FLINN is here to support you !
True to its values, FLINN is listening to our clients and looking for pragmatic solutions to the problems posed by the COVID 19 crisis. Through these FAQ, we share responses to various questions raised by clients whose normal business operations or the continuity of their activities is affected. We will emerge from this crisis stronger together. This information will be updated regularly (last update: January 14, 2021).
Is it possible to invoke the COVID-19 pandemic as a force majeure event with regard to a commercial contract ?
Notwithstanding the fact that the Belgian government has declared a state of national emergency to stop the spread of COVID-19 and has acknowledged the difficulty that the current situation represents for Belgian companies, particularly by suspending the application of late penalties for all federal government procurement contracts, at this point in time the FPS Economy has still not declared COVID-19 as a case of force majeure (https://economie.fgov.be/fr/themes/entreprises/le-coronavirus-et-ses). Therefore, the party invoking it in order to suspend its contractual obligations would need to demonstrate that COVID-19, and more specifically the restrictive measures imposed by the government to counter it, meet the cumulative criteria of force majeure, i.e., constitute an unforeseeable event on the day the contract is concluded and is irresistible both in its occurrence (unavoidable) and in its effects (insurmountable), making the performance of the contract temporarily or definitively impossible.
While the mere existence of the virus could not constitute a force majeure event, there is no doubt that the pandemic and the binding administrative decisions taken in recent days to counter its spread and the resulting suspension or significant hindrance to the activity of economic stakeholders could be recognised as constituting force majeure, due to their exceptional (and therefore unforeseeable) and imperative (and therefore irresistible) nature.
It goes without saying that whilst the anti-COVID-19 measures can be considered “unforeseeable and insurmountable” for current contracts, this will not be the case for any contract concluded after the emergence of COVID-19 at the beginning of 2020 and following the restrictive measures decreed to ward it off (the criterion of unforeseeability being assessed on the day the contract was concluded and most probably no longer being met).
Furthermore, in addition to the question of force majeure, it is also necessary to consider whether the COVID-19 pandemic can be invoked as a cause of hardship allowing the parties to renegotiate the terms of the contract (in the event that the latter contains a hardship clause).
What do I have to do in practice to be able to invoke the force majeure event and request the suspension of my contractual obligations or even the dissolution of the contract ?
The first step consists of examining the provisions of your contract/general terms and conditions: do they contain force majeure or hardship clauses?
In general, commercial contracts contain force majeure clauses which govern situations in which certain specified circumstances hinder and/or make it impossible the performance of contractual obligations. These clauses usually define the very notion of the force majeure event. When one of the events listed in these clauses occurs, the clause generally prescribes what the parties must do accordingly. For example, a party invoking force majeure might be required to notify its counterparty and take reasonable steps to attenuate its effects.
Since the COVID-19 pandemic is a relatively new phenomenon, it is unlikely that a force majeure clause would make explicit reference to its occurrence. Therefore, in order to be able to invoke the clause, the parties will have to take into account other anticipated events, such as epidemics or the measures taken by governmental authorities.
It should also be pointed out that contracts generally provide for notice periods and other measures to be taken in the event of a party wishing to avail itself of a force majeure clause. Therefore, it is always prudent to obtain legal advice as to whether or not notification of the invocation of the force majeure mechanism is a contractual prerequisite.
We would like to recall that the parties will have to operate within the bounds of good faith in the interpretation and implementation of contractual clauses, as well as in their discussions aimed at temporarily adjusting their reciprocal obligations.
In the absence of specific contractual clauses, it will be necessary to refer to ordinary law and its related provisions (in particular articles 1147 and 1148 of the Civil Code regarding force majeure events).
In either case, it is essential to immediately notify your counterparty of the contingencies encountered as a result of the emergence of COVID-19 and to begin any useful negotiations as soon as possible in order to reach an amicable agreement. If this proves to be impossible, you should seek the assistance of a professional to assert your rights. In the event of disputes, we remind you that it is always possible, and even desirable, to consider one of the alternative dispute resolution methods, such as civil and commercial mediation, before taking the matter before the relevant courts.
How about insurance coverage for companies experiencing policy cancellations due to the COVID-19 pandemic?
It is only by analysing the clauses of your insurance contract that an answer can be provided as to any possible indemnification. In particular, it will be necessary to check whether or not, before the COVID-19 health crisis was revealed, your company had subscribed to cancellation insurance with a pandemic extension. Contact your insurer or broker as soon as possible.
