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Enforcement of judgements - Belgium

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NB: all the legal provisions referred to in this document can be found on Federale Overheidsdienst Justitie Deutsch - français - Nederlands under the heading "geconsolideerde wetgeving"



 

TABLE OF CONTENTS

1. What does enforcement mean in civil and commercial matters? 1.
2. What are the conditions under which an enforceable title or decision may be issued? 2.
2.1. The procedure 2.1.
2.2. The substantive conditions 2.2.
3. Object and nature of enforcement measures? 3.
3.1. What types of assets can be subject to enforcement? 3.1.
3.2. What are the effects of enforcement measures? 3.2.
3.3. What is the validity of such measures? 3.3.
4. Is there a possibility of appeal against the decision granting such a measure? 4.

 

1. What does enforcement mean in civil and commercial matters?

If a debtor fails to comply voluntarily with a legal judgment, the claimant can enforce compliance through the courts; this is known as compulsory enforcement. It requires an enforceable title (Article 1386 of the Judicial Code), because it involves an intrusion into the debtor’s personal legal sphere. Such a title will usually be a judgment or a notarial deed. Out of respect for the debtor’s privacy the title may not be enforced at certain times (Article 1387 Jud. Code.). The title is executed by a bailiff.

Compulsory enforcement is usually used to recover money, but it can be applied to enforce performance of an act.

Another important aspect is the penalty payment (Article 1385a Jud. Code.). This is a means of exerting pressure on the person convicted in order to encourage compliance with a legal judgment. A penalty payment cannot, however, be imposed in certain cases: when the person has been sentenced to pay a sum of money or to comply with an employment contract and when it would be incompatible with human dignity. A penalty payment is enforced on the basis of the title providing for it and no further title is therefore required.

In the case of a person sentenced to pay a sum of money, the claim is enforced against the debtor’s assets and is referred to as attachment. A distinction is made between the type of goods attached (movable or immovable)1 and the nature of the attachment (precautionary attachment and attachment in execution of a judgment). Precautionary attachment is used in emergency cases to place goods under the protection of the court: the situation is frozen in order to safeguard any subsequent enforcement. The attachee no longer has control over the goods and cannot sell them or give them away. When a debtor’s goods are attached in execution of a judgment they are sold and the proceeds given to the claimant. The claimant has no right to the attached goods themselves, only to the proceeds of their sale.

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In addition to normal precautionary attachment and attachment in execution of movable and immovable property there are also special rules for attachment of ships (Articles 1467 to 1480 and Articles 1545 to 1559 Jud. Code.), attachment in the event of forgery (Articles 1481 to 1488), distraint (Article 1461 Jud. Code.), replevin (Articles 1462 to 1466 Jud. Code.) and attachment of unharvested fruit and crops (Articles 1529 to 1538 Jud. Code.). In the rest of this document we shall consider only normal attachment.

2. What are the conditions under which an enforceable title or decision may be issued?

2.1. The procedure
2.1.1. Precautionary attachment

For precautionary attachment the permission of the judge of attachments is required (Article 1413 Jud. Code.). Authorisation must be sought by an ex parte application (Article 1417 Jud. Code.). The same application may not be used for attachment of movable and immovable property. For attachment of immovable property a separate request is in any case always required.

The judge of attachments will reach a decision no later than eight days after deposition of the application (Article 1418 Jud. Code.). The judge may decide to refuse permission or to grant it in full or in part to the claimant. The judge of attachment’s decision must be served on the debtor. The decision is issued to a bailiff who then takes the necessary steps to serve it.

There is one important exception to this rule, in which the permission of the judge of attachments is not required: every judgment constitutes authorisation to impose precautionary attachment in respect of the sentences handed down (Article 1414 Jud. Code.). Here, too, it must be a matter of urgency. The judgment simply has to be handed over to a bailiff who will take the necessary steps to attach the goods.

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Precautionary attachment may be converted into attachment in execution (Articles 1489 to 1493 Jud. Code.).

