file. The court cannot declare a business bankrupt of its own motion.

Bankruptcy law is set out in Book XX of the Code of Economic Law and does not apply only to traders and companies. Liberal professions, farmers and non-profit associations (vzw / ASBL) can also be declared bankrupt. Public-law legal entities are in principle excluded.

How does a bankruptcy summons work in Belgium?

The summons is served on you by a bailiff (gerechtsdeurwaarder / huissier de justice) and states the date on which the case will come before the enterprise court. There is often little time between service and the hearing. Use that time to update your figures, prepare your defence and negotiate with the claimant.

At the hearing, the court may deal with the case immediately or adjourn it, for example to give you the opportunity to agree a payment plan or to submit documents. The judgment follows: either the claim is dismissed or bankruptcy is declared.

What does the enterprise court examine?

The court checks whether both statutory conditions are met: the business has persistently ceased to pay its debts, and its creditworthiness has been undermined. It is for the claimant to show that this is plausible. A merely temporary payment problem is not enough.

If you can show that you still have prospects, for example through a payment plan, a serious investor, outstanding receivables from solvent customers or seriously disputed debts, bankruptcy is not inevitable. The court assesses the situation as it stands on the day of its judgment, so whatever you arrange between the summons and the hearing counts.

Your options for a defence

• Appear in court, or have a lawyer represent you. If you do not appear, bankruptcy is often declared without your defence being heard.
• Dispute the claim if it is incorrect: time-barred or inaccurate amounts, invoices already paid or seriously disputed debts do not simply count.
• Agree a payment arrangement with the claimant, preferably before the hearing. The NSSO and the tax authorities each have their own procedure for payment plans.
• Ask for an adjournment to finalise an arrangement or financing. The court is not obliged to grant one, but a credible file helps.
• Apply for judicial reorganisation (gerechtelijke reorganisatie / réorganisation judiciaire). As long as the court has not ruled on that application, you cannot be declared bankrupt (Article XX.44 of the Code of Economic Law), and once the procedure has been opened you benefit from a moratorium against your creditors. This tool does, however, require a business with a future and a serious plan.

Please note: even if you pay the creditor who summoned you in full, the risk remains if other debts remain unpaid. Other creditors or the public prosecutor can then still apply for bankruptcy.

A payment plan with the NSSO or the tax authorities

The NSSO and the collection services of the Federal Public Service Finance (FOD Financiën / SPF Finances) grant payment plans under certain conditions. They generally expect you to pay current contributions and taxes correctly and the proposed plan to be realistic. Apply for the plan as early as possible, preferably before you are summoned, and submit your cash-flow forecast.

A plan you cannot keep to merely shifts the problem: new arrears often lead to a new summons, and by then you will have less credibility with the court. If VAT is involved, also read our article on VAT debts, payment plans and directors’ liability.

When is it wiser to file for bankruptcy yourself?

If the business is no longer economically viable, it may be wiser to file for bankruptcy yourself. You then stay in control, comply with the statutory duty to file within one month of ceasing payments and avoid the criticism that you waited too long. For how this works in practice, see our article on filing for bankruptcy with the enterprise court.

For directors, this choice matters. Anyone who continues a loss-making activity when there was no longer any reasonable prospect of saving the business risks personal liability (Article XX.227 of the Code of Economic Law). For unpaid VAT and withholding tax on earned income (bedrijfsvoorheffing / précompte professionnel) there is also a specific tax liability for directors, and in certain cases a similar rule applies to social security contributions (Article XX.226 of the Code of Economic Law). We carry out that assessment with you on the basis of the figures; see also our article on directors’ liability in bankruptcy.

After the bankruptcy judgment

If bankruptcy is declared, the court appoints a trustee (curator / curateur) and a supervisory judge (rechter-commissaris / juge-commissaire). An extract of the judgment is published in the Belgian Official Gazette (Belgisch Staatsblad / Moniteur belge), and the bankruptcy file is then managed electronically in the Central Solvency Register (RegSol). From the judgment onwards, the bankrupt loses the management of their assets, which passes to the trustee.

Remedies are available against the judgment, subject to conditions and within a short time limit of fifteen days (Article XX.108 § 3 of the Code of Economic Law), but the judgment is provisionally enforceable. If the business owner is a natural person, for bankruptcies opened since 1 September 2023 they are in principle automatically discharged from their remaining debts when the bankruptcy is closed, unless the discharge is refused because of manifestly serious misconduct that contributed to the bankruptcy. For more information, read our articles on your rights and obligations after the bankruptcy judgment and on debt discharge after bankruptcy.

Frequently asked questions

How much time do I have after the summons is served?

Usually not much: the hearing date is stated in the summons and is often close. An adjournment can sometimes be obtained at the first hearing, but the court is not obliged to grant one. Contact a lawyer immediately, so that your defence and documents are ready.

The NSSO debt is partly disputed. Does that matter?

Certainly. A seriously disputed debt does not in itself prove that you have persistently ceased to pay. We present that defence with supporting documents and, where necessary, dispute the debt itself in separate proceedings.

Can I still propose a payment plan at the hearing?

You can, but the court is not obliged to wait and the claimant is not obliged to agree. Negotiate before the hearing, therefore, with a concrete proposal and evidence that you can keep to it.

Bankruptcy was declared while I was not present. What now?

Remedies are available against a bankruptcy judgment under certain conditions, but the time limits are short: fifteen days from service of the judgment for an objection, or from publication in the Belgian Official Gazette for third-party opposition and appeal. Contact a lawyer immediately and, in the meantime, cooperate fully and in good faith with the trustee.

If my company goes bankrupt, am I bankrupt too?

No. The director of a company is not declared bankrupt personally, but may be held personally liable, for example under a personal guarantee or through a liability claim. It is different for a sole proprietorship: there, you are declared bankrupt yourself as a natural person. Also read our article on bankruptcy of a sole proprietorship compared with a company.

Novex Advocaten can help

We defend business owners who are summoned for bankruptcy, negotiate with the NSSO, the tax authorities and other creditors and, where it makes sense, prepare a judicial reorganisation. Also read our articles on judicial reorganisation and on the Chamber for Enterprises in Difficulty.

Call 0484 99 22 72 or email asfour@novexadvocaten.be: the hearing date is approaching fast.