The Federal Government will not apply penalties or sanctions against contractors, enterprises and self-employed persons for all federal government contracts provided that it is shown that the delay or failure to perform is attributable to Covid-19.
Since 1 May 2018, the judicial reorganisation procedure has been open to all enterprises (i.e. self-employed persons, legal persons, organisations without legal personality), subject to certain exceptions.
As soon as the petition is filed, your business will already benefit from certain protections against your creditors (see below).
As for the conditions and formalities to be met, your business must be in ‘financial difficulties’, i.e. the continuity of your business must be threatened, either in the short term or in the long term or, if your business is a legal entity, if the losses have reduced the net assets to less than half of the share capital. An application (Article XX.41 Belgian Code of Economic Law – hereafter “CDE”) (the application template (attached) is only available in French and Dutch) supplemented by a series of annexes (11 in total) must be filed on the Regsol electronic platform (https://www.regsol.be/). The annexes are described in the application template, but we would like to draw your particular attention to the importance of certain annexes that will be prepared with the assistance of accounting professionals and which describe your recent accounting situation, the budget to be provided for during the period of suspension and the restructuring measures that will enable you to turn your company around.
The court has 15 days from the date of filing in the register to examine your request. However, given the current circumstances that it will in fact take longer, it is possible that the court backlog will increase and that the courts will be overwhelmed by such applications.
Nevertheless, do not worry. Once the application for judicial reorganisation is filed, no real or personal property can be realized by a creditor as a result of the exercise of an enforcement remedy and you cannot be declared bankrupt or, if you are a legal person, be judicially dissolved. (What is referred to as the suspensive effect!)
However, before applying for the protection of a JRP, you may be wise to consider other possible restructuring measures and negotiations with your strategic partners (banks, suppliers, etc.) to find an amicable agreement (excluding judicial re-organisation). Ask yourself whether you should start restructuring your labour and social restructuring obligations knowing that you will not receive any reduction in social liabilities under a JRP. If you are considering making a collective agreement with your workforce, are you sure that you will obtain a double majority of votes (in number and value) in favour from the creditors? Only an accurate view of your company’s financial and accounting situation will allow you to verify the JRP’s viability. The role and assistance of your accountant or auditor will therefore be crucial here!
How to avoid the negative publicity effect of a judicial reorganisation procedure (JRP)? What are the advantages of an amicable settlement outside the JRP.
All too often JRP has been seen as the antechamber to bankruptcy and it must be recognized that the announcement that a JRP petition has been filed will frighten suppliers, customers and staff.
Rather than engage in a public procedure, Article XX.37. CDE provides for an amicable agreement procedure which is confidential. The debtor seeks to reach an agreement with all or at least two of its creditors for the reorganization of its financial situation or the reorganization of its business. In general, the debtor approaches its strategic partners and freely agrees with them on the terms and conditions necessary to continue the business relationship: for example, it will grant certain cash payments and guarantees to obtain the urgent resumption of deliveries of goods. You can propose the appointment of a company mediator who will assist you in this process. The amicable agreement includes an express confidentiality clause and an express indivisibility clause and will be enforceable against third parties in the event of bankruptcy. It must be carefully drawn up, stating the reasons for its usefulness for the reorganisation of the company, in order to avoid the application of Articles 1328 of the Civil Code, and CDE Articles XX.111, 2° and 3°, and XX.112. The written agreement will be filed in the register of the Regsol electronic platform) by the most diligent party and will be kept there without third parties having access to it (unless the debtor agrees). However, you must consult and inform the employees or their representatives in accordance with the legal or contractual provisions in force.
Through Royal Decree No. 15, regarding the temporary suspension of enforcement measures and other measures in favour of companies during the COVID-19 crisis (M.B. 24/04/2020), the Belgian Government has provided a period of generalised suspension for attachment and enforcement measures by creditors against business debtors affected by the Covid-19 crisis. It lasts for the period 24 April 2020 to 17 June 2020 (but is renewable). For further details see “Royal Decree No. 15 regarding the temporary suspension of enforcement measures and other measures in favour of companies during the COVID-19 crisis“.
