Since 1st November 2015, a vast reform of the Belgian civil procedure has been in force. One of the most important modifications is that the provisional enforcement of judgements has become the principle instead of the exception.
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Provisional enforcement of judgements : the exception becomes the principle
Let’s start with an example:
Firm XYZ dismisses an employee for serious cause. The employee contests his dismissal for serious cause before the employment tribunal. At first instance, the employee wins the case, which means that the employer is ordered to pay him an indemnity in lieu of notice.
- Situation before 1st November 2015
Since the appeal suspended the enforcement of the first instance judgement, the employee would not have been able to proceed to the enforcement of the judgment if the employer had decided to appeal the judgement. In principle, it was necessary to wait for the definitive decision of the labor court to be able to enforce the decision. As a result, if an employer lost at the first instance, he had not to pay any indemnity to a worker straight away.
- Situation since 1st November 2015
The employee can automatically enforce the initial judgement, even if the employer appeals the judgement. The appeal no longer suspends the enforcement of the judgment. As a result, the employer will have to pay an indemnity in lieu of notice, even if he does not agree with the initial judgement and he has decided to appeal it.
- Consequences for employers
First of all, if they lose the trial, the employers will have to pay an indemnity straight after the judgement and not at the end of the procedure before the labor court. Companies will have to declare the payment amount as a cost earlier in their budget.
However what is even more damaging is if the employer wins the appeal, there is the risk that he cannot recover the amount he paid to the worker in the case of the worker’s insolvency. This situation is unfortunately not rare and there is nothing that the employer can do if no bank account or properties can be seized.
- Solution for employers
A legal mechanism (called “cantonnement/kantonnement”) is still allowed and offers a solution.
This mechanism allows the debtor (in our example, the employer at the first instance) to avoid the provisional enforcement of the judgement by paying the owed amount (including interest and expenses) to a bailiff or the seizure judge while waiting for the definitive decision of the labor court.
This mechanism is interesting for the following reasons:
- except for a few limited situations, the judge cannot refuse the use of this mechanism which constitutes a right ;
- the interest ceases to accrue ;
- if the employer wins on appeal, he is sure that he will be able to recover the amount that he paid even if he is not the only creditor (concursus creditorum), since the debt is “out of the concursus creditorum”.
