Cross-border Group Restructurings in Belgium: COMI, Coordination and Creditor Voting Under EU Insolvency Law

Group insolvency Belgium decisions have become materially more complex as the European Union advances the harmonisation of insolvency law. The EU has pursued, through the Restructuring and Insolvency Directive (EU) 2019/1023 and subsequent legislative proposals, greater convergence of the tests that determine where a group can restructure, how creditors vote and how foreign decisions are recognised. For any multinational with Belgian subsidiaries, a Belgian parent or significant Belgian creditors, these developments affect the calculus of whether to run a single coordinated plan or several parallel procedures. This guide sets out, in practical terms, how the EU framework shapes the centre of main interests (COMI) analysis, creditor voting thresholds and group coordination in Belgian practice before the Enterprise Court.

It is written for decision-makers who need to act, not merely to understand. Throughout, every legal proposition is anchored to primary sources listed at the end, which should be consulted for their authentic and current text.

Executive summary and recommended immediate steps

When a Belgian group entity faces distress within a cross-border structure, the first 30 to 60 days determine most of the eventual outcome. Value leaks fast, intercompany positions harden, and creditors begin to organise. A disciplined early response preserves optionality, the ability to choose between a coordinated group plan and separate procedures, rather than having that choice made by events.

The recommended immediate steps for directors and management of a Belgian group entity are:

• Stabilise cash. Produce a reliable 13-week cash-flow forecast for each Belgian entity and for the group, and identify the point at which liquidity fails.
• Assemble a cross-border team. Appoint Belgian insolvency counsel together with counsel in each jurisdiction where a group company sits, plus financial advisers who can model the plan economics.
• Freeze intercompany payments where appropriate. Suspend non-essential intra-group transfers to avoid later challenge as preferences, and document the commercial rationale for any payment that continues.
• Seek court protective measures. Where enforcement or creditor action threatens going-concern value, consider applying to the Belgian Enterprise Court for the protection available under the judicial reorganisation framework.

A practical tactical timeline is: within days 1–10, lock down cash reporting and legal advice; by days 10–30, decide provisionally between a coordinated plan and parallel plans and begin COMI evidence collection; and by days 30–60, file for protection where needed and open structured creditor engagement. The decisions taken in this window shape the entire group insolvency Belgium strategy, so document the reasoning behind each one.

The evolving EU insolvency framework, from Directive 2019/1023 to Belgian impact

The European Union has pursued a long-standing objective of reducing the fragmentation and legal uncertainty that make cross-border restructurings slow and expensive. The cornerstone measure, Directive (EU) 2019/1023 on preventive restructuring frameworks, has already been transposed into Belgian law and introduced preventive reorganisation tools, class-based creditor voting and cross-class cram-down into the Belgian regime. The Commission has since proposed further harmonisation of substantive insolvency rules, covering areas such as avoidance actions, asset-tracing and insolvency proceedings for micro-enterprises, which continues to progress through the EU legislative process. For Belgian practice, the significance of this programme lies in harmonising the elements that most directly drive forum selection and plan feasibility.

Key areas that matter for cross-border groups

The provisions that most affect a cross-border group restructuring in Belgium concern four areas. First, the determination of the centre of main interests, governed principally by the EU Insolvency Regulation (Regulation (EU) 2015/848), which reinforces an evidence-based, objective approach that third parties can verify. Second, the harmonisation of aspects of creditor classification and voting, including the thresholds by which a class is treated as approving a plan, introduced through Directive (EU) 2019/1023. Third, the framework for recognition of restructuring and insolvency decisions taken in other member states under the Insolvency Regulation, which limits the scope for a second court to reopen questions already decided.

Fourth, group-coordination mechanisms and rules on avoidance and clawback actions, which remain the subject of ongoing EU harmonisation proposals. Each of these should be read against the authentic texts published in the Official Journal via EUR-Lex rather than any summary.

Belgian implementing instruments

In Belgium, the architecture for reorganisation sits principally in Book XX of the Code of Economic Law (“Insolvency of enterprises”), which replaced the earlier Act of 8 August 1997 on continuity of enterprises and under which judicial reorganisation proceedings are handled by the Enterprise Court. The Belgian transposition of Directive (EU) 2019/1023 was effected by the Act of 7 June 2023, which reformed and modernised Book XX, in particular its provisions on preventive and judicial reorganisation. Implementing instruments are published in the Belgian Official Gazette (Moniteur belge / Belgisch Staatsblad) and are accessible through the eJustice portal.