It is already known that, in accordance with Royal Decree No. 2 published in the Belgian Official Gazette on 9 April 2020, limitation periods and deadlines for filing a civil action that would have expired between 9 April and 17 May 2020 ( have been automatically extended by one month. In addition, procedural deadlines and deadlines for filing an appeal which would have expired between 9 April and 17 May 2020 have also been extended by one month. In the same way, cases scheduled for hearing between 11 April and 17 June 2020 will, in principle, be handled using a written procedure. (Each of the periods of grace referred to above can be extended by a further decree if that proves necessary.)
Royal Decree No. 15 clearly extends the scope of the measures already taken by the Government, since it prevents creditors, during the aforementioned period, either from initiating or continuing enforcement and precautionary or executory attachment measures on the debtor’s moveable assets (real estate is therefore exempted). Equally, subject to certain exceptions, during the suspension period it is not possible to increase pressure on a debtor through a bankruptcy filing or summons (My debtor is known to be bankrupt, what can I do?).
Even if a climate of mutual trust will prevail in the context of solid and long-standing business relationships, , nevertheless a certain vigilance will still be required. Such vigilance will be even more important when starting a new business relationship (Which precautions should be taken prior to initiating new business relationships?).
In the context of an economic crisis, business risk analysis is crucial: it is important to check the solvency but also the liquidity of your business partners beforehand and to make sure that they have the capacity to pay their debts and/or to carry out the assignments that you have entrusted to them. In other words, it is best to avoid taking excessive risks. The current health crisis is undoubtedly weakening the legal framework which should safeguard and provide the framework for business agreements (see in this respect: What impact does Royal Decree No. 15 have on the recovery of my outstanding debt?).
An evaluation carried out at various levels is recommended before entering into a long-term business relationship,, together with an assessment of the assets of the new business partner. In other words, it must be possible to identify the assets that could be seized and to negotiate the provision of adequate securities (What securities may be effectively taken notwithstanding the limitations imposed by Royal Decree No. 15?).
During the current period where ” cash is king “, a service provider’s engagement terms should generally include a requirement to pay a higher proportion of the fees up-front on account. Goods may eventually have to be paid for in cash or by substantial down payments, with shortened payment terms. Regular monitoring of outstanding payments will allow the warning bell to be sounded quickly and prevent further losses.
What securities may be effectively taken notwithstanding the limitations imposed by Royal Decree No. 15?
As specified above, Royal Decree No. 15 prevents the attachment of the movable property of your business debtors. Consequently, a pledge entered on the pledge register will be temporarily ineffective until 17 June (which date may be prolonged).
Therefore, you should check whether your debtor’s real estate assets, whether owned by his or her business or private property, are not burdened by multi-rank mortgages. Unfortunately, such a situation is likely to occur.
Therefore, without a pledge, a mortgage, a surety or a co-debtor, how should you proceed? Certainly do not rely on the trust card because that is currently under pressure. Thus, it is essential to resort to more cautious vigilance and business cooperation measures (What precautions should be taken prior to initiating new business relationships?).
Furthermore, certain contracts could be considered in order to “retain ownership of your goods”, such as the agency contract and the consignment contract. They have the significant advantage that both the principal and the supplier of the consignment goods retain ownership of their products, provided that the terms of these contracts have been carefully drafted and are observed in practice (e.g. with regard to inventory control, covering the entry and the exit of the goods).
Finally, if you foresee a retention of title clause, either in your general terms and conditions or in your particular sales conditions, you will be able to recover your goods in the event of a problem, since such a clause stipulates that the ownership of the goods sold will only be transferred upon full payment of the price. Since this clause must have been mutually agreed in writing at the latest upon delivery, it is recommended to include it in your signed framework contract, in your estimates, purchase orders or invoices, prior to the actual delivery. As of January 1, 2018, such clause remains valid even when the goods covered by it are mixed with other goods or are transformed into other goods. Moreover, if the goods are re-sold, damaged or destroyed, your retention of title will be transferred to your debtors claim for payment of the price or his or her compensation claim (e.g. in case of an insurance payment).The registration of such a clause in the national pledge register is not compulsory, however, it remains possible, and even recommended (particularly, in order to identify the goods that are intended to be incorporated into an real property (bien immobilier) and to give them priority over mortgage creditors over the property in question).
Pursuant to Royal Decree No. 15, there is no need to rush to summon your debtor for bankruptcy, since he or she will be protected until 17 June 2020 (which date could be prolonged by a further legislative measure).
