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Last update: 30-10-2009
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Bringing a case to court - Belgium

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Imagine a situation in which you are in dispute with a company, a professional person, your employer, a member of your family or somebody else in your own country or abroad. In order to solve this problem, you ask yourself a number of questions:



 

TABLE OF CONTENTS

1. Do I have to go to Court? 1.
2. Am I still in time to bring a court action? 2.
3. Am I sure that I should go to a court in Belgium? 3.
4. If yes, which particular court should I go to in Belgium, given where I live and where the other party lives, or other aspects of my case? 4.
5. Which particular court should I go to in this Member State, given the nature of my case and the amount at stake? 5.
6. Can I bring a court action by myself or do I have to ask an intermediary, such as to be represented by a solicitor? 6.
7. Who exactly do I apply to: to the reception office or the office of the clerk of the court or any other administration? 7.
8. In which language can I make my application? Can I do it orally or does it have to be in writing? Can I send my application by fax or by e-mail? 8.
9. Are there special forms for bringing actions, or, if not, how must I present my case? Are there elements that have to be included in the file? 9.
10. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the introduction of my application? 10.
11. Can I claim legal aid? ('legal aid' theme) 11.
12. From which moment is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented? 12.
13. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)? 13.

 

PRELIMINARY QUESTIONS BEFORE BRINGING A CASE TO COURT

1. Do I have to go to Court?

It might be better to use alternative dispute resolutions procedures. See this theme.

2. Am I still in time to bring a court action?

Time limits for bringing court actions vary according to the case. This question of time limits can be clarified with a legal adviser or at an information office to citizens on access to law.

3. Am I sure that I should go to a court in Belgium?

See the 'Jurisdiction of the courts' theme.

4. If yes, which particular court should I go to in Belgium, given where I live and where the other party lives, or other aspects of my case?

See the 'Jurisdiction of the courts - Belgium' theme.

5. Which particular court should I go to in this Member State, given the nature of my case and the amount at stake?

See the 'Jurisdiction of the courts - Belgium' theme.

STEPS TO FOLLOW TO BRING A CASE TO COURT

6. Can I bring a court action by myself or do I have to ask an intermediary, such as to be represented by a solicitor?

  • Basically, the first paragraph of section 728 of the Judicial Code provides that “when an action is commenced and pursued, the parties shall appear in person or through a lawyer".

    With the exception of proceedings in the Court of Cassation (sections 478 and 1080 of the Judicial Code), the parties may appear in person before all the courts of the judicial order and present their own submissions and arguments. But the court may forbid them to do so if it acknowledges that the excitement or inexperience of a party will prevent them from presenting their case with proper decorum or the necessary clarity (section 758 of the Judicial Code).

    A litigant who decides not to go to court alone may use the services of a lawyer.

    But a body corporate - a company, for instance - can only appear in person (through its management bodies) or be represented by a lawyer and cannot enjoy the exception provided for by section 728(2) of the Judicial Code (see below).
  • The Judicial Code basically reserves for advocates the right to represent litigants before the courts. Under section 440 of the Judicial Code, the prerogatives attaching to the monopoly of the right of appearance extend to the right to plead, to appear and to present a litigant's defence. Members of the Bar also have a monopoly of the right to sign unilateral applications, except as determined by law (section 1026(5°) of the Judicial Code).

    But in proceedings in the Court of Cassation, the law requires you to be assisted by a lawyer with the title of avocat à la Cour de Cassation, unless your case concerns a civil claim joined to a criminal prosecution (section 478 of the Judicial Code).
  • The law provides for a number of exceptions from the principle of section 728(2) and (3) of the Judicial Code (“when an action is commenced and pursued, the parties shall appear in person or through a lawyer").

    The right to represent a party to an action includes the right to commence it.
    In proceedings before the local court, commercial court and employment courts, the parties may be represented not only by a lawyer but also by the spouse or a parent or parent-in-law bearing a written power of attorney approved by the court (section 728(2) of the Judicial Code).

