“Order for payment” procedures - Belgium
TABLE OF CONTENTS
- 1 Existence of an order for payment procedure
- 1.1 Scope of procedure
- 1.1.1 What types of claims are eligible (e.g. only pecuniary claims, only contractual claims etc.)?
- 1.1.2 Is there an upper limit regarding the value of the claim?
- 1.1.3 Is the use of that procedure optional or obligatory?
- 1.1.4 Is the procedure available if the defendant lives in another Member State or in a third country?
- 1.2 Competent court
- 1.3 Formal requirements
- 1.3.1 Is the use of a standardised form obligatory? (if yes, where can that form be obtained?)
- 1.3.2 Is representation by a lawyer required?
- 1.3.3 In how much detail do I have to describe the reason for the claim?
- 1.3.4 Is it necessary to present written evidence of the claim at issue? If yes, which documents are admissible as proof?
- 1.4 Rejection of application
- 1.5 Appeal
- 1.6 Statement of opposition
- 1.7 Effect of statement of opposition
- 1.8 Effect of lack of statement of opposition
- 1.1 Scope of procedure
1 Existence of an order for payment procedure
Belgium operates a system of expedited dispensation of justice enabling payment to be ordered. The purpose of this simple procedure, described in Sections 1338 to 1344 inclusive of the Belgian Judicial Code, is to obtain payment of relatively small amounts in certain types of cases.
The legislation regarding the expedited procedure is as follows: see the website of the Federal Public Service for Justice (Federale Overheidsdienst Justitie/Service Public Justice) :
- Click on ‘Belgische Wetgeving’ or ‘Législation belge’ (Belgian legislation)
- Click on ‘Gerechtelijk Wetboek’ or ‘Code judiciaire’ (Judicial Code) in the section called ‘Juridische Aard’ or ‘Nature juridique’ (Type of Law).
- In the section called ‘Woorden’ or ‘Mot(s)’ (Words), enter 664
- Click on “Zoeken op’ or ‘Chercher sur’ (Search) and then on “Lijst’ or ‘Liste’ (List).
- Click on ‘Detail’ or ‘Détail’ (Details).
1.1 Scope of procedure
1.1.1 What types of claims are eligible (e.g. only pecuniary claims, only contractual claims etc.)?
Only pecuniary claims are eligible.
1.1.2 Is there an upper limit regarding the value of the claim?
Section 1338 of the Belgian Judicial Code stipulates that only claims relating to the payment of an established debt of an amount of money not exceeding €1 860 are eligible for this procedure.
1.1.3 Is the use of that procedure optional or obligatory?
The use of the procedure is entirely voluntary.
No. Section 1344 of the Belgian Judicial Code stipulates that the rules regarding the expedited procedure apply in the event that the debtor is resident or has a place of abode in Belgium.
1.2 Competent court
This procedure may be used before the Civil Magistrate's Court or the Police Court, on condition that the claim falls within the jurisdiction of one or the other. (For details of the areas of jurisdiction of the Civil Magistrate's Court and Police Court, please see the factsheet on ‘judicial systems’).
1.3 Formal requirements
1.3.1 Is the use of a standardised form obligatory? (if yes, where can that form be obtained?)
There is no standard form that is used in order to initiate proceedings. The law does however lay down a number of conditions regarding the information that is stated on the summons to pay and on the application in which the claim is placed before the Court.
Before having recourse to a court, the claimant must send the debtor a demand for payment. This obligation is laid down under Section 1339 of the Belgian Judicial Code. The demand for payment may take the form either of a bailiff's writ that is served upon the debtor, or of a letter sent by registered mail with proof of receipt. Section 1339 also stipulates the information to be included in the demand. so as to ensure it is legally valid. A failure to include the relevant information makes the demand null and void. That information is as follows:
- A reproduction of the Sections from the chapter of the Belgian Judicial Code providing for the expedited procedure;
- A demand requiring payment within fifteen days after the letter was sent or from the date on which it was served on the debtor.
- The amount being claimed.
- The court that will handle the claim, in the event that the debtor fails to effect payment.
Within 15 days of the date on which the 15-day period stated in the demand expires, the claim is submitted to the court in the form of an application drawn up in duplicate. Section 1340 of the Judicial Code sets out the items that must be included in the application. It must state:
- The day, month and year;
- The surname, forename, profession and place of residence of the claimant, and, if applicable, the surname, forename, place of residence and capacity of his/her legal representatives;
- The object of the claim and a detailed statement of the amount being claimed, including an itemised list of the items that form part of the claim and the grounds on which this is based;
- The designation of the court that is required to take cognisance of the claim;
- The signature of the lawyer and of the party concerned.
At the discretion of the claimant, the applicant may also indicate the reasons why he or she opposes the granting of a deferment of payment.
The application must be accompanied by:
- A photocopy of the document on which the claim is based;
- or a copy of the bailiff's writ or a copy of the registered letter and the proof of receipt, or the original letter, accompanied by evidence that the recipient refused the letter or failed to collect it from the post office, together with a declaration stating that the debtor is registered at the address listed in the population register.