2.1.2. Attachment in execution of a judgment

A. General

This sort of attachment may only be carried out under an enforceable title (Article 1494 Jud. Code.). Judgments2 and deeds3 can only be enforced on production of the certified copy4 or the original,5 accompanied by the enacting formula laid down by Royal Decree.6

The court’s judgment is served on the defendant in advance (Article 1495 Jud. Code.). If the enforceable title is a judgment, prior service is compulsory in any case, to notify the debtor. If the enforceable title is a deed, however, it is not necessary, because the debtor will already be aware of the title. The periods allowed for review or appeal start when the judgment is served. The appeal periods have the effect of suspending attachment in execution of a judgment (but not precautionary attachment) in cases where a party has been sentenced to pay a sum of money. Provisional enforcement (judgment that is provisionally enforceable) constitutes an exception to the suspensive effect of ordinary review or appeal procedures.

The second stage in the claimant’s efforts to force the sale of the property is the payment order (Article 1499 Jud. Code.). This is the first act of enforcement and the last warning for the debtor, who can still avoid attachment at this stage. There is a waiting period after the payment order is issued of one day for attachment of movable property (Article 1499 Jud. Code.) and 15 days for immovable property (Article 1566 Jud. Code.). The order must be served on the debtor and constitutes a notice of default and demand for payment. The compulsory enforcement can only serve to recover the amounts stated in the payment order.

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At the end of the waiting period the goods can be attached. This is done by a bailiff’s writ. Enforcement is therefore through the intermediary of a competent official. This official is regarded as the agent of the claimant; his function is laid down by law and he operates under judicial supervision.7 He has a contractual liability towards the claimant and a non-contractual liability towards third parties (under the law and on the grounds of the general duty of care).

Within 24 hours of the deed, the bailiff will send a notice to the clerk of the court of first instance in the place where the attachment took place (Article 1390 Jud. Code.). The notice is compulsory for both movable and immovable goods. It is not possible to carry out any attachment in execution of a judgment or procedure for dividing the proceeds without first consulting the notices of attachment (Article 1391 Jud. Code.). This rule was introduced in order to prevent unnecessary attachments and to strengthen the collective dimension of the attachment.

B. Attachment in execution of a judgment: movable goods

This requires a payment order, which the debtor has the right to oppose. Attachment is carried out by bailiff’s writ and in the first instance is a precautionary measure: the goods are not moved and there is no change in their ownership and use. It is also possible to attach goods at a location other than the debtor’s home and on the premises of a third party.

In the case of movable property attachment is not limited to a single procedure only, but there is virtually no point in placing a second attachment on the same goods, given the costs involved. When it comes to the proportional division of the proceeds of the sale of the debtor’s goods, claimants other than the one who carried out the attachment will be involved (Article 1627 ff Jud. Code.).

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An official report of the attachment will be drawn up. The goods seized will be sold at the earliest one month after service or notification of the copy of the official report of attachment. This delay is intended to give the debtor a final chance to prevent the sale. The sale must be advertised to the public by means of posters and notices in the newspapers. It is held in a auction room or on a public market, unless a request is made for another more suitable place. It is conducted by a bailiff, who writes an official report and collects the proceeds of the sale. Within 15 days the bailiff then divides the proceeds proportionately (Article 1627 ff. Jud. Code.). This procedure is usually settled amicably, failing which the matter is referred to the judge of attachments.

C. Attachment in execution of a judgment: immovable goods (Article 1560 ff  Jud. Code.)

Enforcement begins with service of the payment order.

The attachment is then carried out at the earliest 15 days and at the latest six months later, failing which the order ceases to be legally valid. The writ of attachment must then be transcribed into the records of the mortgage registry8 within 15 days and served within six months. The act of transcribing the writ makes the property unavailable and is valid for a maximum of six months. Failure to transcribe the writ makes the attachment invalid. In the case of immovable property, unlike movable property, the principle of a single attachment only does apply (property that has been attached once cannot be attached a second time).

The final step is an application to the judge of attachments to appoint a notary to handle the sale of the goods and the marshalling of creditors. The debtor may lodge a statement of opposition against the actions of the appointed notary with the judge of attachments. The other rules on the sale of the goods are clearly laid down by law (see Articles 1582 ff. Jud. Code.). The sale is normally public, but at the judge’s initiative or at the request of the claimant making the attachment a private sale may be possible. The proceeds of the sale are then divided between the different creditors according to the agreed order of priority (marshalling) (see Articles 1639 to 1654 Jud. Code.). Disputes about the marshalling of creditors are referred to the judge of attachments.