In this respect, the government is organising a temporary, generalised and, to some extent, automatic moratorium in order to protect any company in debt as a result of the COVID-19 crisis, which is in need of liquidity and provided that it was not already insolvent as at 18 March 2020. In fact, the business in question may not, be declared bankrupt on summons until 17 June 2020 (subject to any prolongation), nor may a legal person, be the subject of proceedings for judicial dissolution , except:
- on the initiative of the Public Prosecutor’s Office or of the provisional administrator appointed by the President of the Companies Court, or
- upon the debtor’s consent, who retains the right to file a petition for bankruptcy.
Nor, futhermore may the transfer under judicial authority of all or part of the activities of the concerned company be ordered. Moreover, the payment periods included in an already approved reorganisation plan are also extended until 17 June 2020 (subject to any further extensions of that date).
Finally, the obligation to file a bankruptcy petition is also suspended during the suspension period if the conditions are met because of the COVID-19 pandemic and its consequences.
Such suspension may nevertheless be lifted under quite restrictive conditions.
Caution in business has never been as required as it is today! Therefore, be vigilant in taking all the necessary measures to preserve your interests (What securities may be effectively taken notwithstanding the limitations imposed by Royal Decree No. 15?).
As an employee is bound by an employment contract, he or she has a legal obligation to perform his or her work with care, probity and conscience, at the agreed time and place and on the agreed conditions, in return for the remuneration paid by his or her employer.
The Ministerial Order of 23March 2020 provides that companies – regardless of their size – are obliged to organise telework for any function where this is possible without exception. Where telework is not possible (e.g. workers working on a production line), companies must respect social distancing (of 1m 50). This rule applies both in the performance of work and in the transport organised by the employer in the case of shuttles. If it is impossible for companies to comply with these obligations, they must close down.
If the authorities should find that the social distancing measures are not being complied with, the undertaking concerned would in the first instance be liable for a heavy fine and, in the event of non-compliance after a penalty has been imposed, to closure.
The above provisions do not apply to crucial sectors and essential services. However, the latter will have to ensure that the rules on social distancing are respected as far as possible.
The sectors considered to be ‘crucial’ and ‘essential’ are defined by a ministerial order of 23 March 2020, as:
- Taxi, passenger transport and logistics services
- Suppliers and transporters of fuel and combustibles, suppliers of firewood
- Trades and businesses involved in the food chain, agriculture and horticulture, fertilizer production and fisheries
- Production lines that cannot be stopped for technical reasons
- Packaging industry related to licensed activities
- Pharmacists and the pharmaceutical industry
- Emergency breakdown and repair services for vehicles
- Essential services related to urgent repairs involving safety or health risks
- Postal services
- Funeral homes and crematoria
- Inspection and control services
- Social secretariats
- Financial sector: banks, …, cash supply services, cash transportation, …
- International transport
How do I declare my employees on temporary unemployment (for force majeure event or economic reasons) ?
The procedures for introducing temporary unemployment have been greatly simplified for both employers and employees.
The employer must indicate “force majeure” as the reason for temporary unemployment in the SRD scenario 5 (electronic declaration of social risk in which the employer mentions the number of days during which the employee is temporarily unemployed).
This declaration is made by the social secretariat (which will mention the code “nature of the day” 5.4 and “coronavirus” as grounds), this is the equivalent of the mandatory communication.
It is consequently no longer necessary to make a specific communication of temporary unemployment due to force majeure to the competent NEO unemployment department.
This procedure is valid whether the employer has already sent a communication of temporary unemployment for force majeure event for the period as from 13.03.2020 or whether he has sent a communication of temporary unemployment for economic reasons.
The employer who had initially sent a notice of temporary unemployment for economic reasons can thus switch to the temporary unemployment scheme for force majeure (reason: “coronavirus”) without having to complete any further formalities, even if certain employees can still work or it is still possible to work during certain days.
If the employer indicates “economic reasons” (and not “coronavirus”) as the reason for temporary unemployment in the SRD scenario 5 (mentioning the code “nature of the day” 5.1), then the existing procedures remain applicable (communication of temporary unemployment planned for economic reasons, communication of the first actual day of unemployment, compulsory work week, etc.).
The employer is obliged to introduce a SRD scenario 5 as soon as possible (on the basis of which the NEO can also determine the amount of benefits for the temporarily unemployed). The employer does not have to wait until the end of the month for this, but instead has to submit it in the course of the month, as soon as all the data up to the end of the month are known.