1.3.2 Is representation by a lawyer required?
One of the items that form a required part of the application is the signature of a lawyer. Section 1342 of the Judicial Code also stipulates that a copy of the decision by the court will be sent to the claimant’s lawyer by ordinary mail. These are the only legal stipulations that require a claimant to have recourse to a lawyer.
1.3.3 In how much detail do I have to describe the reason for the claim?
The application must contain a reasonable level of detail. Section 1340(1)(1) of the Judicial Code stipulates that the application must state the object of the claim and provide a detailed statement of the amount being claimed, including an itemised list of the items that form part of the claim and the grounds on which it is based.
Yes. According to Section 1338, the claim must be substantiated by a written document drawn up by the debtor. That document need not, however, contain an acknowledgement of the debt.
1.4 Rejection of application
Within fifteen days of the date on which the application is submitted, the court will grant the application or will reject it, in the form of a decision issued by the pre-trial division (chambre du conseil/raadkamer). The court may grant a deferment of payment or partially uphold the claim (see Section 1342 of the Judicial Code). The court will have access to information regarding the various components of the debt and may decide to reject certain of them. This enables it to take into account any payments that may have been made in the meantime. The court may reject the claim outright, in the event that the conditions have not been fulfilled (see Sections 1338 and 1344 of the Judicial Code).
In the event that the court upholds the application either wholly or in part, its decision has the same effect as a judgment given in default of appearance.
The claimant must then serve the decision handed down by the court upon the debtor. In view of the fact that a court judgment upholding the claimant’s application in whole or in part has the same effect as a default judgment, it must be served on the debtor within a period of one year: otherwise it will be deemed to be non-existent (see Section 806 of the Judicial Code).
Section 1343(2) of the Judicial Code stipulates that in order to be legally valid, the memorandum of service of this decision must contain the following:
- A copy of the application;
- A statement of the period within which the debtor may lodge an objection;
- Details of the court to which that objection must be submitted, together with the formalities to be fulfilled in that regard.
The debtor will also be warned that if he or she does not act by the stated deadline, all available legal remedies may be used in order to require him or her to pay the amounts in question. A failure to include such a warning renders the memorandum of service null and void.
The decision is not provisionally enforceable (see Section 1399(2) of the Belgian Judicial Code). The execution of the decision is therefore suspended during the period in which an objection may be submitted or an appeal initiated. The decision may however be used as grounds for precautionary attachment of property.
In the event that the debtor does not submit an objection or does not initiate an appeal within the deadline specified, the decision will become final.
Appeal by the claimant
The possibilities for the claimant to appeal are laid down in Section 1343(4) of the Judicial Code. The claimant cannot bring a full appeal (appel/beroep) against a rejection or partial upholding of the application. Claimants can, however, bring the claim forward again by following the ordinary procedure (not the expedited procedure). If the claim is partially upheld and the claimant wishes to bring proceedings by the ordinary procedure, the claimant must not yet have served the decision on the debtor.
Objection or appeal by the debtor
The debtor may oppose the decision in one of two ways: by bringing an appeal against the decision, or by registering an objection (the court’s decision has the effect of a default judgment if the court wholly or partially upholds the application of the claimant: see Section 1343(1) of the Judicial Code). In both cases, the deadline for initiating legal proceedings is one month, commencing from the date on which the judgment is served (see Sections 1048 and 1051 of the Belgian Judicial Code). These deadlines will be extended in the event that one of the parties is not resident in Belgium, or has no place of abode or address for service domicile in the country.
The rules of objection and appeal as laid down under civil law have then to be followed, subject to one exception which is laid down in Section 1343(3)(2) of the Belgian Judicial Code: contrary to Section 1047 (which requires a bailiff's writ to be served), the objection may be submitted in the form of an application, lodged with the court registry, in as many copies as are equivalent to the number of parties and lawyers involved. The clerk of the court will then inform the claimant and his or her lawyer of the objection, by sending a court letter.
The application (of objection) must state the items listed below. Failure to do so renders it null and void.
- The day, month and year;
- The surname, forename, profession and place of residence of the person submitting the objection;
- The surname, forename and place of residence of the claimants and the name of their his lawyer;
- The disputed decision;
- The grounds relied upon by the objecting party.
The parties are then summoned by the clerk to the court to appear at the hearing scheduled by the court.
1.6 Statement of opposition
Belgian law does not expressly provide a facility to submit a statement of opposition to the claim.
The debtor can send information to the Civil Magistrate's Court, but this will not change the nature of the default judgment.
1.7 Effect of statement of opposition
As stated above, there is no facility to submit a statement of opposition. The expedited procedure will continue to take its course whether the debtor opposes the decision or not.
1.8 Effect of lack of statement of opposition
See the answer to question 1.7.
1.8.1 What needs to be done in order to obtain an enforceable decision?
1.8.2 Is this decision final or is there still a possibility for the defendant to appeal against that decision?
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Last update: 18/07/2014