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SILENT BANKRUPTCY

Jan 22, 2025

When a company is no longer able to pay its short-term debts and is no longer considered creditworthy, the company must file for bankruptcy within a month. In traditional bankruptcy, once the filing is made the court will pronounce the bankruptcy immediately and a bankruptcy notice will be published in the Belgian Official Gazette. A receiver will be appointed, as well as a supervisory judge to oversee the procedure.

Since the introduction of Articles XX.97/1 to XX.97/6, which has applied as from1 September 2023, the Belgian Code of Economic Law (“BCEL”) allows a company in bankruptcy to prepare for bankruptcy quietly, i.e. without publicity.

A silent bankruptcy (also known as “pre-pack”, to use the Anglo-Saxon expression) is initiated by filing a petition in which the debtor demonstrates that this method of reorganization will (1) facilitate the liquidation of the company whereby the highest possible payout to the joint creditors is achieved and (2) preserve employment as much as possible. The chambers will then consider this request within three working days. If the request is granted, the company court will appoint a provisional receiver and a provisional supervisory judge for a maximum period of thirty (30) days, extendable by up to 30 days. They will, in principle, also act as receiver and supervisory judge in the event the company is effectively declared bankrupt. During the proceedings no suspension is granted, and it remains possible for a creditor to still sue the company in bankruptcy. The enterprise itself may also still file for bankruptcy during the preparatory phase.

The provisional receiver represents the interests of the creditors and must examine the feasibility of the scheme proposed by the debtor. In doing so, he or she should check in particular whether a proposed business transfer would be made to related parties and, if that is the case, inform the provisional bankruptcy judge.

The advantage compared to traditional bankruptcy is that the debtor retains control which permits the debtor to prepare the transfer of part or all of assets or activities within a short period of time prior to the bankruptcy declaration. The transfer is only effective once the bankruptcy is declared. This procedure can maximize the proceeds available for the creditors by allowing the transfer of assets to take place on a going concern basis.

 

There are also other significant advantages of the Silent Bankruptcy procedure:

• Although it will be a point of focus for the supervision by the provisional receiver and the provisional supervisory judge, it is not excluded that a transfer may be made to a party “related” to the existing shareholders or directors.
• The chance that the agreed transfer is reversed at the request of the receiver in the bankruptcy is limited, since the preparation took place under his supervision and that of the supervisory judge. Because of the way the receiver’s fee is calculated, he also has an incentive to achieve an asset transfer that meets the conditions of the ‘pre-pack’ after his formal appointment.
• The Supreme Court, in a judgment of 19 January 2006, defined the concept of de facto liquidation, where the directors of a company actually proceed to liquidation in disregard of the rules of priority among creditors. The risk of liability for this is virtually eliminated by silent bankruptcy.
• The obligation to request and transfer tax and social security certificates to the transferee, under penalty of joint and several liability for the debts of the transferor, does not come into play in bankruptcy.

• Under Belgian law, where an economic entity is transferred to a new employer as a ‘going concern’ Collective Bargaining Agreement n° 32bis (CBA32bis) applies. But in a Silent bankruptcy the effects of CBA 32bis are limited; the transferee can freely choose whom to employ. Continuing employee’s seniority and any applicable sectorial CBAs will be transferred.

 

The silent bankruptcy procedure also brings certain new questions and concerns to the surface:

• Apart from a few high-profile cases, silent bankruptcy is currently proving unpopular. In the district of Flemish Brabant and Dutch-speaking Brussels, where the Dutch-speaking company courts of Brussels and Leuven have jurisdiction, only eight silent bankruptcies have been pronounced to date. Cases before French-speaking courts appear to be more frequent.
• There is no firm guarantee that the agreed transfer will be effectively carried out by the receiver after the bankruptcy judgment. Indeed, the receiver is not obliged to do so. A prudent liquidator who judges that the agreed transfer is sub-optimal may still consult the market and may possibly transfer the assets to a third-party.
• The supervising bankruptcy judge, who often has a business background, has considerable influence on the analysis of the price of the agreed transfer in practice notwithstanding his legally limited role.
• Finally, provisional receivers consider that their powers are too limited to adequately protect the interests of creditors. In addition, there is no clear mechanism for verification of the agreed transfer by a judicial authority which, in practice, is regulated on the basis of article XX.142 of the CEL governing the urgent transfer of assets subject to rapid depreciation.