    In the employment courts (section 728(3) of the Judicial Code):
  • The worker may be represented by a delegate from an organisation representing workers (trade union) bearing a written power of attorney. The trade union delegate may handle all necessary formalities on behalf of the worker, plead the case and receive all notifications relating to the examination and trial;
  • A self-employed person may also be represented by a delegate of a trade organisation in cases relating to his rights and obligations in his status as self-employed or disabled person;
  • In litigation based on the Act of 7 August 1974 establishing a right to minimum means of subsistence (minimex) and litigation based on the Act of 8 July 1976 on public social assistance centres (CPAS/OCMW), a litignat may be assisted or represented by a delegate of a social organisation defending the rights of the class of persons to whom the relevant legislation applies.

Apart from the above exceptions, there are a limited number of other exceptions, in particular as regards child abduction and custody cases based on:

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  • The Hague Convention of 25 October 1980 on the civil aspects of international child abduction, where the action is for return of the child, compliance with custody or visiting rights existing in another state or the organisation of a visiting right; or
  • European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children.

The applicant may be represented by the prosecution service (section 1322quinquies of the Judicial Code) where the claimant approached the central authority.

Where the claim is made via the central authority designated on the basis of one of those Conventions, the application is signed and presented to the president of the court by the prosecution service. If that service has a conflict of interests, it is signed and presented to the president of the court by the lawyer designated by the central authority.

  • Apart from the foregoing general considerations, to determine the possibility of bringing an action in court in person or being represented by a lawyer, a distinction is made according to the manner in which the court action is commenced.

    In Belgian law there are several ways in which an action can be commenced - by summons to appear, by voluntary appearance, by application inter partes or by unilateral application (see infra). It is the application - the action to have one's rights defended - that sets the proceedings in motion. It will generally be served by a court bailiff.

    As a rule, the action begins in the relevant court with the service of a summons by a bailiff (section 700 of the Judicial Code). Voluntary appearance, application inter partes or unilateral application are the exceptions from this general rule.

    Below there are two tables setting out the person bringing the action and whether or not he/she must be represented by a lawyer, depending on the ways in which the action is commenced.

    Person bringing the action
    depending on the way in which the action is commenced:
    Method of commencing action Person bringing the action
Mode de saisine Auteur de la saisine
Summons (sections 727 to 730 of the Judicial Code) The applicant (or his/her lawyer) asks the bailiff to serve the summons.
Voluntary appearance (section 706 of the Judicial Code) The parties to the case (or their lawyers) appear before the court.
Application inter partes (sections 1034bis to 1034sexies of the Judicial Code) The applicant party (or his/her lawyer) begins the proceedings himself/herself.
Unilateral application (sections 1025 to 1034 of the Judicial Code) The applicant party (or his/her lawyer).

Representation by a lawyer or not depending on the way in which the action is commenced:

Method of commencing action

Representation by a lawyer

Summons
Voluntary appearance

Allowed but not compulsory.

Application inter partes
Unilateral applicationCompulsory in the ordinary law for the signing of the application (1) and, apart from the exceptions expressly provided for by law, the application may be presented only by a lawyer (section 1027(1) of the Judicial Code).

(1) The reason why the law demands this is to avoid thoughtless and dilatory actions. At subsequent stages of the proceedings, applicants may be represented and/or assisted by a lawyer, but may also decide to defend their own case.

  • Regarding the subject-matter depending on the way in which the action is commenced:
    The summons is the usual way in which the action is commenced, whatever the subject-matter.

    The application inter partes (sections 1034bis to 1034sexies of the Judicial Code) can be used in the situations determined by the law. The main provisions for applications inter partes are sections 704, 813, 1056(2), 1193bis, 1320, 1344bis, 1371bis and 1454(2) of the Judicial Code and sections 228, 331, 331bis, 340f and 487ter of the Civil Code.

    They concern:
  • voluntary intervention;
  • certain sales of real property
  • alimony and maintenance (orders to pay, increases and reductions, withdrawal) ;
  • rentals of objects ;
  • assessment of costs of attachments.

Applications are made in writing and deposited at or sent by registered letter to the court registry. The registrar summons the parties to the hearing set down by the court.

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Unilateral applications (sections 1025 to 1034 of the Judicial Code) can be used only in the circumstances expressly determined by the law. The main ones are sections 584, 585, 588, 594, 606, 708, 1149, 1168, 1177, 1186 to 1189, 1192 and 1195 of the Judicial Code. They are also used where the inter partes procedure cannot be used as one of the opposing parties is not available.