Within the period from 01.03.2020 to 30.06.2020 inclusive, the employer don’t issue a C3.2A control card to workers placed on temporary unemployment, regardless of the reason for the temporary unemployment.
No. In case of proven force majeure – being the impossibility to perform the work due to external and unforeseeable circumstances – or when the conditions for economic unemployment are met, the employment contract is suspended, in view of the impossibility to perform the work provided for in the contract. The employees will not receive any remuneration from their employer, but will receive unemployment benefits, up to 70% of their gross remuneration, capped at EUR 2,754.76 per month.
In the context of temporary unemployment, the employer is under no obligation to pay (unless otherwise provided for at sectoral level) a supplement to the temporary unemployment benefits granted by the NEO.
In order to compensate for the loss of income, the employer may voluntarily decide to pay such a supplement in addition to the unemployment benefit (calculated at 70% of the employee’s pay, capped at €2,754.76).
On April 2, 2020, the NSSO confirmed in its instructions that it is possible to grant a supplement without having to pay contributions (neither ordinary social security contributions nor special contributions within the framework of the Decava regime) according to the so-called “supplement to social benefits” system referred to in art. 2, §3 of the law of 12 April 1965 on the protection of remuneration, under the following conditions:
- the employee cannot perceive a “net” income from temporary unemployment that is higher than the income usually received when he or she is effectively employed.
« Net » means the gross taxable remuneration (i.e. the gross remuneration reduced by the personal social security contributions of 13.07%, without taking into account any withholding tax that may have been deducted).
Therefore, it is necessary to use the respective gross taxable amounts as a starting point to subsequently cumulate the taxable remuneration paid by the employer (i.e. gross remuneration minus 13.07% in the context of temporary partial unemployment) with the unemployment benefit (without taking into account the 26.75% withholding tax), and possible supplements (such as the EUR 5.63 or supplements from an Existence Security Fund, if applicable at sector level) as a basis for comparison with the ordinary taxable remuneration of the employee. Hence, only the remuneration on which the social security contributions are due is taken into account; the supplements cannot include benefits such as meal vouchers, …. For employees with variable remuneration, the average remuneration of the previous months must be taken into account.
- the amount of the supplement may not differ between employees in the same group (“same lump sum” or “same percentage of remuneration” for all employees/workers/trade representatives/…), taking into account that employees with low wages may not receive more than their usual remuneration either (see supra).
Under the aforementioned conditions, the supplement paid by the employer is not subject to social security deductions ( neither employer’s nor employee’s contributions need to be deducted!) and is subject to a fixed withholding tax of 26.75%.
Consequently, on a supplementary payment of €1,000 from the employer, the employee will receive a net amount of €732.5. The employee should be aware of his average tax rate and the risk of having to pay additional tax following his 2021 tax year (if this average rate is higher than 26.75%).
This supplement must be mentioned on the salary statement but not on the DMFA (since it does not constitute a remuneration in the sense of social security).
It is recommended to conclude an agreement (individual or collective) to guarantee the nature of ” supplement to social benefits “, to avoid any discrimination and thus the risk of requalification as professional income by the NSSO.
The NSSO stresses the current difficulty for employers relating to the fact that the amount of temporary unemployment benefits to be received by the employees is unknown at the present stage (due to a bottleneck of requests at the level of the NSSO and the trade unions). Thus, an administrative tolerance is in place: while waiting for the final amounts of unemployment benefits to be known, it is authorised, if the supplements granted for the month of March turn out to be too high, to offset this by reducing the supplements for the first following months.
Can I dismiss a worker placed on temporary unemployment for reasons of force majeure ? Which consequences on the notice period ?
Pursuant to a well-established case law developed by the Belgian Court of Cassation, the notice period given by the employer is only suspended in the cases explicitly provided for by law (see in particular those set out in articles 38 §2 and 38 bis of the Act of 3 July 1978 relating to employment contracts); in the absence of a legal text, the notice period normally continues to run (Cass. 7 June 1985, J.T.T., 1985, p. 219; Cass. 10 June 1985, J.T.T., 1986, p. 243).
