With the introduction of the new Book XX in the Economic Law Code (27.09.2018), discharge is provided for in the context of a “fresh start”; the second chance policy. Discharge can in principle be granted as soon as a request is filed. The court does not have the authority to examine ex officio whether discharge would be justified or not. Without a petition, the court does not rule on discharge. The court cannot refuse dischargeo n its own initiative.
Any interested party, creditors, as well as the trustee and the public prosecutor, can object to discharge. Discharge can only be refused in whole or in part if the bankrupt:
If the interested party manages to prove this, the court will reject the discharge request.
The law provides that you must apply for this yourself by means of a petition. It is advisable to seek the assistance of a lawyer.
If you apply for your own bankruptcy, you must attach the petition for discharge to the declaration of your bankruptcy at the beginning of the procedure. Regsol provides for this. But it can even be requested after the closure of the bankruptcy. So don’t panic if the bankruptcy has been closed and there is no mention in the judgment of closure of the bankruptcy of your discharge that you did not receive because you forgot to ask for it. And you will notice this soon enough because the bailiffs will come back after the announcement of the judgment of closure of the bankruptcy.
The Enterprise Court in Ghent ruled a contrario that discharge after bankruptcy must, however, be requested no later than three months after the closure of the bankruptcy. (22.08.2022)
The Ghent Court of Appeal annulled this decision. (21.10.2021)
… a bankrupt whose bankruptcy was declared after May 1, 2018, and whose bankruptcy has since been closed without having submitted a request for discharge of the residual debts during the course of the bankruptcy and over whose discharge no judgment has been made, can perfectly validly still submit a request for discharge to the Enterprise Court, without a time limit.
There is no legal provision on the basis of which the creditors of the appellant in the proceedings must be involved, so the first instance judge incorrectly declared the claim inadmissible on this ground.
The interests of the creditors are not disproportionately infringed in this case. Article XX.173, § 3 of the Economic Law Code states that, from the announcement of the bankruptcy judgment, any interested party (including creditors) can demand, by means of a petition of which the clerk gives notice to the bankrupt, that discharge be granted only in part or entirely refused….
The creditors therefore already had the possibility of “anticipatory opposition,” which no creditor in this case used.
On June 23, 2022, the Constitutional Court ruled that the discharge of residual debts is a subjective right of the bankrupt (Constitutional Court June 23, 2022, case number 7619, judgment no. 86/2022, consideration B.2.2.). Appellant, who claims to hold a subjective right, therefore has the required capacity to bring the claim. The original claim is therefore admissible.
As a result of the devolutive effect of the appeal, this court must also rule on the discharge of residual debts. Neither the receivership nor the Public Prosecutor’s Office bring any manifest gross errors on the part of the appellant, which would have contributed to the bankruptcy.
The entire discharge of the residual debt can be granted.
A bankrupt whose bankruptcy was declared after May 1, 2018, and whose bankruptcy was closed without having submitted a request for discharge, can still validly submit a request for discharge to the enterprise court without a time limit. The interests of the creditors are not thereby disproportionately violated. They had the possibility of “anticipatory opposition” and also of bringing third-party opposition.
The Constitutional Court is thus in favor of a fresh start for natural persons who are bankrupt without a time limit. Even after the closure of the bankruptcy, this right must be retained for those who have not previously had the opportunity to rely on it. The Court of Appeal of Ghent confirmed this view.
Discharge is generally the rule, unless there is a clearly gross error that led to the bankruptcy and occurred before the bankruptcy was declared.
Your cooperation during bankruptcy, as well as the amount of assets and liabilities, are irrelevant to the decision to forgive your debts.
However, because the trustee writes the report on discharge, it is not recommended to not work constructively with the trustee and possibly make payments to the trustee, even though the law does not require you to do so. This is the case, for example, if you are a debtor of a significant current account debit in the company for which you also filed for bankruptcy. Usually, the same trustee is appointed. One has a claim against you and the same trustee must inform the other that they no longer have any means because they are in a state of bankruptcy.
The discharge not only has beneficial effects for the bankrupt himself, but also for his spouse or legally cohabiting partner, who has personally committed to the debts that the bankrupt has incurred during the duration of the marriage or legal cohabitation (art. XX.174, first paragraph of the Belgian Insolvency Act).
