[Le point sur...] Access to assets for efficient enforcement: Legal and practical analysis in Belgium

Keywords: enforcement, judicial officers• European Convention on Human rights • access to assets • register and database

This article examines the crucial issue of access to debtor information in the context of enforcement of judicial decisions in Belgium. The efficiency of the judicial officers depends on a thorough understanding of the debtor's assets, essential for compliance with Article 6 of the European Convention on Human Rights. Belgium provides effective access to asset data through various registers such as the National Registry, the Foreigners Registry, the Crossroads Bank for Enterprises, and others. However, accessing bank accounts remains complex. Nevertheless, Belgium maintains privileged access to asset data, emphasizing the importance of this mission for judicial officers as guarantors of judicial decision enforcement.

The crucial question of access to debtor assets inevitably arises in the context of the enforcement of legal decisions. The effectiveness of the judicial officer in his recovery mission largely depends on in-depth knowledge of the debtor's assets.

This article explores this complex dynamic, highlighting its fundamental importance for compliance with Article 6 of the European Convention on Human Rights (ECHR), which guarantees the right to enforcement of final court judgments.

• Legal background

Article 6 of the ECHR, which guarantees the "right to a court", states that the enforcement of judicial decisions is essential to this right.

The case law of the European Court of Human Rights, notably Scordino v. Italy (2006) [1] and Hornsby v. Greece (1997) [2], confirms this. However, as emphasized in Bourdov v. Russia (2002) [3], enforcement must be carried out within a reasonable timeframe, so avoiding a violation of the Convention.

• Understanding the debtor's assets

The debtor's assets are divided into two categories: positive assets, representing what he owns, and negative assets, which include all his debts.

Before initiating any enforcement measures, the judicial officer must evaluate the solvency of the debtor, considering the difference between positive and negative assets.

In addition, he must determine, based on this result, whether compulsory execution is useful. Forced enforcement can only take place if a debtor is unwilling to pay and is solvent.  Once the judicial officer has decided to pursue enforcement, he must still employ the most effective enforcement measure for the specific case.

He can only make these choices if he knows, with the greatest certainty, the current situation of the debtor's assets, whether negative or positive.

• Preconditions for enforcement

Enforcement is only possible if the debtor is sufficiently solvent and refuses to comply with the court order. In the absence of these conditions, alternatives such as mediation, conciliation, amicable debt collection or the intervention of social services must be considered. Access to assets is therefore crucial to avoid long and costly proceedings.

• Situation in Belgium

Belgium, following the 2014 reform, offers efficient access to the information needed by the judicial officer. Article 519 §3 of the Belgian Judicial Code emphasizes the judicial officer's duty to inform both creditor and debtor, including the possibility of accessing registers even before starting enforcement proceedings.

This proactive approach enables us to guide creditors towards legal or amicable solutions.

• Registers and databases

Belgium has a full range of registers and databases, giving the judicial officer an exhaustive view of the debtor's assets.

• National register: debtor location and situation analysis

Article 5, 4° of the law of August 8, 1983 organizing a National Register of Natural Persons gives judicial officers access to crucial information such as:

• surnames and first names,
• place and date of birth,
• gender
• nationality,
• main residence,
• place and date of death,
• marital status and household composition,
• occupation,
• family ties,
• legal cohabitation,
• mention of protective measures,
• the identity and contact details of the person responsible for administering the incapacitated person's property.

This computerized consultation, carried out via the judicial officer e-platform, makes it easier to locate the debtor and carry out an in-depth analysis of his or her situation.

• Register of foreigners: location of cross-border workers' place of work

The judicial officer can, when he can justify an assignment, access certain data in the Foreign Nationals Register, enabling him to locate the place of work of cross-border workers.

This information is valuable for finding solutions, particularly in the case of wage garnishments.

• Crossroads bank for enterprises: company locations and headquarters

The law of January 16, 2003, created the Crossroads Bank of Enterprises, providing comprehensive information on legal entities and individuals carrying out economic activity in Belgium.

This database, accessible to the public, is an essential tool for locating legal entities under Belgian law, as well as any individuals or associations carrying out economic and professional activities in Belgium, not forgetting public establishments.

It contains the following information:

• name,
• address
• date of creation,
• legal status,
• business activity.

• Fichier central des avis de saisies : negative asset

This file centralizes various notices, including those of seizure, delegation, assignment, collective debt settlement, protest, and eviction. Access to this file is regulated, but it is an important source of information on the debtor's negative assets.

Judicial officers may consult this file if they can prove that they are pursuing a collection procedure on the merits, if they have a judicial mandate to this effect, entrusting them, even conditionally, with the task of initiating such a procedure.

• Vehicle registration department (DIV): positive assets

The judicial officer has full online access to the DIV directory.

To be able to consult the DIV, you need a dual purpose:

• have a legal basis.
• have a legal purpose.

This access was recently extended by the law of April 13, 2019, which came into force on May 6, 2022.

In addition to consulting the DIV in the event of vehicle seizure, judicial officers may now consult the DIV in the following cases:

• as part of a solvency investigation, regardless of the stage reached in the collection procedure.
• in application of its duty to inform, regardless of the stage reached in the collection procedure.

It should also be noted that the plate holder is not necessarily the owner of the vehicle.

Consequently, registration in a person's name is never more than a presumption enabling us to estimate the debtor's assets.

• Register of pledges: negative assets

The new law on pledges has established a purely electronic pledge register, accessible to the public without any special justification. This resource provides information on the debtor's negative assets.

• Belgian ship register: positive assets

The Belgian ship register related data, providing an overview of the debtor's positive assets. Information includes ship registrations, property deeds and any seizures.

• Land registry: determining the property to be seized.

Online access to land registers, authorized by the Commission for Privacy, enables the judicial officer to determine the properties to be seized. This resource is essential in seizure-conservatory and immovable seizure.

• Mortgages register: positive and negative assets

The public registers of the mortgage registry real estate security interests and business pledges.

Available for a fee, these registers provide an overview of the debtor's positive and negative assets.

The mortgage registry is an official register accessible to the public for a fee, and data must be searched based on the identity of the person concerned.

This register can therefore be consulted at any time, without having to justify any particular purpose.

• Central register of marriage Contracts: solvency information

Created in 2009, this register centralizes data on all marriage contracts. Accessible to anyone with an interest, it provides valuable information for assessing a debtor's creditworthiness.

• Bank account: positive assets.

Access to bank accounts is more complex, requiring a request for a conservatory seizure, usually initiated by a lawyer before the seizure judge.

Although this approach is indirect, the European Account Preservation Order regulation has opened possibilities, underlining the influence of European regulations on Belgian national law.

• Crossroads bank for social security: positive assets

The judicial officer has access to the Crossroads Bank of Social Security. This database is responsible for managing, organizing, and authorizing the exchange of social security data between databases.

This resource offers comprehensive information on social benefits from a multitude of institutions.

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