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The ‘enterprise mediator’ previously referred to in the Code of Economic Law is now referred to as a ‘reorganization practitioner’: but the ‘reorganization practitioner’ may still play a role as a mediator.

In a contribution from early 2023, we explained the distinction between an “accredited mediator” (médiateur agréé) appointed jointly by parties to resolve a particular dispute and an “enterprise mediator” (médiateur d’entreprises), who (at that time) was designated by Article XX.36 of the Code of Economic Law and appointed at the unilateral request of a company in difficulty.

Article XX.36 of the Code of Economic Law was repealed by Article 44 of the Law of 7 June 2023 which came into force on 1 September 2023. As we shall see below, the role of the company mediator is now taken on by a ‘reorganization practitioner’.

Reorganization practitioners have specific experience in insolvency law which makes them particularly valuable in the process of restructuring companies in difficulty, as provided for by Book XX of the Code of Economic Law. Strictly speaking, they are judicial representatives who, while contributing (subject to a minimum of formal constraints) to the recovery of a company in difficulty can, at the same time, bring about a resolution of individual disputes.

For example, a reorganization practitioner could act at the request of a franchisee who has a dispute with his franchisor, and at the same time is confronted with a revocation of his bank loans due to disappointing turnover figures and liquidity shortages. In this case, once appointed and strengthened by an “official/judicial” mandate, the enterprise mediator (now reorganization practitioner) will strive, respecting all confidentiality, to get everyone on the same page in the short term and can, hopefully, save the company from collapse. In that context they may approach the bank and other stakeholders, possibly including the staff, as well as suppliers and also make contact with the franchisor and mediate “classically” (as an accredited mediator does).

Appointment of an enterprise mediator (now reorganization practitioner) at a very early stage, (i.e. before resorting to private or collective judicial reorganization procedures), can be a very efficient preventive tool. However, this tool remains relatively unknown and unloved, despite the regular and active information campaigns of the courts, via social media, seminars and also via their website. (For an application to appoint a reorganization practitioner see the forms available (in FR and NL) from the Brussels Enterprise Court). (In Dutch a brochure about the appointment of a reorganization practitioner is available here .)

By an Act of 7 June 2023 implementing the Restructuring Directive (1), which entered into force on 1 September 2023, the Belgian legislator considered that the role of a “reorganization practitioner” (“praticien de la réorganisation”) defined in the Restructuring Directive should be included in the Code of Economic Law (Book XX).

The definition of a ‘reorganization practitioner’ as a legal representative appointed by the insolvency court and set forth in Book I, Chapter 14, Article I.23 7°/01 of the Code of Economic Law is almost identical to that included in the Directive.  In particular, the reorganization practitioner is to:

• assist the debtor or creditors in the preparation or negotiation of a reorganization plan;
• supervise the debtor’s activities during the negotiation of a reorganization plan, and report to the court;
• exercise partial control of the debtor’s assets or assets without dispossession, before or during the negotiations for a judicial reorganization.

As you may notice, this definition refers to tasks that were previously performed by ‘judicial representatives’ (“gerechtsmandatarissen” or “mandataires judiciaires” and before that by so called ‘commissioners for deferment [of debts]’ (“commissarissen inzake opschorting” or “commissaires au sursis”). They are all replaced by the reorganization practitioner.

Notably, however, the definition does not refer to another core task of the reorganization practitioner, namely his role as an enterprise mediator. Moreover, the definitions in the Code of Economic Law Book I, Chapter 14, might (wrongly) give the impression that enterprise mediation is no longer part of business reorganization … Until, that is, one comes across Section 3 of Book XX, Chapter 2 (Art. XX.29/2), which is entitled ‘Enterprise mediation’ (“Ondernemingsbemiddeling“ / “Médiation d’entreprise“ ).

Article XX.29/2 clarifies that at the request of the debtor, the Chamber for Enterprises in Difficulty can appoint a reorganization practitioner (read: enterprise mediator) to facilitate the recovery of the company. Furthermore, the article states that both the terms of the reorganization practitioner’s mediation tasks (… “sa mission de médiation” … “de opdracht van de bemiddeling”) and the reports of the reorganization practitioner (read: enterprise mediator) are confidential.

Finally, note that, apart from appointment on the basis of Article XX.29/2 of the Code of Economic Law, in certain urgent cases (where, for example, the Chamber for Enterprises in difficulty is unable to sit), the President of the Enterprise Court may make a provisional ruling on all applications falling within the competence of his/her Court, on the basis of Article 584 of the Judicial Code.

