Avoidance (clawback) Actions in Belgian Insolvency: a 2026 Practical Guide for Creditors and Companies

Avoidance actions Belgium sit at the centre of every insolvency recovery strategy, and in 2026 they remain a core concern for creditors, companies, insolvency practitioners and in-house counsel operating within the framework of Belgium’s Code of Economic Law (Wetboek van economisch recht / Code de droit économique), Book XX of which governs the insolvency of undertakings. Understanding how a payment, transfer or security granted in the period before a bankruptcy can be unwound is a compliance priority rather than a theoretical risk. This guide translates the Belgian statutory framework, read alongside the EU’s Directive (EU) 2019/1023, into practical steps: what transactions are catchable, how the suspect period operates, who can sue and be sued, and what defences realistically succeed.

It is written for readers who need actionable direction, not academic theory.

Purpose: this is compliance-focused, practical guidance for creditors, companies, insolvency practitioners and in-house counsel on avoidance (clawback) claims under Belgian insolvency law. It is general information and not legal advice, consult qualified counsel for case-specific matters. For local support, see Belgian civil practice and find an insolvency lawyer in Belgium.

Executive summary, what creditors and companies need to know

Before diving into detail, the core practical takeaways on avoidance actions Belgium can be distilled into a short set of points that every creditor and company should internalise.

• Catchable transactions. Preferential payments, transactions at an undervalue, security granted for pre-existing debt, and transactions made with intent to defraud creditors are the principal categories that may be unwound.
• The suspect period matters. Belgian law allows the court to fix a “suspect period” (période suspecte / verdachte periode) preceding the judgment declaring bankruptcy, during which certain transactions become vulnerable. The length is set by the court within statutory limits.
• Standing is concentrated. The court-appointed insolvency practitioner (the curator / curateur) is the primary claimant, with limited direct creditor standing in defined circumstances.
• Defences exist and work. Good-faith receipt, contemporaneous exchange of value, and legitimate business rationale are among the most effective defensive positions.
• Act immediately on notice. On receipt of a clawback claim, recipients should preserve documents, assemble contemporaneous evidence and take counsel before responding.

What are avoidance (clawback) actions under Belgian law?

An avoidance (clawback) action is a legal mechanism that allows an insolvency estate to reverse or “claw back” certain transactions entered into by a debtor before the opening of insolvency proceedings. The policy rationale is twofold: to preserve the principle of equal treatment among creditors (par condicio creditorum) and to restore assets to the estate that were improperly depleted in the run-up to insolvency. Where a debtor, sensing collapse, pays one creditor in preference to others or transfers assets for less than they are worth, avoidance rules permit the estate to reverse the effect and redistribute the recovered value fairly.

Avoidance actions Belgium must be distinguished from adjacent remedies. The actio pauliana, a general civil-law remedy available to creditors under the Belgian Civil Code against transactions concluded in fraud of their rights, targets fraudulent depletion; contractual rescission unwinds a contract on ordinary civil-law grounds; and civil liability actions (for example against directors) seek damages for wrongful conduct. Insolvency avoidance sits alongside these but has its own logic: it is triggered by the debtor’s insolvency and operates to reconstitute the estate rather than to compensate an individual party. In practice, a single set of facts may support several overlapping remedies, and the insolvency practitioner will select the route with the strongest evidentiary footing and the most useful remedy.

Legal basis, key statutes

The Belgian rules on insolvency avoidance are principally set out in Book XX of the Code of Economic Law, which consolidated the former Bankruptcy Act. The consolidated legislation is published and accessible through the Belgian Official Gazette (Moniteur belge / Belgisch Staatsblad). Belgian insolvency law is also informed by the EU’s Directive (EU) 2019/1023, which addresses preventive restructuring, insolvency and the discharge of debt across the Union. Procedural guidance and official information on how insolvency proceedings are administered in Belgium are published by the Belgian Federal Public Service (FPS) Justice. Practitioners should always verify the precise article numbers of the applicable provisions against the consolidated text on e-Justice, because the numbering and cross-references are the operative reference points in litigation.

Remedies typically sought

The relief pursued in an avoidance claim is restorative in character. The estate typically seeks the return of the asset transferred (restitution in kind), or, where return is impossible, a monetary equivalent. Additional remedies include declaring unenforceable against the estate a security interest granted in the suspect period, corrective registration to remove an improperly perfected charge, and set-off adjustments where the recipient also holds claims against the estate. The overriding objective is to place the estate back in the position it would have occupied had the impugned transaction not occurred.

