ALTIUS updates

Effects of bankruptcy on spouses' personal debts
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 07 December 2018

The former Bankruptcy Statute of 1997 included a principle that a natural person could be discharged of their remaining and outstanding debts – a so-called 'waiver' – at the moment of a bankruptcy's closure. The discharge's beneficial effects were extended to the bankrupt person's spouse. However, for bankruptcies that have happened since 1 May 2018, and so fall under the new legal framework, this situation has changed.

Follow-up monitoring of companies in financial difficulty
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 07 September 2018

The legislature recently took steps to improve the follow-up monitoring of companies in financial difficulty and strengthen the fight against inactive companies. To determine whether companies are in financial difficulty, the courts gather information from various (digital) sources. However, the focus remains on preventive mechanisms – namely, identifying companies in financial difficulty and following up with court action.

Personal bankruptcy of company administrators
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 27 July 2018

The Belgian insolvency law's scope was recently broadened. As of 1 May 2018, all entities that are involved in commercial or entrepreneurial activities can be declared bankrupt (or enter into court-supervised reorganisation proceedings). Discussion has started about whether company administrators can also be seen as being 'involved in an entrepreneurial activity' and thus declared bankrupt.

Insolvency goes digital: Regsol and its innovations
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 15 June 2018

The digitisation of different insolvency proceedings (ie, bankruptcies, judicial reorganisations and company voluntary agreements) recently reached a new milestone. All new insolvency files must now be commenced through the Central Solvency Register (Regsol) and followed up on the same system. Regsol offers a number of new features, including the electronic storage of insolvency files and a new declaration of debt form.

Relationship between privileged and secured creditors
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 04 May 2018

If reorganisation proceedings are unsuccessful and lead to bankruptcy proceedings, creditors with new claims resulting from services performed during the reorganisation proceedings often find it difficult to receive payment of their privileged claims when they are in competition with a general pledge on the debtor's estate that is held by a bank. The Supreme Court's recent judgment in this regard will help such privileged creditors to receive payment from the bankrupt estate.

Stricter scrutiny of inactive companies
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 02 February 2018

The legislature recently took steps to improve the follow-up monitoring of companies in financial difficulty and strengthen the fight against inactive companies. Companies that fail to pay their social security or value added tax debts, file their annual accounts or fulfil other administrative obligations on time will now appear on the radar of the Commercial Court's Investigative Services much earlier. The services' recently extended powers of action could lead to unfortunate surprises for some companies.

Administrator liability in bankruptcy framework
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 03 November 2017

Parliament recently voted into law the federal government's proposal to introduce a new chapter on insolvency into the Code of Economic Law. Among other things, the new chapter concerns the potential liability of former directors of a bankrupt company. Some of the new principles already partially existed in Belgian law, but have been amended by the new chapter, which also broadens certain concepts which will thus apply to a wider range of entities.

Reorganisation plan: position of secured creditors
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 21 July 2017

The Business Continuity Act aims to enable debtors in difficulty to continue their activities by restructuring their debts. One of the proceedings that the act introduced is the reorganisation of debt pursuant to a restructuring plan. The restructuring plan may consist of several measures, including the waiver of certain debts. However, none of these measures (with the exception of a temporary stay on the enforcement of claims) may be imposed on secured creditors, unless they expressly agree to it.

Changes to insolvency regime proposed
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 12 May 2017

The government recently undertook steps to modernise and broaden its insolvency legal framework and submitted a proposal to Parliament intended to introduce a new chapter to the Code of Economic Law. The proposal will update the Bankruptcy Act and the Business Continuity Act. The government proposal will be discussed in Parliament in the coming weeks and could be accepted before the summer recess.

Insolvency in franchising relationships
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 17 February 2017

Franchisees are often unable to fulfil their payment obligations. The special cooperative relationship between a franchisor and its franchisee usually leads to negotiations and contractual agreements between the parties regarding the repayment of accumulated debts. However, the franchisee may still become insolvent. A key question is whether showing leniency in the context of insolvency proceedings will be beneficial or detrimental to a franchisor.

Reorganisation proceedings: access and possibilities
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 02 December 2016

The Business Continuity Act of January 31 2009, amended in 2013, provides for specific (court-supervised) restructuring proceedings, during which the company (or debtor) is protected against its creditors' claims so that it can reorganise its business. For debtors, one of the act's major advantages is its 'open-gate' approach. In essence, this approach means that court protection is granted if the company's continuity is threatened and the debtor files a request in this regard.

Reservation of title: legal guidelines and practical tips
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 16 September 2016

Suppliers are often surprised by their customers' insolvency and only at that moment discover that the goods that they delivered are unpaid. Even when a reservation of title has been inserted into the contract, the repossession of goods can be difficult in practice. Measures that can help the recovery process include ensuring that a reservation of title clause is clearly drafted and that each single good is identifiable.

Broadening scope of insolvency legislation
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 01 July 2016

Historically, Belgian insolvency legislation has applied only to entities involved in commercial activities. However, recent jurisprudence and upcoming legislative changes will result in important amendments that are intended to broaden the scope of existing legislation. As a result, entities that are involved in commercial or entrepreneurial activity will be eligible to benefit from bankruptcy legislation.

Invalidated SPC retains prima facie validity in preliminary injunction proceedings
ALTIUS
  • Healthcare & Life Sciences
  • Belgium
  • 25 September 2013

A pharmaceutical company requested a preliminary injunction against a generic manufacturer based on one of its invalidated supplementary protection certificates. An appeal court granted the injunction, but the generic manufacturer appealed to the Supreme Court. The court's decision is notable for its distinction between the authority and the force of res judicata, and the implications of this distinction for rights holders.

GMO trial gets green light despite formal invalidity
ALTIUS
  • Healthcare & Life Sciences
  • Belgium
  • 08 May 2013

The government has implemented a strict regulatory framework for genetically modified organism field trials. But what happens when one of the players fails to respect the rules? Does it affect the valid work that has already been done by others? These questions recently arose before the Ghent Court of First Instance in the context of expedited civil proceedings initiated by Greenpeace against the Belgian state.

Mock-ups no proper notification of repackaged pharmaceutical parallel imports
ALTIUS
  • Healthcare & Life Sciences
  • Belgium
  • 13 February 2013

The Brussels Court of Appeal recently ruled that a parallel importer did not properly notify a pharmaceutical trademark holder when it provided a two-dimensional mock-up of the outer packaging, rather than an actual sample, of the repackaged pharmaceutical as it would be presented on sale. The decision provided much-needed clarity, as the first instance court had issued contradicting decisions on the matter.

Doctors not easily misled? Brussels court decides on pharmaceutical advertising
ALTIUS
  • Healthcare & Life Sciences
  • Belgium
  • 28 November 2012

The Brussels Commercial Court has dismissed Pfizer's misleading claims directed against an advertisement for a generic product marketed by Eurogenerics, as well as Eurogenerics's counterclaim regarding the marketing of Pfizer's own generic product. The court's relaxed views on doctors' awareness of the regulations on reimbursement and their implications will be of interest to pharmaceutical marketeers.