And yet, temporary force majeure event (referred to in article 26 of the Act of 3 July 1978) is not a cause for suspension of the contract having the effect of suspending the notice period, since it is not referred to in article 38, §1er, or 38 bis of the Act of 3 July 1978 (which only applies to annual holidays (art. 28, 1°), maternity rest and prophylactic leave (art. 28, 2°), preventive detention (art. 28, 5°) and the period of incapacity for an occupational disease or accident at work (art. 31)).
Hence, according to the current rules, in the event of a dismissal with prior notice of a worker placed on temporary unemployment for reasons of force majeure, the consequence would be that:
- The employment contract is suspended during the period of temporary unemployment, releasing the employer from his obligation of paying the agreed remuneration during this period;
- (…) without the notice period being suspended.
Therefore, any employer who dismissed with prior notice due to legitimate reasons (e.g. reasons related to the functioning of the company,…), shall be exempted from paying the remuneration for the notice period which is covered by the temporary unemployment regime due to force majeure (this temporary unemployment regime being accepted by the NEO until 30 June 2020, as it stands now).
Obviously, the question will be raised as to whether the dismissal is not manifestly unreasonable and/or abusive considering the fact that it takes place during the period of temporary unemployment and that the worker is deprived of a portion of his remuneration (unemployment benefits being calculated on the basis of 70% of a capped gross remuneration) normally due at 100% in the period of prior notice, to be paid by the employer (and not by the NEO). The employer should therefore proceed cautiously with regard to the grounds for dismissal.
Furthermore, it will be appropriate to await the publication (expected in the next few days) of the Royal Decree of special powers amending the Act of 4 December 2007 concerning social elections, to see whether the NLC’s (National Labour Council) advice to suspend the blackout period until the new day X-36 (i.e. during the month of August 2020), has been followed by the government, before proceeding with such dismissals.
On April 23, 2020, the law “to regulate suspension of the procedure for the 2020 social elections, because of the coronavirus COVID-19 pandemic” was adopted by the Belgian Parliament.
The law follows the opinion of the National Labour Council delivered on 24 March and suspends the electoral procedure with retroactive effect to 17 March 2020.
Here are certain points of attention for the organization of your social elections.
How will future meetings of the work council and the committee for protection and prevention at work be organized ?
The Act of 1948 (for work council) and 1996 (for the Committe) require meetings to be held at the company’s head office with no special provision for videoconferencing. It is therefore advisable to check in your internal regulations whether or not such arrangements are provided for. If not, you should agree with the workers’ representative organisations to adapt the internal regulations in order to allow meetings to be held by visioconference. We can provide you with an draft of such an agreement. Of course, subject to the respect of social distancing measures, meetings can always be held at the company’s head office.
IP & Unfair market practices
What about intellectual property infringement proceedings and unfair market practices in this time of crisis?
The different courts and tribunals in Belgium have taken more or less the same measures.
Seizure procedures, interlocutory and injunction proceedings are generally used in the fight against infringements of intellectual property rights.
Seizures procedures concerning counterfeiting are usually conducted on a purely written basis.
The very urgent summary procedure will continue to be pleaded in the physical presence of counsel. The position is less clear for cease and desist procedures (“procedures de cessation”).
In any event, the existing possibility of using written proceedings, which in normal circumstances is always possible upon agreement of the parties, will be applied more frequently. The courts will force the parties use written proceedings if they consider it is not necessary to hear oral arguments.
On Monday 16 March 2020, the Executive Director of the EUIPO issued a decision that affects all parties before the Office and extends all time limits for EU trade marks and designs expiring between 9 March 2020 and 30 April 2020 to 1 May 2020. Similarly, the EPO has announced that all deadlines for patent matters are extended until 17 April 2020.
By way of example:
• An EU trade mark that was due for renewal on 20 March 2020 can now be renewed by filing a valid request before 1 May 2020
• An EU trade mark application that was published for opposition after 9 January 2020 can now be opposed by filing a notice of opposition before 1 May 2020
• All evidence deadlines in EUIPO proceedings will be extended until 1 May 2020, and
• Renewal fees for all EU patents due between 15 March 2020 and 17 April 2020 can be validly paid before 17 April 2020.
Family and Estate Planning
How should split households organise themselves to accommodate their child(ren) in the event of a (semi) complete lockdown?
The answer is a significant one.
It emerges from our Prime Minister’s statement of Tuesday, 17 March 2020 that the movement of children between their separated parents is considered “strictly necessary” and that the parents should continue to make the necessary arrangements. However, if one of the children or one of the parents becomes infected, the authorities require that all contacts should cease.
