In the past, administrators of commercial companies with limited liability (eg, NV/SA and BVBA/SPRL) were not seen as 'merchants' under Belgian law. In other words, the administration of commercial companies was not seen as a commercial act. As a result, such administrators could not (personally) be declared bankrupt.
The Belgian insolvency law's scope was recently broadened (for further information please see "Changes to insolvency regime proposed". As of 1 May 2018, all entities that are involved in commercial or entrepreneurial activities can be declared bankrupt (or enter into court-supervised reorganisation proceedings).
Discussion has started about whether company administrators can also be seen as being 'involved in an entrepreneurial activity' and thus declared bankrupt. Such a bankruptcy has an important effect on the administrator in question. However, the first pieces of jurisprudence in this regard seem to have gone both ways, as courts in Ghent have accepted opening personal bankruptcies for administrators, while a court in Turnhout has refused such an application.
More jurisprudence is needed, particularly from the courts of appeal, to see how the dust settles in this matter.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.