The effects of the discharge for the (former) spouse and the (former) legally cohabiting partner: the (former) partner is worse off than under the regime of dischargeability; the discharge regarding the bankrupt may apply to all debts; the consequences for the (former) partner only concern professionally related residual debts.
Article XX.174, first paragraph of the Belgian Insolvency Act:
The spouse, former spouse, legally cohabiting partner or former legally cohabiting partner of the bankrupt who is personally liable for the debt that the aforementioned person incurred during the duration of the marriage or the duration of the legal cohabitation, is released from that obligation as a result of the discharge.
However, the discharge of the bankrupt has no effect on the personal or joint debts of the spouse or legally cohabiting partner, if they result from an agreement that he/she entered into, whether those debts were incurred alone or jointly with the bankrupt, and which are unrelated to the professional activity of the bankrupt (art. XX.174, third paragraph of the Belgian Insolvency Act).
What are professional debts?
EXPLANATORY MEMORANDUM: When the debt is related to both non-economic and economic activities (e.g. mixed use of the purchased property), these debts are considered as a whole for the purposes of this article as not being unrelated to the economic activity of the debtor. Otherwise, the objective of this rule (Article XX.56 of the draft with regard to judicial reorganization), namely the continuity of the economic activity, is not achieved.
Further nuance (Report on first reading): it is appropriate to clarify that only debts related to a property that is predominantly used for professional economic activities can be the subject of discharge.
However, a judgment of the Court of Appeal of Mons dated 27.06.2022 rejects that view and even declares that the smallest professional residual debt is sufficient to grant the discharge.
Mons 27/06/2022, DAOR 2022/4, 73:
The professional use of the property was certainly not significant. However, the limitation to the release of the bankrupt’s close relatives laid down by the third paragraph of XX.174 of the Insolvency Act concerns only debts that are unrelated to the bankrupt’s personal activity. A mixed use of the property acquired by means of credit, even if it is insignificant, is sufficient to exclude it from this provision since the debt cannot be considered as being unrelated to the bankrupt’s activity.
In view of the wording of this provision, it cannot be required that the debt be predominantly or significantly related to the bankrupt’s economic activity: it is sufficient that it is not unrelated to it.
The reference to the preparatory works where a property is mainly used for professional economic activities is not relevant, as this is ultimately not included in the legal text itself.
There are already numerous examples in case law of such gross errors that have contributed to the bankruptcy. These are errors that are considered without any discussion as gross errors, an “unforgivable recklessness or carelessness” that is equivalent to fraud or intentional misconduct.
The error does not necessarily have to be the main cause. It is sufficient that the error has contributed to the bankruptcy.
If the court finds that the opposition is well-founded, it will either refuse the discharge in whole or in part. Partial refusal probably means that only a portion of the debts will be discharged for all creditors.
Antwerpen 02/06/2022, TIBR 2/2022, 194:
The far too long maintenance of a lost business at the expense of the creditors while it was possible to temper the increase of debts by timely declaration of suspension of payments constitutes a manifestly gross error within the meaning of Art. XX.173 WER.
Orb. Gent, afd. Brugge 04/04/2022, TIBR 2/2022, RS-204 :
Manifestly gross error = the repeated and systematic gambling of the financial means of the V; the fact that one speaks of gambling addiction and underlying medical problems does not negate the manifestly gross error.
Orb. Gent, afd. Kortrijk 30/06/2020, TIBR 2/2021, RS-105 :
Manifestly gross error = in the context of this business, he gave the young people free drinks, got drunk with them and then indulged in his lusts with them; the commercial enterprise was used to come into contact with young people who were offered free drinks, causing the enterprise to miss out on income.
Manifestly gross error = systematic non-payment of public debts; previous bankruptcies; previous criminal convictions;
While these facts may not be considered manifestly gross errors individually, taken together they are considered a flagrant error that a reasonably careful and prudent entrepreneur would not have committed and that are contrary to the essential rules of business life.
Antwerp, division Antwerp, 05.04.2022
“The Court must ascertain that NV EUROPABANK does not fulfill its burden of proof. The elements cited by it are – unfortunately – inherent to almost every bankruptcy and are (generally) the result of insolvency, lack of liquidity, and receiver’s opportunistic choices: Indeed, there was a solvency problem within BV BIAB at the end of 2019. It is not made plausible that the bankruptcy conditions were fulfilled at that time. This cannot be inferred from a negative net worth. NV EUROPABANK does not dispute the content of the special report in the context of the alarm bell procedure. Nor does it argue that this report would not be sufficient; It is plausible that a (too) rapid growth of the company can lead to liquidity problems; (…)
A manifestly gross error cannot be inferred from the amount of a debt. The fact that the bankrupt recorded certain purchases of the company under a current account debt account is not contradicted by NV EUROPABANK. This fact does constitute an error on the part of the bankrupt. The court does not have elements to qualify such an error as “manifestly gross.”