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2.1.3. Garnishment

This is the attachment of claims that the debtor has on a third party (e.g. attachment of earnings from his employer). This third party is thus the secondary debtor of the claimant making the attachment. Garnishment (beslag onder derden) is not the same as attaching goods belonging to the debtor but located on the premises of a third party (beslag bij derden).

The claim that is the grounds for the attachment is the creditor’s claim on the attached debtor. The claim that is attached is the claim that the attachee has on a third party/secondary debtor.

Detailed rules on garnishment may be found in Articles 1445 to 1640 Jud. Code. (precautionary attachment) and Articles 1539 to 1544 Jud. Code. for attachment in execution of a judgment.

2.1.4. Costs

In addition to the legal costs, there will be bailiff’s costs to take into account in cases of attachment. The fees for the bailiff’s official services are laid down in the Royal Decree of 30 November 1976 setting the rates for acts of bailiffs in civil and commercial cases and the rate for certain surcharges (see Federale Overheidsdienst Justitie Deutsch - français - Nederlands).

2.2. The substantive conditions
A. Precautionary attachment

Any claimant with a claim displaying certain characteristics may exercise precautionary attachment, regardless of the value of the goods attached and the amount of the claim (see Article 1413 Jud. Code.).

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The first pre-condition for this type of attachment is urgency: the debtor's solvency must be in danger, with the result that the subsequent sale of the assets is jeopardised. The decision as to whether this condition is met is taken by the court on the basis of objective criteria. There must be urgency, not just at the time the attachment is made, but also when an assessment is made of the need to continue the attachment. There are a few exceptions to this condition: attachment in the case of forgery, attachment for debts on bills of exchange and execution of a foreign judgment.

A second condition for precautionary attachment is that the claimant must have a claim. If a claim is required it must satisfy certain conditions (Article 1415 Jud. Code.): it must be definitive (not conditional), payable (applies also to guarantees for future claims) and fixed (amount has been determined or can be determined). The nature and amount of the claim, on the other hand, are immaterial. The judge of attachments decides whether these conditions have been met, but the court subsequently hearing the case will not be bound by this decision.

Thirdly, the claimant seeking precautionary attachment must be competent to do so. This is an act of control (not use) that can, if necessary, be performed by a legal representative.

The permission of the judge of attachments is required unless the claimant has already obtained a judgment (see above). However, this is not required for precautionary garnishment or distraint or for claimants who have already obtained a judgment (Article 1414 Jud. Code.: any judgment constitutes an enforceable title). Notarial deeds also provide an enforceable title.

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B. Attachment in execution of a judgment

Here, too, an enforceable title is required (Article 1494 Jud. Code.). This may be a judicial decision, an authentic instrument, a writ of execution from the tax authorities, a foreign judgment with exequatur, etc.

The claim must be set out in a deed meeting certain criteria. As with precautionary attachment, the claim must be certain, fixed and payable. The second paragraph of Article 1494 Jud. Code. states that attachment made in order to obtain payment of income due in instalments will also apply to future instalments, as these fall due.

The title must also be current. The judge of attachments will not consider the title to be current if the attachment creditor is no longer a claimant or if all or part of the claim has ceased to be active (because it is time-barred, has been paid or otherwise settled).

3. Object and nature of enforcement measures?

3.1. What types of assets can be subject to enforcement?

A. General

Only movable and immovable goods owned by the debtor may be attached. Goods belonging to a third party may not be attached, although it is irrelevant in whose possession the debtor’s goods happen to be at the time. It is therefore possible to attach goods on the premises of a third party, subject to the authorisation of the court (Article 1503 Jud. Code.).

The claimant may normally recover the debt only from the debtor’s current assets. Only if the debtor dishonestly renders himself insolvent is it also possible to attach his former assets. Attachment of future assets is also normally ruled out, with the exception of future claims.

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The fruits of the goods attached normally remain with the attachee in the case of precautionary attachment. In the case of attachment in execution of a judgment, however, the fruits are also subject to attachment and therefore go to the attachment creditor.

It is possible to attach an undivided estate, but the forced sale of the property is then suspended until the estate has been divided (see for example Article 1561 Jud. Code.). Special rules apply to spouses.

