Q&A by NautaDutilh
Shortly after the government announced the first measures to combat Covid-19, the courts and tribunals followed suit. For its part, the College of Courts and Tribunals issued guidelines, the application of which may vary from court to court. On 9 April 2020, Royal Decree No. 2 (hereinafter "RD No. 2") was published in the Belgisch Staatsblad/Moniteur belge and subsequently entered into force. The decree provides for a number of statutory measures relating to the procedural deadlines in civil proceedings and the conduct of such proceedings in writing (without oral arguments). This Q&A answers the most important practical questions in this regard. Please note that the information provided below relates only to proceedings before the courts and tribunals in civil (including commercial) matters, thus not criminal and disciplinary cases.
Will my scheduled court hearing still take place?
RD No. 2 provides that all cases for which a hearing is scheduled between 11 April and 3 June 2020 will, in principle, be conducted in writing. The judge will take the case under advisement based solely on the parties' written submissions and documents, thus without oral arguments. This means that your case will not be delayed. If a party has not yet filed all of its exhibits, it must do so no later than eight days after the original hearing date. Within one month from the original hearing date (or after the filing of the exhibits), the judge may request verbal clarification from the parties, possibly by video conference.
A party that objects to this manner of conducting the proceedings must inform the judge in writing and justify its objections, at the latest one week before the original hearing date.
There are thus three possible scenarios:
- No party objects: The case will, in principle, be conducted in writing, but the judge retains the discretionary authority mentioned below (see point 3), unless the parties have expressly indicated their consent to have the case dealt with in writing (Art. 755 of the Belgian Judicial Code).
- All parties object: The proceedings will not be conducted in writing. The case will be put off and the pleadings rescheduled or postponed indefinitely.
- One or more, but not all, parties object: The judge will decide how the case will be handled, based on the file. The judge has broad discretionary authority and can (i) allow the scheduled hearing to take place, either physically or by videoconference, (ii) postpone the case indefinitely or until a given date, or (iii) take the case under advisement without hearing oral arguments.
It may therefore be worthwhile for parties to object if they do not want their case to be conducted in writing.
Before RD No. 2 entered into force, it was possible to hold hearings in urgent cases, either physically or via a WebEx video conference. Pursuant to RD No. 2, however, urgent cases may also be conducted entirely in writing. However, the court can take the urgency of the matter into account when making its assessment. The royal decree does not provide guidance on the question of when a case should be considered "urgent" and therefore to benefit from certain exceptions to the rules. An assessment must be made on a case-by-case basis and will vary from one court to another (the guidelines of the courts are available here). Summary proceedings, garnishment proceedings and (certain) insolvency proceedings are, in general, considered urgent, but other types of cases may qualify as well.
What happens to existing procedural deadlines for filing written submissions?
Written submission deadlines expiring between 9 April and 3 May 2020 will be extended by operation of law by one month (counting) from 3 May 2020, the date on which the coronavirus measures are currently expected to end. Subsequent procedural deadlines will also be postponed. These subsequent time limits are not extended as such, but will necessarily start to run later due to the extension of the previous deadline that expired during the crisis period.
- Example: Party A must normally file its submissions on 16 April 2020. Pursuant to RD No. 2, this deadline is now automatically extended until 3 June 2020. Party B originally had to file its submissions on 16 May 2020, one month after Party A. Party B's procedural deadline is pushed back to accommodate the extension A received and therefore expires on 3 July 2020.
This extension may also have consequences for the hearing of oral arguments. If a hearing is scheduled to be held less than one month from the last (extended) submissions deadline, it will be postponed until the first available hearing date one month after expiry of the last submissions deadline. Of course, this will depend on the court's availability, bearing in mind that a number of hearings may have to be rescheduled and that, in principle, the courts have no free hearing dates in the coming months (or year).
- In the above example, assume that oral arguments are scheduled to be heard on 16 July 2020. The hearing cannot take place as the date in question falls less than one month after the last submissions deadline (3 July). The hearing will therefore be postponed (until at least 3 August 2020).
What are the possibilities for derogation from the above rules?
- All parties can agree to stick to the original procedural timetable, without an extension. After all, practice over the last month indicates that many parties will not necessarily need an extension due to the coronavirus measures. In this case, the parties should inform the court of their decision.
- Likewise, if the last deadline for submissions falls in the period between 9 April and 3 May, the party concerned can, in our view, waive the extension and file its submissions on the initial date, in order to maintain the original hearing date.
- If the parties cannot reach an agreement, any party can petition the court not to apply the extension. The party must prove that "continuation of the proceedings is urgent and any delay would be prejudicial". The court will take a decision on this basis. If a case is urgent (such as an attachment), it is important to explain this in order to avoid an extension.
What about other deadlines which fall during the crisis period?
Limitation periods and procedural deadlines to lodge an application (e.g. An appeal) are also extended by one month from 3 may 2020.
- Example: if the deadline to lodge an appeal is 24 April 2020, it will be automatically extended until 3 June 2020.
Can I bring a new case before the courts?
According to guidance issued by the national chamber of bailiffs, a summons may be served only in urgent cases. Even in these cases, however, there are restrictions on the date on which the case will be brought before the court. In most cases, an introductory hearing will only be possible as from 19 April 2020 (this date will likely be extended until 3 May 2020), possibly sooner for urgent cases (such as summary proceedings) or with the prior consent of the president of the relevant court. It should be noted that there is no uniform practice in this regard.
What about introductory hearings?
It is difficult to observe social distancing guidelines at introductory hearings. Therefore, many courts and tribunals decided to postpone such hearings until a later date (e.g. June) or indefinitely. Exceptions are possible in urgent cases, depending on the court. The parties can agree on a procedural timetable in writing, before the original introductory hearing or afterwards (even before the new hearing).
Is the end date of these measures subject to change?
As indicated above, the extension of procedural deadlines and the rules on the conduct of proceedings in writing only apply to deadlines and hearings falling between 9 April and 3 May 2020 inclusive. In particular, the extension of procedural deadlines does not apply retroactively to deadlines that expired in the period between the introduction of the government's coronavirus measures on 18 March 2020 and the publication of rd no. 2 on 9 April 2020.
It is important to note that the currently scheduled end date (3 May 2020) could change. In this case, the deadlines for filing submissions and the limitation periods will be pushed back even further and more cases will be dealt with in writing.
In the present circumstances, clear communication between counsel and with the court is particularly important. Furthermore, especially in cases of doubt or special situations (potentially urgent matters), it is appropriate to check the rules applicable before the relevant court since judicial practice is not uniform (see here).
If you have any further questions, please do not hesitate to contact us.