Court of Appeal of Antwerp, 02.06.2022
See our news flash with commentary and the full judgment.
Court of Appeal of Antwerp, 15.12.2022
By judgment of March 30, 2017, the Commercial Court of Antwerp, Antwerp division, declared the receiver’s claim for postponement of the date of suspension of payment unfounded.
In the judgment contested here of February 22, 2022, of the Antwerp Business Court, Antwerp division, the transactions of this bankruptcy were closed due to liquidation, without declaring K.M. dischargeable.
Both the supervisory judge and the Public Prosecutor’s Office had requested that discharge not be granted. Summarily, they considered that the bankrupt officially resided in Lille, while she was actually staying in Brasschaat (which was not retained by the first judge), that she operated an inn in the form of a company, while she had previously operated it privately, that the suspension of payment was reported late, that incomplete accounting was kept, and that she had not made the slightest effort to contribute to the settlement of the bankruptcy.
By petition of March 22, 2022, K.M. filed an appeal, seeking to set aside the judgment and grant her discharge.
Article 80, paragraph 2 of the Bankruptcy Act provides: “(…) Unless there are weighty circumstances, with specific reasons, the court grants discharge to the unfortunate bankrupt who acts in good faith.”
In the judgment contested here, it was ruled that K.M. could not be declared dischargeable due to weighty circumstances, which were deemed incompatible with good faith.
According to the first judge, these were the – apparently – non-transfer of a business to a third party (even if it was an affiliated company), making the business unavailable to creditors, lack of transparency about the nature and content of this transaction, and the use of a commercial lease agreement in the name of a third party as weighty circumstances that were incompatible with good faith within the meaning of Article 80 of the Bankruptcy Act. According to the first judge, this wrongfully deprived the creditors’ collateral and the company’s own business assets were of no value at any time.
The court rules otherwise.
Considering the foregoing, the appeal is granted and the favor of discharge is granted.
Second chance policy and youthful age Court of Appeal Antwerp 03.03.2022
In accordance with Article XX.173 § 1 WER, the bankrupt, if he is a natural person, shall be released from the residual debts in respect of the creditors, without prejudice to the security interests provided by the debtor or third parties.
In accordance with § 2 of the aforementioned provision, the discharge shall only be granted by the court at the request of the bankrupt, which he must attach to his declaration of bankruptcy or file in the register no later than three months after the publication of the bankruptcy judgment, even if the bankruptcy is closed before the expiry of that period. The petition shall be brought to the attention of the receiver by the clerk. The receiver shall file a report in the register no later than one month after the circumstances that may lead to the finding of manifestly gross errors referred to in § 3.
In accordance with § 3, any interested party, including the receiver and the public prosecutor, may request, by petition of which notice is given to the bankrupt by the clerk, from the date of publication of the bankruptcy judgment, that the discharge be granted only in part or be fully refused by motivated decision, if the bankrupt has committed manifestly gross errors that have contributed to the bankruptcy.
The receiver, as a primary measure, requests the confirmation of the disputed judgment and persists in the lateness of the petition for discharge.
In the contested judgment of December 22, 2020, the commercial court ruled, in addition, that even if a timely petition for discharge had been filed, discharge would have been denied to Mr. L., after the following findings:
Negligence in paying social security contributions from the third quarter of 2015 to the fourth quarter of 2018, A strong suspicion that Mr. L. allowed matters to drag on with an increasing debt burden, making bankruptcy unavoidable, Not keeping the books according to the rules of the art, Strong suspicions that not all income was effectively booked and therefore withheld from creditors. The court ruled that this conduct constitutes manifestly serious errors that have contributed to the bankruptcy.
Given the second chance policy envisaged by the legislature, given the youthful age of Mr. L., given the fact that, without prejudice to the manifestly gross errors that have contributed to the bankruptcy, the bankruptcy was also caused to a considerable extent by external factors, and given finally the (very minimal) realized asset, the court grants partial discharge to Mr. Lothar L..
