On the 9th of April 2020, Royal Decrees in response to the COVID-19 crisis were published in the Belgian Official Gazette.
One of these decrees, Royal Decree no. 2 on the extension of statute of limitation and other time limits for taking legal action, as well as the extension of time limits for the administration of justice and written procedures before the courts and tribunals provides for an adapted legal framework in civil procedures.
This insight summarizes the main provisions of the Royal Decree.
HOW IS COMPUTED THE EXTENSION OF TIME LIMITS IN CIVIL PROCEDURE ?
As a rule, all procedural time limits in proceedings that are pending or are yet to be instituted, as well as all time limits for lodging an Appeal expiring between the 9th of April 2020 and (including) the 3rd of May 2020 shall be extended automatically to one month after the end of this period.
The end date of the 3rd of May could be extended by a following Royal Decree, depending on the duration of the crisis measures.
Example:
The time limit for lodging an Appeal expires on the 15th of April 2020. This time limit will be extended until the 3rd of June 2020 (one month after the 3rd of May 2020).
Should a future Royal Decree extend the end date of the crisis period by 15 days, the new time limit for the Appeal will be set on the 18th of June 2020.
If this extension is applied, the date of expiry of any subsequent time limits will also automatically be adjusted with the same amount of time as the extension.
Example:
Under a binding trial calendar, Party X has to file a trial brief on the 30th of April 2020, and subsequently, Party Y has to file on 31st of July 2020.
Party X’s new filing date will be set on the 3rd of June 2020. Party Y’s new filing date will be postponed with the same time period as the extension, i.e. 34 days. The filing date for Party Y will hence be the 3rd of September 2020.
ARE THERE EXCEPTIONS TO THE EXTENSION OF THE PROCEDURAL TIME LIMITS ?
If one of the parties argues that the normal continuation of the proceedings is urgent and that any delay may be detrimental, that party can request to apply the “old” calendar in writing or verbally at the hearing.
When a request is made in writing, the other parties are informed of this request and can deliver their written remarks within 8 days. After this period, the Judge will decide on the matter and conclude whether the request is founded or not. This decision is no subject to appeal.
WHAT ABOUT THE EXTENSION OF STATUTE OF LIMITATION PERIODS ?
All statutes of limitation and other time limits for bringing an action before civil courts that expire between the 9th of April 2020 and (including) the 3rd of May 2020 (unless otherwise adapted by a new Royal Decree), are also to be extended in the same way as the procedural time limits.
Example:
Article 2:143, § 4 and Articles 2:44 and following of the Companies and Associations Code provide for the possibility to request the annulment of a decision taken by the general shareholders’ meeting of a company. This claim must be made within a period of six months following the date on which the decision became enforceable against the claimant or the date on which the claimant was informed about the decision.
If such a period would expire between the 9th of April 2020 and the 3rd of May 2020 (included), it would be extended for an additional period of one month as of 3rd of May, thus until the 3rd of June 2020
WHAT IS THE GENERAL RULE FORESEEN REGARDING PLEADINGS ?
In order to meet the requirements of “social distancing” during the COVID-19 crisis, without completely paralyzing the functioning of the Belgian courts and tribunals, Royal Decree no.2 introduces a temporary regime whereby, as a general rule, oral pleadings are replaced by a written procedure.
According to Article 2 of the Royal Decree no.2, all civil matters where hearings were scheduled in the period between the 11th of April 2020 until (and including) the 3rd of June 2020 (provisionally), will be decided by the courts without oral pleadings and only based on the parties’ written trial briefs and the submitted bundles of evidence.
If necessary, the courts may request afterwards that the parties give oral explanations, possibly by videoconference.
The written procedure will apply automatically, the parties do not need to request its application.
SCOPE OF APPLICATION OF THE WRITTEN PROCEDURE ?
The written procedure only applies in civil proceedings and not in criminal proceedings except for the civil claims pending before a criminal judge.
WHAT ABOUT THE FORMALITIES ?
It is sufficient that trial briefs were filed. It is not required that they comply with all rules of the procedure (time limits, forms, etc.). Consequently, if the judge would afterwards disregard a certain trial brief, he can still deliberate the case without holding a hearing.
ARE THERE EXCEPTIONS TO THE WRITTEN PROCEDURE ?
The Royal Decree mentions two exceptions to the written proceedings:
Firstly, when all parties object to this jointly; in that case, the judge will postpone the case until after the Corona crisis is over – this may cause significant delays.
Secondly, if not all parties object, but only one or more, the judge has three options: (i) postpone the case; (ii) allow oral pleadings (for example via videoconference); (iii) or nevertheless impose written proceedings.
No appeal is possible against this decision.
A party that does not agree with the written procedure must inform the court in writing, stating its reasons:
- At the latest on the day before the hearing for cases set for hearings until the 17th of April 2020;
- At the latest one week before the hearing for cases set for hearings as from the 18th of April 2020 until the 3rd of June 2020.
However, parties who initially did not agree to a written procedure may revert on this decision at any time. Namely, by invoking the written procedure provided for in Article 755 of the Judicial Code.
In addition to these exceptions provided for in the Royal Decree, Article 1004/1 of the Judicial Code which gives the right to minors to be heard by the court in procedures concerning parental authority, residence arrangements and right to personal contact, remains applicable.
OTHER PRACTICAL IMPLICATIONS ?
The requirement that all parties will have to submit trial briefs in the written procedure will exclude the application of these rules in certain situations:
- When party is not represented by a lawyer and did not file written trial briefs itself;
- The possibility of a default judgment (Article 804 Judicial Code) will de facto be excluded in the period between the 11th of April 2020 until the 3th June 2020 (provisionally), ;
- Since “oral submissions” do not exist, also the application to cases heard at the introductory hearing will be virtually excluded (Article 735 Judicial Code).
It must be emphasized that this is an exceptional measure. The judge is given the freedom, but also the responsibility, to decide in the light of all relevant circumstances, including avoiding delays as much as possible, unless serious interests make a delay inevitable. For example, the fact that the parties may not be assisted by a lawyer deserves particular attention.