Practitioners should confirm the status and exact reference of the applicable Belgian provisions at the moment of acting, because the national text governs; where any further EU harmonisation remains outstanding, the relevant Directive’s interpretive effect and the Commission’s implementation materials become relevant.

COMI in Belgian group insolvency, tests, evidence and practical tips

COMI is one of the most consequential concepts in group insolvency Belgium planning, because it determines which court opens the main proceeding and therefore which law shapes the plan. Getting COMI wrong, or failing to evidence it, can collapse a coordinated strategy, invite competing filings and delay protection at the moment it is most needed.

COMI legal test, EU jurisprudence and the Belgian approach

The foundational authority remains the Court of Justice of the European Union’s decision in Eurofood IFSC Ltd (Case C-341/04), together with the codified approach in the EU Insolvency Regulation (Regulation (EU) 2015/848). Eurofood established that COMI must be identified by reference to criteria that are both objective and ascertainable by third parties, and that the registered office carries a presumption which can be rebutted only by factors demonstrating that the real centre of a company’s administration lies elsewhere. The case is particularly important in the group context because it confirms that each company’s COMI must be assessed individually; the mere fact that a parent controls a subsidiary does not of itself move the subsidiary’s COMI to the parent’s jurisdiction.

The Regulation reinforces this requirement that COMI rest on verifiable, third-party-ascertainable facts and introduces an anti-abuse safeguard where a company has moved its registered office within a defined period before a request to open proceedings. For Belgian affiliates, this means the registered-office presumption holds unless the evidence shows that core management, decision-making and operations genuinely sit outside Belgium.

COMI checklist for Belgian affiliates

To establish or defend the COMI of a Belgian entity, assemble contemporaneous evidence across the categories that courts and third parties actually scrutinise:

• Management and decision-making. Location where directors meet, where board resolutions are adopted, and where day-to-day strategic decisions are taken.
• Banking and treasury. Location of principal bank accounts, cash management and the people who authorise payments.
• Accounting and administration. Where the books are kept, where financial reporting is produced and where the head-office functions sit.
• Core operations. Location of the company’s main trading activity, employees, premises and customer-facing functions.
• Third-party perception. How the company holds itself out to creditors, contractual counterparties and the public, including correspondence addresses, invoicing and public filings.

The following sample evidence table illustrates what to gather and why it matters:

Tactical steps to manage or rebut COMI claims

Where the strategy is to locate the main proceeding in Belgium, consistency matters more than any single document: ensure that governance, banking and third-party-facing materials all point to Belgium, and avoid last-minute relocations that look engineered. Courts are alert to COMI migration undertaken shortly before filing, and the Insolvency Regulation’s anti-abuse rule reinforces that scrutiny. Conversely, if a creditor or competing group entity asserts that a Belgian company’s COMI lies abroad, rebut with the same evidence set, emphasising the registered-office presumption and the absence of ascertainable factors displacing it. In every case, build the COMI file early, because evidence created in the ordinary course carries far more weight than material assembled in anticipation of litigation.

Coordinating a cross-border group plan, structures, protocols and cross-border recognition

Once COMI is settled for each entity, the next strategic choice is architectural: one plan for the whole group, plans for defined subgroups, or parallel plans running in each relevant jurisdiction. There is no universally correct answer; the right structure depends on the integration of the business, the location of value and creditors, and the appetite of key stakeholders for a coordinated outcome.

Coordination mechanisms

Where a coordinated approach is chosen, the group needs machinery to hold it together. The EU Insolvency Regulation already provides for group coordination proceedings, allowing a coordinator to be appointed to align procedures across related entities, though participation is voluntary. In practice, common mechanisms include appointing a joint procedural coordinator to align timetables and information flows across proceedings, and establishing a cross-border steering committee of the principal advisers and, where appropriate, key creditors. A well-drafted coordination protocol records how the separate proceedings will interact, on timing, disclosure, treatment of intercompany claims and dispute resolution, without purporting to override the jurisdiction of any individual court.

The protocol is not a substitute for the statutory procedure in each state; it is the operational glue that prevents the group plan from unravelling because of divergent local steps.