The EU framework and its practical relevance

Belgian insolvency law operates within the harmonising context of Directive (EU) 2019/1023. The Directive is principally concerned with preventive restructuring, second-chance discharge and measures to increase the efficiency of insolvency procedures rather than with detailed avoidance rules, which remain largely a matter of national law. Its provisions nonetheless influence how member states treat transactions concluded in the shadow of insolvency, encouraging coherent treatment of suspect transactions and effective mechanisms for recovery. Broader EU policy context is available through the European Commission’s insolvency policy pages.

For readers assessing avoidance actions Belgium in practical terms, the significant consequence of EU harmonisation is greater predictability of treatment across borders. Companies should treat the framework as a prompt to review historic and ongoing transactions, and creditors should recalibrate their exposure assessments accordingly. The precise mechanics, including suspect-period thresholds and evidentiary standards, must be read directly from Book XX of the Code of Economic Law on the Moniteur belge, and this guide flags where readers must consult that primary text rather than rely on generalisation.

Confirming applicable provisions and dates

The operative provisions and their entry into force are recorded in the official publication of the relevant legislation in the Belgian Official Gazette. Because the timing of the bankruptcy judgment and the fixing of the suspect period determine which transactions fall to be assessed, parties should confirm the applicable provisions on which they intend to rely. Procedural information on how proceedings are opened and administered is maintained by FPS Justice.

Transitional considerations

Where legislation is amended, transitional arrangements determine whether new rules apply to transactions concluded before the effective date or to proceedings already underway. As a matter of general principle, insolvency reforms are typically applied to proceedings opened after commencement, with transactions assessed against the law in force at the relevant time. Any transitional provisions, and any limited retrospective effect, must be verified against the implementing act itself. Where a transaction straddles a reform date, practitioners should obtain a considered opinion on which regime governs before framing a claim or a defence.

Types of avoidable transactions in Belgium

A clear taxonomy of avoidable transactions helps both claimants and recipients assess exposure quickly. The categories overlap in practice, and a single transaction may be attacked on more than one basis. Under Belgian insolvency law, certain transactions concluded during the suspect period may be declared unenforceable against the estate, while transactions made in fraud of creditors’ rights may be attacked regardless of when they occurred.

Preferential payments and abnormal transactions in the suspect period

Belgian law treats a number of acts concluded during the suspect period as unenforceable against the estate, including transactions concluded at a manifest undervalue, payments of debts not yet due, payment of due debts by means other than cash or ordinary commercial instruments, and security granted for pre-existing debts. Classic examples include repaying a related-party loan shortly before collapse, discharging a shareholder’s debt in priority to trade creditors, or granting a mortgage to secure an existing unsecured debt. The vulnerability of such acts turns on their timing within the suspect period and on their abnormal character; for certain categories intent to prefer is not a required element, which makes documentary timing evidence critical.

Banks and institutional creditors receiving unexpected repayments or fresh security from a struggling debtor should be alert to this category in particular.

Undervalued (insufficient consideration) transfers

An undervalued transfer is a disposal of an asset for substantially less than its market value, causing prejudice to the estate. Selling property to a connected party at a discount, transferring a business unit for nominal consideration, or forgiving a debt without commercial justification all fall within this category. The estate must generally show that the consideration received was materially inadequate and that the transaction depleted assets otherwise available to creditors. Contemporaneous, independent valuation evidence is decisive both for the practitioner seeking to establish undervalue and for the recipient seeking to demonstrate that fair value was in fact exchanged.

Transactions in fraud of creditors

Transactions made with intent to defraud creditors form the most serious category and may be challenged, including through the actio pauliana, irrespective of whether they fall within a fixed suspect period, provided the requisite fraudulent intent and prejudice to creditors are established. Because it depends on proof of intent, this route carries a heavier evidentiary burden. Indicators of fraudulent intent include transfers to family members or connected entities, transactions concealed from other creditors, and disposals lacking any legitimate commercial rationale. Where fraud is alleged, the recipient’s knowledge and good faith become a central battleground.

Who can bring avoidance claims and who can be targeted?

Standing in avoidance actions Belgium is concentrated, but not exclusive, and the range of potential defendants is broad.

Insolvency practitioner powers

The court-appointed insolvency practitioner, the curator / curateur, is the primary party empowered to bring avoidance claims on behalf of the estate. Acting for the collective interest of creditors, the practitioner investigates pre-insolvency transactions, gathers evidence and decides which claims to pursue based on recoverability and cost. The scope of these powers and the practitioner’s procedural role are described in the official guidance published by FPS Justice.

Creditors’ direct actions

Individual creditors have more limited standing. In defined circumstances, and subject to the primacy of the collective proceeding, a creditor may pursue certain remedies, including the general actio pauliana, where the estate does not act, but such direct actions are constrained to avoid undermining the equal-treatment principle that avoidance rules exist to protect. Creditors who believe an unwindable transaction has been overlooked should ordinarily raise it with the practitioner rather than litigate independently.

