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Post-crisis processing procedure

Verified 05 November 2021 - Legal and Administrative Information Directorate (Prime Minister)

The post-crisis processing procedure is a new procedure for small companies that are in default but which were operating in satisfactory conditions before the health crisis. They must be able to submit a draft business continuity plan. This procedure has been applicable since 18 October 2021. The initiation of this procedure may be requested until 2 June 2023.

  • Companies engaged in commercial, craft or agricultural activities
  • Businesses and Associations
  • Self-employed and professionals

All of the following conditions must be met:

  • Be in a default position
  • Have the necessary funds to pay his salary claims
  • Justify being able to develop a draft continuation plan within 3 months
  • Have less than EUR 3 million of reported non-equity liabilities
  • Have fewer than 20 employees

Please note

the number of employees to be taken into account is the number of employees employed at the date of the request to initiate the procedure. The balance sheet criterion shall be assessed at the closing date of the last accounting year.

The officer, manager or individual contractor must submit the following documents to the Commercial Court in the case of a business and to the Judicial Court in the other cases:

  • Annual accounts for the last financial year
  • Statement of Liabilities and Available Assets and a Statement of Termination
  • Extract of registration to registers and directories or unique identification number
  • Cash position
  • Forecast income statement
  • Number of employees employed at the date of application and balance sheet total and turnover amount
  • Justification for payment of salary claims
  • Encrypted Statement of Receivables and Debts
  • Assets and liabilities and off-balance sheet liabilities
  • Summary Inventory of Debtor Assets
  • Name and address of the representatives of the staff delegation of the Social and Economic Committee
  • Certificate of honour certifying the absence of an ad hoc mandate or conciliation procedure relating to the property in question within 18 months preceding the date of application

Please note

this mechanism is intended for companies who are able to submit a draft business continuity plan within a short period of time and who have very up-to-date accounts.

Once the conditions have been met, the court shall initiate the proceedings and appoint a representative to supervise the company and represent the creditors.

Appointment of the representative and duration of the procedure

The Commercial Court (for commercial and craft activities) or the Judicial Court (for agricultural and liberal activities) shall appoint an agent to supervise the company and represent creditors. It can be a judicial administrator or a judicial agent.

The judgement that opens the post-crisis processing procedure opens a period of observation. This period lasts 3 months maximum.

After 2 months, the court orders the continuation of the proceedings if it appears that the company has sufficient capacity to finance it.

Preparation of the list of creditors

Within 10 days of the opening judgement, the director or contractor shall file the list of creditors that he establishes alone. Therefore, there is no declaration of debt as in the judicial remedy.

The Registrar of the Commercial Court shall deliver a copy of the list to the agent. This verifies the compliance of the list with the company's accounting documents.

The creditors 1 month to update their claims. This period shall run from the date of publication of the procedure in the Official Gazette of Civil and Commercial Advertisements (Bodacc) or from the date of communication of the claims by the representative (the date chosen being the earliest).

Where a claim is not included in the list of claims and is brought to the attention of the proxy, the proxy shall inform the creditor single letter the opening of the proceedings. The agent shall ask the creditor for details of the claim.

The appointed representative shall inform coobligated persons or who have consented security personal property or that has assigned a property as collateral (i.e. pledge or collateral(b) the initiation of the exit procedure, by registered letter with request for notification of receipt.

This list of creditors is used to build the continuation plan.

At the end of the 3 months, the court validates the continuation plan or initiates a reorganisation or judicial liquidation procedure.

Content of continuation plan established by court

The court shall adopt the plan under the conditions laid down for backup procedure.

The continuation plan shall provide for a staggering of the liability over a maximum period of 10 years and may not provide for any transfer of company, or for redundancies for example.

The amount of the annuities provided for in the plan from the 3rd annuity may not be less than 8% the liability established by the debtor.

The plan thattheclaims listed as creditors prior to the initiation of the procedure.

The plan does not cover the following claims:

  • Claims arising from a contract of employment (wages, vacation pay)
  • Maintenance claims
  • Claims of tort/delict (amount due in connection with a conviction)
  • Claims less than €500

Continuation plan failed

If the company is not able to present a viable continuation plan within the 3 months of the opening judgement, a recovery procedure or court settlement can be opened if the conditions are met.

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