Summary proceedings in Belgium: when and how do they work?

When a situation is urgent and ordinary proceedings would take too long, summary proceedings (kort geding / référé) offer a fast solution. But when are summary proceedings possible in Belgium, how does a summons in summary proceedings work and what can the judge decide? This article gives a practical overview of this urgent procedure under Belgian law.

What are summary proceedings?

Summary proceedings are an urgent procedure before the president of the court, governed by Article 584 of the Judicial Code (Gerechtelijk Wetboek / Code judiciaire). The president does not rule definitively on the parties’ rights, but orders a provisional measure to prevent urgent harm or bring it to an end. Later proceedings on the merits may lead to a different outcome, because the order (beschikking / ordonnance) does not prejudice the merits of the case.

The order is provisionally enforceable (Article 1039 of the Judicial Code): it must be complied with, even if an opposition or an appeal is lodged. The president may, however, make enforcement conditional on the provision of security.

The conditions for summary proceedings

• Urgency: according to settled case law, there is urgency when the fear of harm of a certain magnitude, or of serious inconvenience, makes an immediate decision desirable. A decision within the time frames of ordinary proceedings would then come too late. A party that has itself remained inactive for a long time will find it hard to rely on urgency.
• Provisional nature: the measure requested must be provisional and may not determine the parties’ rights definitively. The judge does examine the parties’ rights, but only to assess whether they show a sufficient prima facie case (schijn van recht / apparence de droit) to justify a provisional measure.

Practical examples

• Businesses: a provisional ban on unfair practices, the continuation of supplies that are vital to a business, or the protection of trade secrets.
• Construction and neighbours: stopping works that threaten to cause damage, or appointing a court expert to record damage before it disappears. See also our article on neighbour nuisance and easements.
• Liability: an interim payment (provisie / provision) on account of damages where the debt can hardly be disputed and the claimant urgently needs funds.
• Intellectual property: a provisional ban on a manifest infringement of a trade mark or a copyright.

For unfair market practices and infringements of intellectual property rights, there is also the action for cessation (stakingsvordering / action en cessation). It follows the form of summary proceedings, but does not require urgency and leads to a decision on the merits.

Family matters follow their own rules: the family court (familierechtbank / tribunal de la famille) handles urgent cases itself, without the need for summary proceedings before the president. Read our article on urgent measures before the family court.

What can the judge order in summary proceedings?

The president may order any provisional measure needed to safeguard the parties’ rights: a prohibition or an order to do something, the appointment of a court expert, sequestration, the preservation of evidence or an interim payment. He cannot, however, rule definitively on the merits of the case, such as the termination of a contract or the award of final damages. That requires proceedings on the merits.

To ensure compliance, the president may attach a penalty payment (dwangsom / astreinte) to the measure (Article 1385bis of the Judicial Code). A penalty payment is, however, excluded where the order is to pay a sum of money, such as an interim payment.

Which court has jurisdiction?

• the president of the court of first instance (rechtbank van eerste aanleg / tribunal de première instance), who has the broadest jurisdiction;
• the president of the enterprise court (ondernemingsrechtbank / tribunal de l’entreprise), for disputes within that court’s jurisdiction;
• the president of the labour court (arbeidsrechtbank / tribunal du travail), for employment and social security disputes.

How do summary proceedings work?

Summary proceedings are usually brought by a writ of summons (dagvaarding / citation) served by a bailiff (gerechtsdeurwaarder / huissier de justice). The period between service and the hearing is in principle at least two days (Article 1035 of the Judicial Code). In cases of extreme urgency, the president may allow a summons from hour to hour (van uur tot uur / d’heure à heure) under Article 1036 of the Judicial Code.

At the hearing, both parties present their arguments, often with brief written submissions and supporting documents. The president then delivers an order, usually within a short time.

In cases of absolute necessity, for example where the element of surprise is essential to secure evidence, the president may also decide on an ex parte application (eenzijdig verzoekschrift / requête unilatérale), without the other party being heard first. That party can subsequently file third-party opposition (derdenverzet / tierce opposition). If the application is refused, the applicant can appeal.

How do you prepare for summary proceedings?

Summary proceedings demand speed, but also a well-prepared file. Gather all documents that show the urgency and your right: contracts, correspondence, photographs, official findings recorded by a bailiff.

If the situation allows, first send a formal notice (ingebrekestelling / mise en demeure): this shows that the other party was given the chance to put things right itself. Then act quickly, because the judge assesses urgency at the time of the decision. A situation that has been resolved in the meantime no longer justifies any measure.

Remedies against an order in summary proceedings

An order in summary proceedings can be appealed, as a rule within one month of service (Article 1051 of the Judicial Code). The appeal is heard by the court of appeal (hof van beroep / cour d’appel) or, for orders of the president of the labour court, by the labour court of appeal (arbeidshof / cour du travail). The appeal does not suspend enforcement.

A party against whom an order was made by default can, as a rule, lodge an opposition (verzet / opposition), also within one month of service (Article 1048 of the Judicial Code).

Risks and costs of summary proceedings

Summary proceedings are a powerful tool, but not without risk. If your claim is dismissed, for instance because urgency has not been established, you will as a rule bear the costs, including a procedural indemnity (rechtsplegingsvergoeding / indemnité de procédure) for the other party.

Moreover, an order is enforced at the risk of the party enforcing it (Article 1398 of the Judicial Code). If the measure later proves unjustified on the merits, you may have to compensate the damage the other party suffered as a result. A thorough analysis beforehand is therefore essential.

Frequently asked questions

How quickly can summary proceedings be heard?

Depending on the court and the degree of urgency, within a few days to a few weeks. In exceptional cases, with a summons from hour to hour, it can be even faster.

What if the other party does not comply with the order?

The order is enforceable: a bailiff can serve it and, if necessary, enforce it, for example through attachment. If the president attached a penalty payment, the other party incurs that penalty as soon as it fails to comply with the order after service, unless the president allowed it a period to do so. The penalties incurred can then be recovered from that party.

Do I still need to bring proceedings on the merits afterwards?

Not necessarily. The parties often abide by the provisional decision or reach an agreement on that basis. Proceedings on the merits remain possible, however, and the president sometimes makes the measure conditional on such proceedings being brought within a certain period.

What is the difference between a summons in summary proceedings and an ex parte application?

With a summons, both parties are heard before the president decides. The ex parte application is the exception: it is only allowed in cases of absolute necessity, and the other party can only respond afterwards, by way of third-party opposition.

Novex Advocaten is at your side

We quickly assess whether your situation qualifies for summary proceedings, draft the summons or the application and plead the case. See also our articles on the procedural indemnity and on precautionary attachment.

Call 0484 99 22 72 or email asfour@novexadvocaten.be: in urgent matters, every day counts.