Since the objection to the discharge was brought by the public prosecutor in the general interest, the discharge is not refused to certain creditors, as requested in the alternative by the appellant, but the discharge is proportionally granted to the extent of 60% of the total residual debts.
Discharge is refused to the extent of 40% of each of the residual debts, and Mr. L. remains liable.
It is not for the court to allow repayment terms in the context of the partial refusal of discharge.
Decision The court decides by judgment on adversarial proceedings.
The proceedings were conducted in accordance with the law of 15 June 1935 on the use of language in legal proceedings.
The court declares the appeal of the appellant admissible and partially well-founded.
The court reformulates the contested judgment of the commercial court Antwerp, Antwerp department, of December 22, 2020 (0/18/00908) as follows:
The court declares that the request for discharge was filed in due time by Mr. L..
The court declares that partial discharge is granted to Mr. Lothar L., namely to the extent of 60% of the residual debts.
The court declares that Mr. L. is denied discharge to the extent of 40% of each of the remaining debts.
Criminal conviction and impact on business activities Court of Appeal Antwerp, November 4, 2021
The reporting judge advised against granting the discharge.
The first instance court decided to deny discharge to Ms. B., mainly due to a criminal conviction for cocaine dealing and money laundering.
Without diminishing the seriousness of the criminal conviction for drug offenses, the court notes that Ms. B. has already been punished for these offenses and that they had no impact on her activities as a businesswoman.
Contrary to what was initially assumed by the first instance court, she was not identified as a leading figure in the drug case, and her role mainly consisted of making her home available for drug trafficking by some family members.
It is also important to note that Ms. B. was acquitted in the criminal proceedings for money laundering through the childcare center, and that the civil action filed by Kind en Gezin against her was dismissed.
Regarding the initial assumption that Ms. B. also abused the subsidies granted to her by Kind en Gezin, the criminal investigation did not produce any evidence.
The initial declaration of claim filed by Kind en Gezin in the bankruptcy for EUR 1 was rejected with the agreement of the creditor.
Regarding the earlier conviction for, among other things, forgery referred to in the criminal judgment, nothing is found on the extract from the criminal record. This conviction, of which no details are available and which may date back to a distant past, did not prevent her from obtaining a license to operate a childcare center and is therefore not considered an element to be taken into account in assessing the discharge.
There is no evidence in the file that Ms. B. did not comply with tax or social security regulations. The receiver also found no indications of this.
The court amends the contested judgment and declares Ms. B. discharged.
The discharge applies to all debts of the bankrupt that existed at the time of the bankruptcy declaration. This includes both business debts and personal debts (but not those of the spouse or legally cohabiting partner) of the bankrupt. Debts arising during the bankruptcy proceedings (estate debts) or arising from a new professional activity of the bankrupt are not covered by the discharge.
The following debts are not discharged:
On the basis of the bankruptcy judgment of the legal entity and their unlimited liability, the receiver can request payment of the debts of the legal entity from those partners.
The receiver of the bankruptcy of such a company can ensure that certain or all partners are declared bankrupt by summons.
Partners of a bankrupt general partnership, limited partnership, public limited company, cooperative company, or partnership who want to obtain discharge and have not yet been summoned by the receiver can declare their personal bankruptcy themselves. In that declaration (which can also be made later), they must expressly indicate that they are requesting discharge.
Partners who own real estate are vulnerable in case of bankruptcy of their company with unlimited liability. They may have every interest in submitting an installment proposal to the receiver of such a company.
Some judges still refuse complete discharge even if not all creditors oppose:
The correct view
Orb. Ghent, division Bruges 04/04/2022, TIBR 2/2022, RS-204 & Orb. Ghent, division Bruges 18/01/2021, TIBR
An individual creditor has no interest in claiming the complete refusal of discharge.
Otherwise: No discharge because it violates public economic order
Orb Antwerp, 15/12/2020, TBH 2021, 1078:
Complete discharge can be refused even if only a few creditors request it, when the gross obvious error is situated in the general attitude of the bankrupt in economic traffic and the gross obvious error is causally related to the complete passif.
The assessment of discharge concerns the collective procedure and goes beyond the individual interest of the bankrupt.
Antwerp 02/09/2021, TBH 2021, 1082:
Partial discharge can be refused regarding the creditors who request it and can be granted regarding the other creditors.