Conclusions: Due to the designation of ‘reorganization practitioners’ coupled with the deletion of the Article that explicitly referred to ‘enterprise mediators’ in the current Code of Economic Law: it will not be surprising if both companies and legal advisors have lost track of the continuing role for ‘enterprise mediation’ as it impacts companies in difficulty. Even if referred to by another name, the role of the enterprise mediator continues to exist, whether assisting as a restructuring expert in pre-insolvency tasks or, at a later stage, acting to assist the debtor with a reorganization plan, supervising business activities, including (on occasion) partial control of assets.

Accordingly, it would be preferable for the legislator, in recognition of the mediation tasks clearly assigned to the reorganization practitioner in Article XX.29/2 of the Code of Economic Law, to find room for a clearer reference to the qualities of an enterprise mediator that a reorganization practitioner needs to fulfil. One possibility might be to revise Art. XX.20/1. (Code of Economic Law, Book XX, Title I Chapter 14, Section 2) to recognize enterprise mediation as one of the capabilities that a reorganization practitioner needs to offer.

(1) Directive (EU) 2019/1023: Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency).

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“Silent bankruptcy” – Unpublicised preparation for a business failure – A new and efficient tool in the restructuring toolbox?

 Jan 22, 2024

INADEQUACY OF JUDICIAL REORGANISATION (“PGR/PRJ”) PROCEDURES – (procedure gerechtelijke reorganisatie {PGR} / procédure réorganisation judiciaire {PRJ})

Successive crises have resharpened businesses’ focus on how to achieve rapid and efficient corporate restructuring. So-called ‘asset deals’ (trade sales/carve-outs), in which a business activity or certain assets are transferred from a distressed company to a healthy one, are one essential tool in this toolbox.

Whatever a business’s continuity or discontinuity scenario, the restoration of all material (and certainly the most valuable) assets and resources to economic productivity is expected as soon as possible. Yet even champions of traditional judicial reorganization have to acknowledge that the available procedures (amicable and collective agreements, transfer under judicial authority) are sub-optimal at times and expensive in any event.

Moreover, if the conditions necessary for a successful PGR/PRJ are not rapidly met, it is like dancing on a slack tightrope. The longer cessation of payments continues during the so called ‘suspect period’ (Verdachte Periode / Période Suspecte), and the more imminent that bankruptcy itself has therefore become, the greater the risks of criticism and potentially of liability claims against the directors by the creditors and the suppliers, including the banks, staff and, last but not least, the receiver.

 

VOLUNTARY BANKRUPTCY

When a company is no longer able to pay its short-term debts and is no longer considered creditworthy, the company must file for (voluntary) bankruptcy within a month. In conventional voluntary bankruptcy, once the filing is made the court will pronounce the bankruptcy immediately and a bankruptcy notice will be published in the Belgian Official Gazette. A receiver will be appointed as will a supervisory judge to oversee the procedure and the company’s management loses its authority over the business.

 

THE NEW ‘SILENT’ BANKRUPTCY

However, the introduction on 1 September 2023 of Articles XX.97/1 to XX.97/6 of the Belgian Code of Economic Law (“CEL”), allows a distressed company to prepare for a reorganization quietly, away from the pressure of publicity.

A Silent Bankruptcy (the term ‘pre-pack’ from Anglo-Saxon practice is sometimes used) is initiated by filing a petition in which the debtor demonstrates that using this method of reorganization will: (1) facilitate a liquidation of the company that achieves the highest possible payout to the joint creditors; and (2) preserves employment as much as possible. The competent enterprise court’s chamber for companies in difficulty will consider the request within three working days. If the request is granted, the enterprise court will nominate a provisional receiver and a provisional supervisory judge for a period of up to thirty (30) days. In principle, they will also act as the receiver and supervisory judge when the bankruptcy is declared. (The initial period can be extended by a further 30 days.) During the ensuing preparatory phase of the reorganization, no suspension of liabilities is granted, and it remains possible for a creditor to apply for a declaration of bankruptcy. (The debtor business can itself still file for {voluntary} bankruptcy during this phase.)

