Belgium
A creditor may apply to have a debtor’s assets frozen, preventing the debtor from disposing of the encumbered assets (for example, by selling them). Two conditions must be met:
- The creditor must have a good arguable case that it has a due and payable debt owed by the debtor. That is, the creditor need not have already obtained a judgment ordering the creditor to pay the debt and the mere fact that the claim is contested does not prevent a creditor from freezing its debtor's assets. The court will determine, on a prima facie basis, whether the creditor's arguments are sufficient to justify the freeze.
- The creditor must have reason to believe that it will be unable to recover the debt unless the debtor’s assets are frozen (the so-called urgency requirement). This essentially means that the debtor is in or is facing financial difficulties.
Since secrecy is of the utmost importance, a freezing order is requested by filing an ex parte application with a specialized judge sitting in the Court of First Instance. Usually within a few days, the order is rendered. If the asset freeze is granted, the creditor will have the order served on the debtor by a bailiff, following which the freezing order takes effect.
For assets owned by a debtor but held by a third party (for example, funds in the debtor's bank accounts), the creditor is not actually required to seek authorisation from the court before instructing a bailiff to have the assets frozen. It is to be noted, however, that a creditor proceeding om this basis would do so at its own risk: should the debtor decide to bring a challenge, the court may overrule the freeze and (albeit rather exceptional in practice) order the creditor to pay damages. Additionally, the third party holding the debtor’s assets has fifteen days following service of the freezing order to deliver a declaration to the court. The declaration states what assets it holds for or on behalf of the debtor. If the third party fails to deliver the declaration, the court may (although it does enjoy a margin of discretion) decide that the third party is jointly and severally liable together with the debtor for the creditor’s debt.
The debtor may challenge the freezing order within one month of being served with it. The debtor can argue that the two conditions mentioned above were not met and could even claim damages from the creditor if the court finds that the initial order was abusive – that is, obtained in bad faith. For example, it may be deemed abusive if a creditor proceeds to freeze a debtor’s assets without the court’s prior authorization (where such authorization was not required) and the court subsequently decides that the relevant conditions were clearly not met, or if the court believes that the information presented to it by the creditor in order to obtain the freezing order was not accurate or complete.
In principle, all assets (real estate, movable property, and claims on third parties such as bank accounts) can be attached. However, there are a number of exceptions - for instance, government assets.