Targeted recipients

The universe of potential defendants extends well beyond the immediate counterparty. Third-party transferees who received assets, directors who authorised prejudicial transactions, and related or connected parties who benefited from preferential treatment can all be targeted. Related-party status frequently attracts closer scrutiny, because transactions between connected persons are more susceptible to abuse.

Time limits and the suspect period explained

The suspect period, the window preceding the bankruptcy judgment during which certain transactions become vulnerable, is a central variable in any avoidance analysis. Under Belgian law, the court may fix the date on which the debtor ceased to make payments, and from that the suspect period is determined within the limits set by Book XX of the Code of Economic Law. The default position ties this date to the bankruptcy judgment, but the court may set it earlier within a statutory maximum. The precise period must be read from the applicable text published on the Moniteur belge, and practitioners must verify the exact statutory limit applicable to their facts before relying on it.

Transactions in fraud of creditors may be attacked outside any fixed suspect period, subject to the applicable limitation rules.

Suspension and discovery-based delays

The suspect period runs backwards from the date the debtor is found to have ceased payments, but the running of limitation periods for bringing the claim itself can be affected by suspension or by delayed discovery of the relevant facts. Where a transaction was concealed, the practical ability to litigate may depend on when the estate could reasonably have discovered it. Because these rules interact with both the suspect period and general civil-law limitation, parties should map the relevant dates carefully at the outset.

Interaction with limitation periods under civil law

The suspect period defines which transactions are catchable; separate civil-law limitation periods govern how long the estate has to commence proceedings once entitled to do so. These are distinct concepts that must not be conflated. A transaction may fall squarely within the suspect period yet be time-barred for procedural reasons if the estate delays, and conversely a timely claim may still fail if the transaction falls outside the relevant period. The safest course is to treat both timelines as independent hurdles that each must be cleared.

Defences, evidence and practical steps for recipients of a clawback claim

Recipients facing avoidance actions Belgium are not without recourse. Several defences are well recognised, and their success depends heavily on the quality of contemporaneous documentation. The essential defensive positions include:

• Good-faith receipt. Demonstrating that the recipient received value without knowledge of the debtor’s cessation of payments or of any intent to prefer or defraud.
• Contemporaneous exchange of value. Showing that new value was provided at or around the time of the transfer, so the estate was not depleted.
• Timing outside the suspect period. Evidence that the transaction occurred before the date fixed for cessation of payments or otherwise outside the vulnerable window.
• Legitimate business rationale. Establishing an ordinary commercial reason for the transaction that negates any suggestion of abnormality, preference or fraud.
• Set-off and statute-bar. Asserting valid set-off rights or that the estate’s claim is time-barred under applicable limitation rules.

Documentary evidence to assemble

The recipient’s file wins or loses the case. On notice of a claim, assemble bank records evidencing the flow and timing of funds, board and shareholder minutes recording the commercial decision, independent valuations supporting the consideration exchanged, correspondence showing arm’s-length negotiation, and any contemporaneous financial assessments. Reconstructing this evidence after the fact is far less persuasive than a contemporaneous record, which is why disciplined document retention is itself a risk-mitigation strategy.

Procedural defences

Beyond the merits, procedural defences may be available. These include challenges to the standing of the claimant, arguments that the claim was commenced outside the applicable limitation period, and, in appropriate cases, estoppel-type arguments where the estate or its predecessors led the recipient to act to their detriment. Procedural points should be identified early, because raising them late can waive them.

Settlements within insolvency procedures

Settlement is often the pragmatic outcome. Recipients can negotiate a compromise with the practitioner, frequently avoiding the cost and uncertainty of full litigation. However, settlements reached in the insolvency context may require appropriate oversight, including, where applicable, authorisation from the supervising judge (juge-commissaire / rechter-commissaris), and can be scrutinised to ensure they serve the collective interest of creditors. Parties should structure any settlement transparently and confirm the procedural steps needed to render it robust against later challenge.

Practical steps for creditors and insolvency practitioners to bring a claim

For the party bringing an avoidance claim, disciplined case management is decisive. A structured approach maximises recovery and controls cost.

1. Identify and triage suspect transactions during the estate investigation, prioritising by value and evidentiary strength.
2. Confirm the applicable suspect period and limitation deadline for each candidate transaction against the primary statutory text.
3. Preserve assets where dissipation is a risk, using available interim and protective measures.
4. Calculate the recoverable amount and select the optimal remedy, restitution in kind, monetary equivalent or a declaration that security is unenforceable against the estate.
5. Conduct a cost/benefit analysis, weighing likely recovery against litigation cost and defendant solvency.
6. Coordinate the claim with the wider insolvency proceeding to avoid inconsistent positions and duplicated effort.

