The debtor may request a transfer of assets either in the initial application or later during the course of the PRJ. They can thus first attempt a collective agreement and subsequently decide to pivot toward an asset transfer. In certain specifically defined cases, the asset transfer may also be requested by an interested third party, such as the Public Prosecutor's Office (Ministère Public) or a creditor.
It is worth noting that an asset transfer can be granted even when the debtor is in a state of bankruptcy, as the primary objective is to execute the transfer while keeping the business operating as a going concern, which naturally offers significantly better prospects of success.
The court ruling ordering the transfer appoints one or several court-appointed practitioners (mandataires de justice). Their mission is to organize and execute the transfer in the name and on behalf of the debtor. The practitioner is not responsible for managing the day-to-day operations of the company, as this responsibility remains with the usual management bodies. Thus, operational management and transaction management are clearly separated. To implement the transfer, a new stay period of up to six months may be granted.
The choice of the court-appointed practitioner is left to the discretion of the judge. However, the practitioner must demonstrate proven experience, competence, and independence. They operate under the oversight of the Reporting Judge (Juge Délégué), who submits findings to the Commercial Court, the latter holding ultimate decision-making authority. The court may at any time replace the practitioner, or increase or reduce their number.
The judgment appointing the court-appointed practitioner is published in the Belgian Official Gazette (Moniteur Belge) to inform all interested parties.
The transfer covers "all or part of the company." The aim is to transfer a coherent set of assets, production capabilities, customer bases, and associated elements as a going concern. In principle, the workforce attached to these assets is transferred while maintaining accrued rights (seniority, fringe benefits, etc.), unless otherwise agreed with employee representatives. However, the acquirer may choose to take on only a portion of the personnel, provided this selection is justified by technical, economic, or organizational reasons. This flexibility deviates from the standard rules governing conventional business asset transfers, where the entire workforce must be retained with all accrued rights preserved (Collective Bargaining Agreement No. 32bis).
The court-appointed practitioner is tasked with soliciting acquisition offers, prioritizing the preservation of ongoing business activity while safeguarding creditors' rights. Accordingly, mortgagees or creditors holding a pledge over the business assets (gage sur fonds de commerce) must be heard when the property encumbered by their security interest is sold. If multiple offers are submitted, the court will give preference to the one that best safeguards employment continuity. The court may also attach specific conditions to the transfer, such as establishing a minimum purchase price.
The court-appointed practitioner prepares the draft deed of transfer. The sale is authorized by court judgment and formally served on creditors, who retain the right to appeal. The transaction is subsequently executed by the practitioner, with the assistance of a notary public (for real estate assets) or a judicial officer/bailiff (huissier de justice) in cases of public auction. Proceeds from the sale are collected by the practitioner, who manages their distribution among creditors.
Before the expiration of the stay period, the practitioner petitions the court to close the judicial reorganization procedure (PRJ). This closing judgment formally registers the completion of the transfer in accordance with the approved plan, marks the end of the PRJ, and grants full discharge to the practitioner. The buyer is bound solely by the obligations explicitly set forth in the deed of transfer.
This unique transfer mechanism enables a distressed company to find a buyer within a structured, legally protected framework. Such a setup can prove vital for the survival of an over-indebted enterprise. The legislature intended to prioritize the business entity and its workforce, aiming to foster continuity across as many cases as possible.
Article originally published in La Libre Économique by Tanguy della Faille, Partner at Fondaris, on 27/10/2012. Updated/published version on the Fondaris website with the author's permission.