B. Goods eligible for attachment

The goods must be eligible for attachment. Certain goods cannot be attached. Their exemption from attachment must be because of a statutory provision, or the nature of the goods or the fact that they have a strict personal association with the debtor. It is not possible, for example, to exempt goods from attachment on the basis of the purpose. The following goods are therefore not eligible for attachment:

  1. The goods listed in Article 1408 Ger. W. This restriction was introduced in order to guarantee reasonable living conditions for the debtor and his family.
  2. Goods that have no sale value and are therefore of no use to the claimant.
  3. Goods that are inalienable because they are so closely associated with the debtor personally.
  4. Goods excluded from attachment by specific legislation (e.g. the income and wages of minors, unpublished books and music, income earned by prisoners from prison jobs).
  5. Wages (attachment of earnings) and similar claims are usually eligible for attachment to a limited extent only (see Articles 1409, 1409a and. 1410(1) Jud. Code.). This includes, for example, maintenance payments awarded by the court to the non-culpable spouse. Certain payments, such as the minimum subsistence income, however, are entirely excluded from attachment (see Article 1410(2) Jud. Code.). However, the restrictions on eligibility for attachment do not apply to claimants seeking to recover maintenance debt, whose claims take precedence (see Article 1412 Jud. Code).

In the past the government enjoyed immunity from enforcement actions, with the result that it was not possible to attach government property. This has now been modified slightly by Article 1412a Jud. Code.

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There are special rules governing attachment of ships and aircraft (for precautionary attachment see Articles 1467 to 1480 Jud. Code. and for attachment in execution of a judgment see Articles 1545 to 1559 Jud. Code.).

NB: New legislation on bank accounts was recently adopted in Belgium: De wet betreffende de onvatbaarheid voor beslag en de onoverdraagbaarheid van de bedragen waarvan sprake is in de artikelen 1409, 1409 bis en 1410 van het Gerechtelijk Wetboek wanneer die bedragen op een zichtrekening gecrediteerd zijn (Act on the ineligibility for attachment and non-transferability of the payments referred to in Articles 1409, 1409a and 1410 of the Judicial Code when these payments are credited to a current account (published in the Belgisch Staatsblad (Official Gazette), 2 July 2004). This has not yet come into force, a Royal Decree being required for its implementation (see Article 5 of the Act). The legislation extends the restrictions and exemptions provided for in the relevant articles of the Judicial Code to include amounts credited to current accounts.

C. Kantonnement (partial settlement)

When an item is attached, the attachment usually applies to the item as a whole, even if its value exceeds the amount of the claim. This is seriously disadvantageous to the debtor, because the item becomes completely unavailable to him. In order to alleviate the impact of this, the Belgian legislator has allowed for the possibility of kantonnement: the debtor deposits a certain sum and is allowed to regain the use of his property (see Articles 1403 to 1407 Jud. Code.).

In both precautionary attachment and attachment in execution of a judgment, a partial payment may be made in respect of either the claim that was the cause of the attachment or the object of the attachment itself. In the former case the partial payment replaces the attached property, which then reverts to the debtor. In the latter, the attached item is simply moved.

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3.2. What are the effects of enforcement measures?

A. Attachment

From the moment the goods are attached the debtor loses the right to dispose of them. The attachment does not, however, give the attachment creditor a preferential claim. Disqualification means that the debtor is not allowed to sell, alienate or encumber them. However, the goods do remain in the debtor’s possession. In practical terms there is no change in the situation; the legal situation is, however, different.

The penalty for contravening this disqualification is that the actions taken by the attachee are not binding on the attachment creditor.

This disqualification is, however, only relative, in the sense that it applies only to the advantage of the attachment creditor. Other claimants still have to put up with fluctuations in the debtor’s assets. However, it is a simple matter for them to associate themselves with the attachment that has already been granted.

Disqualification is the first stage in the process of selling off the assets. The goods come under the control of the court. Attachment in execution of a judgment thus also has a precautionary function in the first instance.

B. Garnishment

This form of attachment removes control over the entire claim attached, regardless of the value of the claim which formed the grounds for the attachment. The garnishee can make a partial payment (kantonneren). Actions that undermine the claim are not enforceable against the attachment creditor. Once garnishment has been served there can be no further settlement between the attachee and the garnishee.

