Recovering unpaid invoices in Belgium: the approach that works

An unpaid invoice is rarely a legal problem. It is a timing problem. If you set out to recover unpaid invoices in Belgium and handle the first six weeks correctly, you will be paid in many cases without ever seeing a courtroom. If you wait, your claim drains away between promises, partial payments and, eventually, an insolvent debtor.

First: is your debtor a consumer or a business?

Since 1 September 2023, consumer debts have been governed by the mandatory rules of Book XIX of the Code of Economic Law (Wetboek van economisch recht / Code de droit économique). These differ fundamentally from what is permitted between businesses. If you confuse the two, you risk being unable to enforce your penalty clause and your late-payment interest.

Is your client a consumer?

• The first reminder is free of charge. Only after that may costs be charged.
• A period of fourteen calendar days. You must give the consumer that period after the reminder. It starts on the third working day after a paper reminder is sent, or on the day after sending when the reminder is sent electronically.
• Mandatory information. The reminder must state the balance due, the penalty clause that will be claimed, your name and company number, a description of the product or service, the due date and the payment deadline.
• Statutory caps. If payment is still not made within that period, you may charge at most: late-payment interest at the reference interest rate plus eight percentage points, and a fixed compensation of no more than €20 for debts up to €150; €30 plus 10% on the portion between €150.01 and €500; €65 plus 5% on the portion above €500, with an absolute ceiling of €2,000.

Where a lawyer, a bailiff (gerechtsdeurwaarder / huissier de justice) or a collection agency handles amicable recovery, the rules on the amicable recovery of consumer debts in Book XIX (Articles XIX.5 et seq. of the Code of Economic Law) also apply; they have replaced the former Act of 20 December 2002 on the amicable recovery of consumer debts. More on recovering debts from consumers.

Is your client a business?

In that case the Act of 2 August 2002 on combating late payment in commercial transactions applies. You are entitled, automatically and without formal notice, to interest from the day after the due date at the reference interest rate plus eight percentage points. You are also entitled to a fixed compensation of €40 for recovery costs, plus reasonable compensation for actual recovery costs that exceed that amount (Article 6 of that Act).

Your own general terms and conditions help determine what you can claim — provided the client knew and accepted them before or at the time the contract was concluded. This is where things most often go wrong in practice: terms that only appear on the back of the invoice generally come too late. The court may also reduce a manifestly excessive penalty clause. More on late-payment interest and penalty clauses.

How to recover unpaid invoices in four steps

1. The reminder and the formal notice

A reminder is a commercial step; a formal notice (ingebrekestelling / mise en demeure) is a legal one. It formally puts your debtor in default, in many cases starts interest running and becomes the evidence on which every further step is built. It states the amount, the invoice details, the legal basis, a specific deadline and a reservation of all rights.

A formal notice sent by registered post by a lawyer or a bailiff that contains the legally required particulars can also interrupt the limitation period once; a new period of one year then begins to run, although the claim cannot become time-barred before the end of the original period (Article 2244, § 2, of the old Civil Code). More on the formal notice.

2. The IOS procedure between businesses

Where the debt is an uncontested money debt between two businesses, there is a procedure without a judge: the recovery of uncontested money debts (invordering van onbetwiste geldschulden, IOS), governed by Article 1394/20 et seq. of the Judicial Code. Your lawyer instructs a bailiff, who serves a payment demand on the debtor. The debtor then has one month to pay, request payment facilities or dispute the debt.

If the debtor does not respond, the bailiff draws up an official record of non-contestation, which is declared enforceable without any court involvement. Fast and predictable — but only usable when the debt is genuinely uncontested and both parties are registered businesses. More on the IOS procedure.

3. The writ of summons

If the invoice is disputed, or if the debtor is a consumer, court proceedings are needed, usually started by a writ of summons (dagvaarding / citation). Between businesses, the enterprise court (ondernemingsrechtbank / tribunal de l’entreprise) generally has jurisdiction, whatever the amount (Article 573 of the Judicial Code). A consumer is summoned before the justice of the peace (vrederechter / juge de paix) or, for higher amounts, before the court of first instance.

In a well-prepared case, a single hearing is often enough, especially when the debtor does not appear or raises no serious defence. The claim is then backed by the purchase order, proof of delivery, the invoice and the correspondence, and any dispute turns out to have been raised only after the fact.

4. Enforcement

A judgment is not money. Only enforcement by the bailiff after service of the judgment — attachment of wages, attachment of a bank account, seizure of movable goods — actually produces payment. A first-instance judgment is, as a rule, provisionally enforceable: an appeal does not suspend enforcement unless the court decides otherwise (Article 1397 of the Judicial Code). More on attachment.

If there is a risk that your debtor will make assets disappear before judgment, a protective attachment (bewarend beslag / saisie conservatoire) can be made, as a rule with the permission of the attachment judge (beslagrechter / juge des saisies). The claim must then be certain, due and liquidated or capable of provisional estimation, and there must be urgency. More on protective attachment.

When the invoice is disputed

A protest is only a real protest when it is made in time and with reasons. A client who stays silent for months and only raises defects once the formal notice arrives is in a weak position — especially between businesses, where an invoice not protested in time may be treated as accepted and has evidential value. More on disputed invoices.

Cross-border recovery

If your debtor is based in another Member State, you do not necessarily have to litigate in that country. The European order for payment allows you to obtain, through a standardised procedure, a title that is enforceable in all Member States except Denmark.

For claims up to €5,000, there is also the European Small Claims Procedure, which is largely conducted in writing. More on cross-border recovery.

Three mistakes that cost money

1. Waiting. Limitation periods vary according to the nature of the claim, and a debtor’s solvency declines month by month. More on limitation periods for invoices.
2. Accepting partial payments without clear arrangements. Put every arrangement in writing, with an acceleration clause in case of non-compliance. A signed acknowledgement of debt also interrupts the limitation period.
3. General terms and conditions that were never accepted. Without acceptance there is no contractual interest or penalty clause — and you fall back on the statutory rules. More on general terms and conditions.

Frequently asked questions

Can I recover an unpaid invoice without going to court?

Yes, between businesses, through the IOS procedure, provided the debt is uncontested. That procedure does not exist against a consumer: if amicable recovery fails, a judgment is required.

How long can I wait before recovering an invoice?

That depends on the nature of the claim and on the status of your client; some limitation periods are surprisingly short. A writ of summons or a written acknowledgement of the debt by the debtor interrupts the limitation period.

What if my debtor is bankrupt?

As a rule, you can then no longer levy or continue an individual attachment. You file your claim through the Central Solvency Register (Regsol), within the time limit set in the bankruptcy judgment. More on filing a proof of claim.

Novex Advocaten

We handle debt recovery files from the first formal notice through to attachment, for businesses and for private individuals who are themselves being pursued for payment. Send us the invoice, the purchase order and the correspondence, and you will know within the day which route leads to payment fastest.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.