Compared to conventional voluntary bankruptcy proceedings, the advantage of a Silent Bankruptcy is that the debtor remains in control, with the provisional receiver required to facilitate the preparation of an asset sale in the impending bankruptcy by assessing whether the arrangements the debtor proposes are achievable.  A Silent Bankruptcy therefore allows the debtor to prepare the transfer of part or all of assets or activities within a short period of time prior to the declaration of bankruptcy. The transfer is only effective once the bankruptcy is declared. This procedure can maximise the proceeds available for the creditors by allowing the asset transfer to take place on a going concern basis.

Other significant advantages of the Silent Bankruptcy procedure:

• The acquisition could be made by a party ‘related’ to the existing shareholders or directors.
• The chance that the agreed transfer is reversed at the request of the provisional receiver in bankruptcy is limited, as the preparation phase takes place in full transparency, under his or her supervision, and that of the supervisory judge. Because of the way the receiver’s fee is calculated, the provisional receiver continues to be incentivized to achieve a workable result after being appointed.
• In a judgment of 19 January 2006, the Belgian Supreme Court, defined the concept of a de facto liquidation, where the directors of a company proceed with the liquidation of the company in disregard of the priority rules among creditors. Any risk of liability for such disregard is essentially eliminated by following the Silent Bankruptcy procedure.
• The obligation to request and transfer tax and social security certificates to the transferee of a business, under penalty of joint and several liability for the debts of the transferor, does not come in a play in bankruptcy.
• Under Belgian law, where an economic entity is transferred to a new employer as a ‘going concern’ Collective Bargaining Agreement n° 32bis (CBA32bis) applies. But in a Silent bankruptcy the effects of CBA 32bis are limited; the transferee can freely choose whom to employ. Continuing employee’s seniority and any applicable sectorial CBAs will be transferred.

 

CONSEQUENCES OF A ‘SILENT BANKRUPTCY’ AFTER THE ACTUAL BANKRUPTCY

When the legislator decided to introduce Silent Bankruptcy into the Code of Economic Law by inserting articles XX.97/1 et seq., it answered a clear demand from insolvency practitioners. However, the manner in which the new rules were introduced has been the subject of criticism.

As already mentioned, when the proposal for a Silent Bankruptcy is accepted, and a proposed receiver and a proposed bankruptcy judge are appointed, that is only a preparatory phase for the actual bankruptcy that follows. The process involves preparing a “transition of all or part of the assets and activities”. We will refer to that transition as an “Arrangement” below.

The legislator introduced the Economic Code provisions on Silent Bankruptcy without amending the other provisions of the bankruptcy law to take account of this new reality. So, the law does not specify exactly how the Arrangement concluded during the Silent Bankruptcy, and prior to the actual bankruptcy, should be effectively implemented. Indeed, in principle, once appointed, a receiver has to wait until the first official report on the verification of claims, which is generally drawn up about a month after bankruptcy, before proceeding to the actual liquidation (sale) of the assets.

Under Article XX.142 of the Code of Economic Law, a derogation from this principle can be made, on petition, with the authorization of the supervising judge in case the assets are “subject to speedy decay or depreciation”. It is expected that provisional receivers will invoke this exception.

It also remains to be seen how creditors, who are in principle allowed to file their claims at least 30 days after bankruptcy, and who may or may not have priority claims in relation to the transferred assets, will react when faced with a ‘silent’ Arrangement.

Finally, while, in principle, the provisional receiver of the Silent Bankruptcy will also always be appointed as receiver in the subsequent bankruptcy, there remains the – perhaps rather theoretical – possibility that the enterprise court could deliver a “reasoned dissenting decision” and appoint a different receiver (see the CEL Article XX.97/5). Could the new receiver, who was not involved in the Silent Bankruptcy, be entitled not to execute agreements concluded before bankruptcy was concluded on the basis of CEL Article XX.139? Is the (replaced) provisional receiver a party to the Arrangement? Is there a binding Arrangement at all?

To conclude, it is currently impossible to offer one hundred percent certainty that an Arrangement drafted during the Silent Bankruptcy phase will be effectively implemented after the actual bankruptcy is declared.

We do expect that case law and legal doctrine will come up with answers fairly quickly, although it would perhaps have been better if the legislator had built in a mechanism for confirmation of the Arrangement when the actual bankruptcy was pronounced by the court. Nevertheless, the Silent Bankruptcy procedure has been received enthusiastically by the majority of insolvency practitioners. We expect that, notwithstanding the outstanding questions, the transfer of assets in the context of a Silent Bankruptcy will certainly be an interesting procedural option to consider in the future.

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