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3.3. What is the validity of such measures?

A. Precautionary attachment

Precautionary attachment is valid for up to three years. In the case of attachment of movable property and garnishment the three-year period runs from the date of the order or writ (Articles 1425 and 1458 Jud. Code.). In the case of attachment of immovable property the date of the transcription into the records of the mortgage registry marks the start of the three-year period (Article 1436 Jud. Code.).

The period may be extended if there are well-founded reasons for doing so (Articles 1426, 1459 and 1437 Jud. Code.).

B. Attachment in execution of a judgment

In the case of attachment in execution of a judgment only the order that precedes attachment is subject to a maximum period of validity. For this type of attachment the period is ten years in the case of movable property (the normal time limit, because no special provisions apply) and six months in the case of immovable property (Article 1567 Jud. Code.). For attachment of ships the period is one year (Article. 1549 Jud. Code.).

4. Is there a possibility of appeal against the decision granting such a measure?

A. Precautionary attachment

If the judge of attachments refuses permission for precautionary attachment, the applicant (i.e. the claimant) may lodge an appeal against the decision with the Court of Appeal. This is an ex parte procedure. If the attachment is allowed on appeal the debtor has the right to institute third-party proceedings against the decision (see Article 1419 Jud. Code.).

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If the judge of attachments authorises precautionary attachment, the debtor or any other interested party may institute third-party proceedings against the decision. The deadline for doing so is one month and the proceedings are instituted at the court that issued the decision. The court will then rule in an adversary procedure.9 Third-party proceedings do not normally have suspensive effect (see Articles 1419 and 1033 Jud. Code.).

Where precautionary attachment can be imposed without judicial authorisation the debtor can appeal against it by applying to the judge of attachment to lift the attachment (Article 1420 Jud. Code.). This is the procedure for opposing attachment and is dealt with as in interlocutory proceedings, if necessary in conjunction with the imposition of a penalty payment. The grounds for the claim may be the lack of urgency (Cass. 14 September 1984, Arr. Cass. 1984-85, 87).

If there is a change in circumstances, either the attachee (by summoning all parties to appear before the judge of attachments) or the attachment creditor (or intermediary) (by means of an application) may apply to the judge of attachments to amend or withdraw the attachment.

B. Attachment in implementation of a judgment

The debtor may lodge a statement of opposition to the payment order, thus contesting its legal validity. There is no statutory time limit for this, and opposition does not have suspensive effect. Grounds for opposition include procedural defects and a request for a period of grace (if the enforceable title is a notarial deed).

Debtors may lodge a statement of opposition with the judge of attachments against the sale of their goods, but this opposition does not have suspensive effect either.

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Claimants other than the attachment creditor may oppose the sale price, but not the sale itself.

A third party claiming to be the owner of the goods attached may also lodge a statement of opposition with the judge of attachments (Article 1514 Jud. Code.). This does have suspensive effect.

1 Attachment of movable and immovable goods respectively.

2 Issued by a court.

3 As a rule issued by a notary.

4 The first copy. The party wishing to have the judgment enforced receives only a single certified copy. This is issued by the registry on payment of a fee.

5 The original of the judgment or deed. Applies to very urgent cases only.

6 Royal Decree of 9 August 1993, Belgisch Staatsblad (Official Gazette), 9 August 1993 (www.just.fgov.be Deutsch - français - Nederlands):

"We Albert II, King of the Belgians,

To all those present and to come, be it known:

We order and command that all bailiffs so requested shall execute this judgment, sentence, decision, order or deed;

That Our Procurators-General and Public Prosecutors at the courts of first instance shall enforce it and that all commanders and officers of the public authorities shall lend their assistance if required by law to do so;

In witness whereof this judgment, sentence, decision, order or deed has been signed and sealed with the seal of the court or notary. "

7 For actions relating to the execution of the judgment or deed the bailiff is answerable to the judge of attachments. In matters of ethics he is answerable to the public prosecutions service and the regional branch of the chamber of bailiffs.

8 The registry in the place where the goods are situated (Article 1565 Jud. Code.). The registry provides information about the immovable property, e.g. property rights, mortgages taken out against the property.

9 i.e. all the parties appear in the case.

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Last update: 06-06-2006

 
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