Faq

The business mediator is a professional (lawyer, accountant, etc.) appointed by the president of the Business Court at the request of a entrepreneur facing problems.

The appointment of such a mediator presupposes the filing of a request in which the entrepreneur can propose the name of the company mediator, the terms of his mission, the duration of the latter and the latter's fees.

The main advantages of such a procedure are its speed, discretion and low cost. Indeed, an extremely short request will suffice for a mediator to be appointed very quickly (a few hours or even a few days). In addition, his appointment is not published.

The mission of the company mediator will be stated in the court order appointing him on the basis of the petition  of the business in difficulty.

In general, his mission will be to assist the company in difficulty to negotiate with the creditors in order to find agreements with them outside or within the framework of a PJR which can be filed later.

The flat-rate cost of filing the request for the appointment of a company mediator varies between 75 and 250 euros depending on the company requesting it.

The main positive effect of the PJR give additional chances to a company in cash flow difficulties so that it can restructure itself by proposing an amicable agreement, a collective agreement or a business divestiture.

We must not hide that the main negative effect of the PJR is the publicity given to this procedure which too often leads to a reflex of mistrust of suppliers and creditors. You have to manage this risk and sometimes not hesitate to warn on your own initiative certain strategic creditors such as bankers

Whatever the objective of the PJR, the court will set a suspension period for payment of maximum 6 months, renewable maximum twice.

As soon as the request is filed, a delegated judge will be appointed and the court will rule on the admissibility of the request no later than 15 days after it is filed.

If the PJR aims for a collective agreement, the payment plan to creditors may last a maximum of 5 years from the judgment authorizing the suspension.

If the PRJ aims at amicable agreements or the transfer of assets or activities, these solutions must be found during the period of suspension.

The response to be provided is different depending on the objectives pursued:

If the aim was to find individual agreements with certain creditors, the PJR procedure will end with a judgment which will record them;

If the goal was to obtain a collective agreement, in addition to the positive vote of more than half of the creditors, it will be necessary to obtain a judgment of approval from the court. The court may refuse the homologation when it considers that economic public order is not respected (competition problems, procedural irregularity, etc.);

If the aim was to transfer the business, the proceedings will end with a judgment in which the court will choose the transferee based on the offer (s) presented to it.

The success rate of the procedure depends on the goal you set for yourself. Overall it is regrettable that the success rate is not high (less than 50%). This relative failure is due on the one hand to the fact that the debtor in difficulty files a request for PJR too late and on the other hand to the fact that after the sale of assets and activities, there is necessarily bankruptcy or liquidation of your business (It has sold its assets and remain with its debts). It is therefore important to think about PJR when the first difficulties arise in your company.

It will be necessary to check whether the amount of your claim has been included in the creditor list filed by the company in distress. If this is not the case, it will be necessary to intervene with the court so that your claim is taken over correctly. If you have specific remarks to make about your client, it is also possible to intervene in the proceedings by making your observations.

Assuming you have a contract with a company, it will not be possible to terminate on the sole basis that a PJR request has been filed. On the other hand, the law wanted to favor the business partners of a debtor since for all the debts created during the suspension there is a kind of priority right which will allow these partners to be paid in priority.

First, you will need to write to the company in PJR to ask them to change their figures. As a second step, if the company refuses, a special procedure is provided in order to solve this matter quickly in the competent enterprise court.

As creditor you have the right to file a request for revocation of the plan by the company court, if the company in distress does not comply with the court-approved payment plan. In most cases this will result in the bankruptcy of the company in distress.

The admission requirements are broad since you can file a PJR even when conditions for bankruptcy are fulfilled. The two most important restrictions are on the one hand the prohibition to file a PJR if one has recently been filed (in the three years preceding) and on the other hand the obligation to file 11 annexes to the request by which we ask for the PJR.

The PRJ starts with the filing of a request which results in the appointment of a delegated judge. The latter will follow the company throughout the proceedings but will first report to the court on the admissibility of the petition at the hearing to be held within 15 days of the filing thereof. If the judgment is favourable, a suspension of payment will be granted, the creditors will be informed and the company in distress will ensure, depending on the objective proposed in the request,

1. To find individual agreements with its creditors, if there are not to many
2. To present a repayment plan (called a reorganization plan) which must receive the approval of the majority of creditors
3. To appoint a legal representative who will ensure the sale of all or part of the business or assets of the company in distress while saving as many jobs as possible

If your company encounters insurmountable difficulties, it is better to think about liquidating it voluntarily. The advantage of such liquidation is on the one hand the discretion of such a measure and on the other hand greater flexibility. Even if its regime is similar to that of bankruptcy, it offers greater flexibility, the liquidator appointed by the company to replace the management body, is only accountable to the company and not to the court (unlike the bankruptcy trustee appointed by the court).

Any debtor is required, within one month of the cessation of his payments, to file a declaration at the competent court. Otherwise, it risks engaging the administrator (s), personal liability in their capacity as agent.

The declaration of bankruptcy is made online on the website: https://www.regsol.be/. You can request our assistance and contact us using the form.

1 ° the report of its affairs or a note indicating the reasons which prevent it from filing it;

2 ° a balance sheet containing a statement of assets and liabilities as well as the listing and valuation of all movable and immovable property of the debtor, the statement of claims and debts, the table of profits and losses, the last account duly approved and the expenditure table; it must be certified true, dated and signed by the debtor.

3 ° data relating to the location of the accounts, indicating whether they are kept by third parties; if this is the case, the contact details of these third parties and the means to have access to this accounting;

4 ° if he employs or has employed personnel during the last eighteen months, the personnel register, the individual account provided for in Article 4, § 1, 2 °, of Royal Decree no.5 of 23 October 1978 relating to the keeping of social documents, both for the past calendar year and for the current calendar year, data relating to the social secretariat and social funds to which the company is affiliated, the identity of members of the committee for prevention and safety at work and members of the union delegation, as well as, if applicable, the access code that the National Social Security Office has assigned to the company and which allows consult the electronic personnel register and provide access to other necessary identification data;

5 ° the list mentioning the name and address of customers and suppliers;

6 ° the list mentioning the name and address of the natural persons who, free of charge, have taken personal security for the company;

7 ° the list of partners if the debtor is a company referred to in [2 Article I.1, paragraph 1, 1 °, c)] 2, of this book, or a legal person whose partners have a responsibility unlimited, as well as proof that the partners have been informed.

Both in case of a declaration/admission as in case of a bankruptcy request, the company court may suspend its decision for a period of fifteen days during which the debtor can submit a request for judicial reorganization or during which the public prosecutor, a creditor or any person having an interest in acquiring all or part of the assets or activities of the debtor, may file a request for judicial reorganization by transfer under judicial authority

The only thing to do is then to file a declaration of claims with the appointed trustee in the context of the bankruptcy.