Therefore, common sense and the interests of children and families will decide how the restrictions decided on 17 March are to be applied until at least 5 April. You will therefore be able to enjoy your children’s company to the full, in the manner agreed between you in normal times. We will however remain attentive for any more restrictive changes adopted in this respect.
Were you required to go to the notary for a meeting or to sign a notarial deed (authentic will, donation, marriage contract, sale/purchase deed, delivery of legacies, …) before April 5th?
Untill 20 April, all acts that should have been signed before 5 April are postponed with the sole exception of acts of extreme urgency. This applies to wills or other donations for persons at the end of life, procedures to be carried out before binding tax deadlines and, provided that a dispensation has not been granted, situations with significant financial consequences for the parties. In the latter cases, security measures will be required: only the notary will be present to collect the signature (a second notary may be contacted by video conference) and the parties will not be present at the same time in the deed room.
Furthermore, private contracts such as preliminary agreements for the purchase of real-estatewill no longer be signed in the office but by email or by post. Other appointments and meetings (such meetings for the administration – distribution of an estate) will also be postponed. New dates will be proposed by the notary’s office in consultation with the parties and their advisors. Please do not hesitate to contact them to find out more.
As from 20 April, notary offices will have the possibility to execute all deeds, provided that physical contact is avoided as much as possible and the necessary precautions are taken regarding social distancing.
At present it is even not necessary anymore to go to the notary to sign authentic deeds thanks to the digital power of attorney which will arrive shortly and which will allow citizens to sign notarial deeds remotely, free of charge (during the corona regulations).
How will legal proceedings unfold during the Corona crisis? Negotiation and mediation are alternatives.
Awareness of the fact that legal proceedings are not always the perfect remedy in the event of a conflict has been growing for a long time: legal proceedings take time, costs can be high, the final outcome is not always predictable, the parties often turn their backs on each other forever. In accordance with the mandatory guidelines issued by the College of Courts and Tribunals (het College van Hoven en Rechtbanken / le Collège des Cours et Tribunaux) during the current crisis, only urgent cases and those which can be dealt with using written procedures will proceed. Moreover, with the exception of urgent cases, it is not now, and at least until 19 April, possible to introduce new cases. Thus, the Corona virus will also be a disruptive factor in both ongoing and future litigation.
In the context of health and economic crisis, negotiation and mediation are alternative forms of conflict resolution that certainly deserve special attention. We are after all becoming much more interdependent, and our joint efforts will be required to make progress in future. Negotiation or mediation, in which the interests of each party are taken into account in order to find solutions that provide added value for all without compromising the potential for future cooperation, are certainly worth considering.
Should you wish to carry out such an exercise of reflection on a conflict situation in which you are involved, or are likely to be involved, we are ready to assist you.
The judicial institutions, the Council of State, the administrative jurisdictions and the related professions (law courts, the judiciary and penitentiary institutions, youth protection institutions, electronic surveillance, legal experts, judicial officers, court personnel, translators/interpreters, lawyers) are essential services within the meaning of the Ministerial Order of 18 March 2020.
The services of the Justice remain open.
You had a hearing scheduled in the next few weeks, see what is the current situation regarding the holding of this one, via the orders taken by the various jurisdictions: https://avocats.be/fr/coronavirus.
We recommend, in appropriate cases, the use of the written procedure, as provided for in article 755 of the Judicial Code.
A Royal Decree concerning the extension of limitation periods and the other periods for bringing legal proceedings, as well as permitting extensions of time for procedural deadlines and written pleadings before the courts and tribunals, was published in the Belgian Official Gazette on Friday 9 April.
Even if neither the courts nor the lawyers concerned have made a request to extend the deadlines, or to provide for deliberation on cases without oral argument, during the lockdown period; we strongly recommend that you consult your counsel about any proceedings currently underway that concern you, so that you can agree a joint approach.
The proper administration of justice requires respect for the principles of impartiality, independence, the individual’s rights of defence and above all the transparency of proceedings and pleadings. The Royal Decree does not necessarily respect all these principles so that each situation must be assessed on a case-by-case basis with your counsel.
This general memorandum may not deal with every important topic or cover all important aspects of the subject matter. It is not intended, and should not be used, as a substitute for seeking appropriate legal advice on specific questions.