Practical drafting checklist for pleadings

Effective pleadings state the transaction precisely, identify the category of avoidance relied upon, plead the facts establishing each element (timing, undervalue or intent), and specify the remedy sought with a clear quantification. Attaching or referencing the contemporaneous documentary record at the pleading stage signals strength and encourages early settlement.

Tactical timeline from discovery to judgment

A realistic timeline runs from investigation and evidence-gathering, through pre-action preservation and any protective measures, to the commencement of proceedings, exchange of submissions, expert evidence on valuation or solvency, and finally hearing and judgment. Building in time for expert reports, particularly valuations in undervalue claims, prevents avoidable delay, and early identification of the defendant’s likely defences allows the claimant to marshal rebuttal evidence in advance.

Cross-border avoidance actions Belgium and enforcement

Many insolvencies today have a cross-border dimension, and cross-border avoidance actions Belgium raise distinct questions of forum, applicable law and enforcement. Within the EU, the recast Insolvency Regulation ((EU) 2015/848) governs the recognition of insolvency proceedings and related measures, shaping where a claim should be brought and how a resulting judgment can be enforced across member states. The interaction between insolvency-specific instruments and general civil jurisdiction rules can be intricate, and the European Commission’s insolvency resources provide useful context on the policy architecture.

When to litigate locally versus in other EU states

The choice of forum depends on where the defendant and the assets are located, which court has jurisdiction over the avoidance claim, and where enforcement will ultimately be sought. Litigating in the forum of the main insolvency proceeding often provides coherence, but where assets or defendants are elsewhere, a claim in another member state may be more efficient. The decision should be taken after mapping the asset picture and the recognition route.

Practical enforcement steps

Enforcement typically involves obtaining recognition of the Belgian judgment or measure in the state where the assets sit, followed by attachment or seizure under local procedure. Early coordination with foreign insolvency administrators and local enforcement counsel prevents assets slipping away during the recognition process. Where dissipation is feared, protective attachment before final judgment may be available and should be considered at the outset.

Remedies available and enforcement of successful avoidance claims

A successful claim restores value to the estate, and the available remedies mirror the nature of the impugned transaction. Where the asset itself remains identifiable, the court can order restitution in kind. Where it does not, monetary payment representing the value lost to the estate is the ordinary remedy. Security granted in the suspect period can be declared unenforceable against the estate, restoring the recipient to the position of an unsecured creditor, and improper registrations can be corrected. Recovered sums are returned to the estate and distributed according to the applicable ranking of claims.

Prioritisation and impact on preferred creditors

Recovered value re-enters the general estate and is distributed in accordance with the statutory order of priority, which affects preferred and unsecured creditors differently. A recipient whose security is set aside is demoted to the unsecured class, materially changing the distribution outcome. Practitioners must factor the costs of pursuing recovery into the net benefit to creditors, because litigation expense reduces the sum ultimately available for distribution.

Case law and emerging trends (2026 snapshot)

The body of interpretive case law on avoidance under Book XX continues to develop. Authoritative decisions of the Belgian Court of Cassation (Cour de cassation / Hof van Cassatie) shape how the suspect period and evidentiary standards are applied in practice, and scholarly analysis from institutions such as the KU Leuven Faculty of Law provides valuable commentary on emerging trends. Practitioners generally expect litigation to focus on the boundaries of the suspect period and on the evidentiary burden in undervalue and preference claims. Where a specific ruling is required, practitioners should consult the published judgment directly rather than rely on secondary summaries.

Comparison table, avoidable transactions, elements, timing and defences

Note: the categories and timing above are indicative and must be confirmed against the exact provisions of Book XX of the Code of Economic Law published in the Belgian Official Gazette. Do not rely on generalisations without verifying the applicable statutory provision for your facts.

Conclusion, immediate action checklist for companies and creditors

Avoidance actions Belgium reward preparation and punish delay. Whether you are a company seeking to reduce clawback exposure, a creditor assessing recovery, or a recipient facing a claim, the practical priorities are consistent. Audit historic and ongoing transactions against the statutory framework, paying particular attention to related-party dealings and disposals near a period of financial stress. Preserve contemporaneous documentation, bank records, board minutes and independent valuations, because the strength of your file determines outcomes. Engage counsel early, notify relevant insurers where cover may respond, and monitor the developing case law interpreting Book XX. Treated as an ongoing compliance discipline rather than a one-off exercise, sound transaction hygiene is the single most effective protection against avoidance actions Belgium.

Sources

1. Directive (EU) 2019/1023 on restructuring and insolvency (EUR-Lex)
2. Belgian Federal Public Service (FPS) Justice
3. Belgian Official Gazette / e-Justice (Moniteur belge / Belgisch Staatsblad)
4. Court of Cassation (Belgium)
5. KU Leuven, Faculty of Law
6. European Commission, Insolvency policy