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Last update: 23-05-2005
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Simplified and accelerated procedures - Belgium

 

Order for payment procedures

1. Existence of a procedure for a judicial order to pay

In Belgium there is a “summary order for payment procedure”. This simple procedure, described in Sections 1338 to 1344 of the Civil Code, serves to secure payment of relatively petty amounts.

1.1. Scope of procedure

a) What types of claim are eligible?

Only money claims are eligible.

b) Is there an upper limit regarding the value of the claim

Section 1338 of the Civil Code provides that only claims for payment of an established debt of a sum of money (not exceeding €1860) are eligible for this procedure.

c) Is the use of that procedure optional or obligatory?

The use of the “summary order for payment procedure” is purely voluntary.

d) Is the procedure available if the defendant lives in another Member State or in a third country?

No, it cannot. Article 1344 of the Civil Code stipulates that the summary order for payment procedure is only applicable if the debtor has its place of residence or abode in Belgium.

1.2. Competent court

This procedure can be used both for the justice of the peace and for the police court, provided the claim falls within their respective jurisdictions (for the competence of the justice of the peace and police court judge, see the information pack “Jurisdiction of the courts”).

1.3. Formal requirements

a) Is the use of a standardised form obligatory? (If yes, where can that form be obtained?)

There is no standard form for instigating the procedure. The law does set a number of conditions concerning the content of the notice to pay and on the written application bringing the claim before the judge.

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Before referring a written application to the judge, the debtor must send the debtor a notice to pay. This obligation is imposed by Section 1339 of the Civil Code. The notice may take the form either of a writ served on the debtor or of a registered letter with advice of receipt. Section 1339 also determines what content must be included in the notice, on pain of nullity. It is as follows:

  • reference to the articles of the “summary order for payment procedure” Section of the Civil Code;
  • notice to pay within fifteen days of service or of sending of the letter;
  • the required amount; and
  • the judge to whom the claim will be referred if the debtor does not pay.

Within fifteen days of the passing of the fifteen-day deadline set in the notice, the claim is sent to the judge in a written application in duplicate. Section 1340 of the Civil Code says what this application must contain:

  • the date, month and year;
  • applicant’s surname, first name, occupation and residence and, where applicable, the surnames, first names, places of residence and positions of their legal representatives;
  • the subject of the claim and an accurate statement of the required amount, specifying the elements of the debt claim and the grounds on which it rests;
  • designation of the judge who is to examine the case; and
  • signature of the party’s lawyer.

If the applicant considers it advisable, he may also state the reasons why he is opposed to granting a postponement of payment.

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The following are enclosed with the application:

  • photocopy of the document on which the claim is based;
  • either the writ or a copy of the registered letter, with advice of receipt attached, or the original letter enclosing evidence that the addressee refused the letter or did not collect it from the post office, and a statement that the debtor is registered at the address given in the population register.
b) Do I have to be represented by a lawyer?

One of the necessary elements of your written application is the signature of a lawyer. In addition, Section 1342 of the Judicial Code requires a copy of the judge’s order to be sent by ordinary mail to the applicant’s lawyer. These are the only statutory provisions requiring the involvement of a lawyer.

c) In how much detail do I have to describe the reason for the claim?

The application must be reasonably detailed. Section 1340(1.1) of the Civil Code in any case requires the application to state the subject of the claim and accurately to quote the required amount, specifying the elements of the claim and the grounds on which it is based.

d) Do I have to present written evidence of the claim at issue? If yes, which documents are admissible as proof?

Yes, you must. In accordance with Section 1338, the claim must be backed by a document originating from the debtor. However, this document need not be a recognition of the debt.

1.4. Rejection of application

Within fifteen days of submission of the application, the judge accepts or rejects the application, where an order is to be given in chambers. The judge may grant a stay of payment or accept the application in part (see Section 1342 of the Civil Code). The judge in any case has information about the various elements of the debt and may reject certain items. Thus he can take account of any payments which have taken place between the parties. He may reject the entire claim if the set conditions have not been met (see Civil Code Sections 1338 and 1344).

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When the judge approves all or part of the application, his order has the consequences of a default judgment.

The plaintiff must serve the judge’s order on the debtor. As the judge’s order has the consequences of a default judgment, if it approves all or part of the plaintiff’s application, such service must take place within one year, failing which the order is void (see Civil Code Section 806).

Section 1343(2) of the Civil Code requires the act of service of this order to contain the following, without which it is void:

a) a copy of the application;

b) statement of the deadline by which the debtor can file opposition;

c) indication of the judge before whom such opposition must be filed, and the forms in which it must be done;

d) also on pain of nullity, the act of service must warn the debtor that, if he does not pay compensation within the set term, he may be forced, by all legal means, to pay the required sums of money.

The order is not immediately enforceable (see Section 1399(2) of the Civil Code). Enforcement of the order is therefore suspended for the periods of opposition and higher appeal. The order may, however, serve as grounds for a pre-judgment attachment.

If the debtor files no opposition or appeal within the set term, the order becomes final.

1.5. Appeal

Appeal by the debtor

The plaintiff’s options are stated in Section 1343.4 of the Civil Code. The plaintiff cannot actually appeal against a rejection or part-acceptance of his claim. However, he can resubmit the claim by ordinary procedure (i.e. not by summary procedure). If his claim was partly accepted, and the plaintiff still wants to resubmit the claim by ordinary means, the plaintiff need not serve the order on the debtor yet.

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Opposition or higher appeal by the debtor

The debtor may challenge the order in two ways: either by filing a higher appeal against it, or by filing opposition (the judge’s order in any case has the consequences of a default judgment, it approves the plaintiff’s application in whole or in part: see Civil Code Section 1343(1). In both cases, the period for submitting the petition for legal redress is one month, counted from service of the judgment (see Sections 1048 and 1051 of the Civil Code). These periods are extended where one of the parties has no residence, abode or elected domicile in Belgium.

The common-law rules of opposition and higher appeal are followed in this case, with one exception. This is provided in Section 1343(3) second paragraph of the Civil Code: contrary to Section 1047 (which requires a writ), opposition may be filed by application to be submitted to the court registry in as many copies are there are parties and lawyers involved. The registrar then notifies the debtor and its lawyer by court letter.

On pain of nullity, the petition must contain the following:

1. the date, month and year;

2. opponent’s surname, first name, occupation and residence;

3. surnames, first names and places of residence of the creditors and the names of their lawyers;

4. the contested order;

5. the legal remedies sought by the opposing party.

The parties are then summoned by the registrar to appear at the session appointed by the judge.

1.6. Statement of opposition

Belgian law makes no express provision for a defence statement against the claim.

The debtor may submit information to the justice of the peace, though this does not alter the nature of the default judgment.

1.7. Effect of statement of opposition

As stated, no defence statement is possible. Whether the debtor conducts a defence or not, the summary judicial procedure goes ahead normally.

1.8. Effect of lack of statement of opposition

a) What needs to be done in order to obtain an enforceable decision?
b) Is this decision final or is there still a possibility for the defendant to appeal against that decision?

See answer to 1.7.

Further information

The law on the summary judicial procedure for ordering payment:

website of the Federal Government Department of Justice fr:

  • click on “consolidated legislation” under the heading “legal sources”
  • select “Code Judiciaire” under the heading “legal type”
  • type “664” under the heading “words”
  • click on “Search”, then “List”
  • click “Detail”.

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Last update: 23-05-2005

 
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