Last modified:Thursday 31 October 2019
Prevention is better than cure. This is why it is important to be able to detect any indication of a struggling company as soon as possible.
The authorities actively monitor struggling companies in order to offer early support and to intervene preventively. This role is played by accountants and the commercial investigation chambers.
The commercial court is not just responsible for making rulings, but also plays an active role in monitoring struggling companies. This is done using warning signs, known as "indicators", which indicate the possible presence of a (financial) problem.
More specifically, these are default judgements or those relating to uncontested unpaid invoices, as well as judgements concerning a commercial lease which has been terminated or not renewed or even judgements where a deadline has been placed on the company's management. At regular intervals, the authorities send a list of all individuals and companies late with payments concerning taxes, VAT or social security contributions. The same principle applies to disputes relating to bills of exchange.
All this information (and even more besides) is provided to the commercial investigation chamber, which performs an assessment based on this data (the famous "indicators") if it considers them to be sufficiently concerning. One indication is usually not enough.
In practice, this means that at any moment you may receive a summons to attend the commercial court before the commercial investigation chamber. However, the purpose of the procedure is to make the entrepreneur aware of the problems he is facing and to help him implement the appropriate measures while considering the interests of the creditors. You must appear personally and may be assisted by a lawyer or an accountant, for example. The judge may demand or request the presentation of certain documents. He may even visit the private residence or headquarters of the debtor, although this is fairly exceptional.
At the end of the enquiry, the chamber can make several different decisions:
close the enquiry, and provisionally or definitively close your case;
request additional information (e.g. an intermediate accounting situation or your final annual accounts) to be able to make a sound judgement;
return your file to the royal prosecutor in the context of a possible bankruptcy if he is of the opinion that the bankruptcy conditions are met, or in order to initiate legal dissolution.
- direct you towards the judicial reorganisation procedure to obtain a payment grace period towards your creditors and realise the hope of rescuing the company.