Unilateral applications are mainly used in unilateral proceedings, for example in cases of absolute need.

Where the application is made in the form of a unilateral application, it must contain a lawyer's signature; otherwise it will be invalid except where the law provides otherwise.

Generally, then, legal representation is needed for a unilateral application.

Voluntary appearance - the parties may appear voluntarily, where the subject-matter of their dispute is within the jurisdiction of the court, before the:

  • court of first instance (district court)
  • employment court ;
  • commercial court ;
  • justice of the peace ; or
  • police court hearing civil cases.

In voluntary appearance cases, the declaration made by the parties asking for the case to be heard will be signed by them at the foot of the record drawn up by the court.

This method of bringing an action is allowed regardless of the subject-matter and allows costs and time to be saved.

7. Who exactly do I apply to: to the reception office or the office of the clerk of the court or any other administration?

A person wishing to bring a court action may apply either to the reception office or the office of the clerk of the court.

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Where the action is commenced by a summons, the bailiff serves it and applies to the court registrar to enter it in the register of cases, presenting the original or possibly a certified copy of the summons (section 718 of the Judicial Code). A register of all cases is kept at the court registry. The entry in the register must be made no later than the day before the day on which the case is set down for hearing. The general register is a public document (section 719 of the Judicial Code). This means the defendant can check whether the case in which he is summoned to appear has been entered in it.

In voluntary appearance cases, the parties or their lawyers ask the registry for the case to be entered in the register.

The application inter partes is deposited with or sent by registered letter to the registrar of the court by the applicant or his lawyer in as many copies as there are parties (section 1034quinquies of the Judicial Code).

Unilateral applications are sent by the lawyer to the relevant court in two copies. They can also be deposited at the court registry (section1027 of the Judicial Code).

8. In which language can I make my application? Can I do it orally or does it have to be in writing? Can I send my application by fax or by e-mail?

  • The use of languages is governed by the Court Languages Act of 15 June 1935 (published in the Moniteur belge/Belgisch Staatsblad on 22 June 1935). This Act lays down rules governing the use of languages in the civil and commercial courts.
    Basically the language to be used depends on the geographic location of the court. Section 42 of the Act determines three linguistic regions: the French-language region, the Dutch-language region and the German-language region. There is also the Brussels metropolitan area, which is bilingual (French/Dutch) and consists of the following districts: Anderlecht, Auderghem, Berchem-Sainte-Agathe, Brussels, Etterbeek, Evere, Forest, Ganshoren, Ixelles, Jette-Saint-Pierre, Koekelberg, Molenbeek-Saint-Jean, Saint-Gilles, Saint-Josse-ten-Noode, Schaerbeek, Uccle, Watermael-Boitsfort, Woluwé-Saint-Lambert and Woluwé-Saint-Pierre.
    In certain conditions, a case can be remitted to a court in a different language region. In certain conditions also, the language of the case can change, generally at the beginning of the proceedings.
  • Formulation of the application: where the case begins with a summons, application inter partes or unilateral application, it must be made in writing and satisfy certain requirements as to form. As soon as a case has been entered in the register, the registrar opens a file - the case file. The case file is passed to the judge hearing the case and, if there is an appeal or a reference to the Court of Cassation, it is conveyed to the registry of the relevant court also.
  • At the moment, it is not possible to file an application by fax or e-mail.
    Measures implementing the Act of 20 October 2000 introducing telecommunication and electronic signature facilities in judicial and extrajudicial proceedings, published in the Moniteur belge/Belgische Staatsblad on 22 December 2000, have not yet been adopted.

9. Are there special forms for bringing actions, or, if not, how must I present my case? Are there elements that have to be included in the file?

  1. Legally there are no pre-printed application forms. But there are certain items of information that must be in the application, otherwise it will not be valid.
  2. If they are to be valid, a summons, an application inter partes and a unilateral application must meet the requirements of the Judicial Code. The items that must be covered mainly concern the identity and contact details of the parties, the subject-matter, an indication of the judge hearing the case and the date of the hearing.

