Companies eligible to benefit from the protection
The temporary moratorium only applies to energy-intensive companies in difficulty, these are companies covered by Book XX of the Code of Economic Law whose risk of discontinuity is mainly due to the increase in energy prices between 24 February 2022 and 31 December 2022. The energy sources which are taken into account are gas, electricity, coal, wood, and petroleum.
A company is only eligible to benefit from the temporary moratorium if the following cumulative conditions are met (hereafter the “Eligible Company”):
- the company was not in a situation of cessation of payments on 24 February 2022;
- the company’s purchase of energy products and electricity represented at least 3% of the added value for calendar year 2021 (added value being defined as the total turnover subject to VAT, less the total purchases subject to VAT);
- in the three months before 3 November 2022, the company has paid an energy price that is at least double the average energy price paid between 1 January 2021 and 30 September 2021;
- at the moment the company invokes the protection measure(s), it does not have any outstanding and due tax or social security debts, with the exception of debts that are subject to a payment plan (excluding tax debts of EUR 1,500 or less and disputed debts); and
- the company was incorporated before 24 February 2022.
The temporary moratorium consists of the following protection measures.
Protection against attachments on movable assets
If an attachment is laid on movable assets for debts incurred after 24 February 2022 for the purchase of energy products, the Eligible Company can request the court to lift the attachment provided it demonstrates all conditions set out above are met. Attachments on immovable assets (onroerend beslag / saisie immobilière), however, remain possible.
The temporary moratorium does not release Eligible Companies from the payment of their debts for the purchase of energy products as they fall due. Interests will therefore continue to accrue on those debts, however at the statutory interest rate (currently 1.5%), unless the contractually agreed interest rate is lower. In addition, a contractual damages clause (schadebeding / clause pénale) will be without effect for the non-payment or the late payment of energy debts.
Protection against bankruptcy and judicial dissolution
An Eligible Company cannot be declared bankrupt or be judicially dissolved, unless at the request of the public prosecutor or a provisional administrator appointed by the court, following a referral of the chamber for enterprises in difficulties, or with the consent of the company itself. In addition, an Eligible Company who is in a state of bankruptcy cannot be summoned in forced transfer of its activities in the framework of judicial reorganisation proceedings (gerechtelijke reorganistie door overdracht onder gerechtelijk gezag / reorganisation judiciaire par transfert d’entreprise sous autorité judicaire).
A company summoned in bankruptcy or dissolution at the initiative of a person other than the public prosecutor or a provisional administrator (in practice this will mainly mean by a creditor), will have a period of minimum 15 days from the preliminary court hearing (with possible court’s extension) to provide evidence that it is an Eligible Company that must benefit from the temporary moratorium. If the debtor does not appear at the court’s hearing, it will be presumed not to be an energy-intensive undertaking in difficulty.
Also, the statutory obligation for an Eligible Company to file for bankruptcy is suspended provided the conditions for bankruptcy are met due to the increase in energy prices. The suspension of the obligation to file for bankruptcy also implies that the criminal sanctions applicable to directors for late filings are not applicable.
Entry into force
The temporary moratorium entered into force on 3 November 2022 and will apply until 31 December 2022 with possible adjustment and extensions.
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