A summons, for instance, under sections 43 and 702 of the Judicial Code, must at least contain:

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  • the signature of the bailiff serving it;
  • the applicant's name, forenames and permanent address ;
  • the defendant's name, forenames and permanent address or, if he does not have one, his residence ;
  • the subject-matter and a brief summary of the arguments ;
  • an indication of the judge hearing the case ;
  • an indication of the date, month, year and place of service; and
  • an indication of the place, date and time of the hearing.

An application inter partes must, under section1034ter of the Judicial Code, contain:

  • an indication of the date, month and year ;
  • the applicant's name, forename, occupation and permanent address and, if appropriate, his status and entry in the companies or trades register;
  • the name, forename, permanent address and, if appropriate, status of the person to be summoned;
  • the subject-matter and a brief summary of the arguments;
  • an indication of the judge hearing the case;
  • the signature of the applicant or his lawyer.

A unilateral application must contain the following (section 1026 of the Judicial Code):

  • an indication of the date, month and year ;
  • the applicant's name, forename, occupation and permanent address and, if appropriate, the name, forename, permanent address and status of his/her legal representatives;
  • the subject-matter and a brief summary of the arguments;
  • an indication of the judge who is to hear the case;
  • except where the laws provides otherwise, the signature of the party's lawyer.

In the event of voluntary appearance in courts of first instance (district court, employment court, commercial court, justice of the peace or police court hearing civil cases), the judge draws up a report at the foot of which the declaration by the parties asking for the case to be heard will be signed by them in accordance with section 706 of the Judicial Code.

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10. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the introduction of my application?

  1. Court charges will indeed be payable. The fees and costs of the proceedings include stamp and registry duties, the costs, emoluments and salaries relating to judicial acts and the cost of registering the judgment (section 1018 of the Judicial Code).
  2. When the case is first brought to court, the relevant duty is the register duty, advanced by the applicant. Registry charges include the register entry charge, the drafting charge and the charge for certified copies. Every final judgment, under section 1017 of the Judicial Code, orders one of the parties to bear the costs, usually the losing party. But the court can reserve costs. In that case, they will be calculated at the request of the more diligent party by the judge who gave the judgment.
  3. Lawyers' fees are not included in court fees and costs. They depend on the contract between the lawyer and the client. Each party pays his or her own counsel's fees.

11. Can I claim legal aid? ('legal aid' theme)

FOLLOW-UP

12. From which moment is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented?

  1. The case is actually referred to the court from the time when it is entered in the general register, even in voluntary appearance cases.
    Unilateral applications and applications in summary proceedings in urgent matters are entered in specific registers, and their appearance on the court list depends on these.
  2. No confirmation as such is sent to the litigant. But the parties can consult the general register to check whether their case has indeed been set down. Once the case is in the register, the court is under a duty to hear and determine it.

13. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)?

As a rule, information on the progress of the case can be given to the party by the lawyer, if one has been retained. Information can also be obtained from the registry of the relevant court. The summons also gives come information, including the date of the first hearing and an indication of the judge taking the case.

In particular, the information relating to the initial hearing is given at the very first stage. In the event of:

  • A summons, the bailiff informs the applicant of the date of the initial hearing, which is the first step in the proceedings;
  • An application inter partes or a voluntary appearance, the registrar informs the parties;
  • A unilateral application, there is no hearing. The applicant may be called to appear by the registrar if the court wished to ask questions.

At a second stage, the case is prepared for trial. Each party has the period of time allowed by the law (section 747(1) of the Judicial Code ) to deposit documents and submissions (written arguments and pleadings). If the time-limits are exceeded, there is a system of penalties under section 747(2) of the Judicial Code.

When the case is ready to go to trial, the parties ask for a hearing date. The timing for this will depend on the court's case-load and the time needed for the case. Given that there can be procedural in certain cases (expert witnesses, parties to be questioned, witnesses to be heard etc.), the precise duration of the proceeding cannot be predicted. Proceedings may have to be adjourned or even abandoned.

At the end of the hearing, the judge reserves judgment, which must generally be given within one month, under section 770 of the Judicial Code.

Further information

The provisions cited on this page can be consulted in updated form on the "Législation consolidée" page at Service Public Fédéral JUSTICE (de-fr-).

« Bringing a case to court - General information | Belgium - General information »

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Last update: 30-10-2009

 
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