Recognition of foreign insolvency decisions in Belgium

Recognition is the hinge on which cross-border restructuring Belgium strategies turn. If a restructuring plan sanctioned abroad cannot be recognised in Belgium, Belgian creditors and assets fall outside its reach, and the coordinated outcome fails at its most important point. Within the EU, the Insolvency Regulation provides for the automatic recognition of insolvency proceedings opened in the member state of the debtor’s COMI, narrowing the grounds on which a Belgian court may refuse or reopen matters already decided by the court of the main proceeding. Practically, giving effect to a foreign decision may still require procedural steps in Belgium, with translations where required, and public-policy and procedural-fairness safeguards remain available as limited defences.

For non-EU proceedings, recognition is governed by the applicable private international law rules and any relevant treaties. Planning the recognition pathway at the outset, rather than treating it as an afterthought, is one of the clearest lessons of effective group insolvency Belgium practice.

Negotiation tips for intercompany claims and intra-group setoffs

Intercompany claims are frequently the most contested element of a group plan, because they shift value between entities and therefore between creditor pools. Reconcile intercompany balances early and document their basis; untested or poorly evidenced claims invite challenge and erode confidence. Where intra-group setoffs are proposed, confirm their validity under the applicable law and ensure that their effect on external creditors is transparent. The credibility of the whole coordinated plan often depends on whether external creditors believe the intercompany treatment is fair rather than a device to advantage one part of the group over another.

Creditor voting in group insolvency Belgium, class formation and cram-down

Creditor voting is where the economics of a plan meet the mechanics of approval. Directive (EU) 2019/1023, as transposed into Belgian law, governs important aspects of classification and voting in preventive restructuring, and understanding how those rules interact with Belgian procedure is essential to any realistic assessment of whether a plan can pass.

Voting thresholds under the EU framework and Belgian law

Directive (EU) 2019/1023 addresses the thresholds by which a class of creditors is treated as having approved a restructuring plan and provides a framework for confirming a plan despite the dissent of one or more classes, the cross-class cram-down. Belgian reorganisation procedure, built into Book XX of the Code of Economic Law, already contains majority requirements for creditor approval of a reorganisation plan and, following the 2023 reform, provides for class-based voting and cross-class cram-down in the preventive context. Because the precise figures and conditions are set by the applicable Belgian provisions, they should be verified against the authentic sources at the time of planning rather than assumed from memory of prior practice.

How to calculate cross-border votes, a worked example

The following worked example shows the logic of a cross-border vote across classes. Assume a Belgian parent proposes a coordinated plan covering itself and two foreign subsidiaries, with creditors grouped into classes by rank. Approval within a class is tested by the applicable threshold; the plan then proceeds to confirmation, where cross-class cram-down may be available if the statutory conditions are met.

In this illustration three of four classes approve. The junior unsecured class rejects. Whether the plan can nonetheless be confirmed depends on satisfying the cross-class cram-down conditions, in particular that the dissenting class is treated fairly relative to its ranking and receives at least what it would obtain in the relevant comparator scenario (such as the best-interests-of-creditors test). The arithmetic is only the first step; the confirmation analysis, including the treatment of the intercompany class, determines the real outcome. This is why creditor voting Belgium strategy must model not just the headline percentages but the confirmation test behind them.

Secured creditor issues

Secured creditors sit at the top of the structure and frequently hold decisive influence. Their enforcement rights over collateral, the valuation of that collateral and the treatment of any shortfall as an unsecured claim all feed directly into class formation and voting power. A plan that fails to engage secured creditors realistically, on valuation, on the preservation of their security, or on the economics of their recovery, rarely survives contact with the vote. Early, candid engagement with secured lenders is almost always the highest-value negotiation in a group restructuring.

Treatment of financial creditors and regulatory constraints

Where regulated financial institutions are among the creditors, additional constraints apply. The Financial Services and Markets Authority (FSMA) and the National Bank of Belgium (NBB), which share responsibility for financial supervision in Belgium, are relevant to the treatment of regulated financial claims, and the regulatory status of a creditor can affect how its claim is classified and how it may participate in a plan. Separate resolution regimes apply to credit institutions and investment firms, which fall outside the ordinary insolvency framework. Practitioners should confirm the regulatory treatment of any financial creditor at the classification stage, because an error here can undermine the integrity of the vote and expose the plan to later challenge.

Enterprise Court practice in Belgium, filings, hearings and judicial attitudes

The Enterprise Court (tribunal de l’entreprise / ondernemingsrechtbank) is the primary venue for judicial reorganisation of companies in Belgium, and understanding its practice is indispensable to executing any group insolvency Belgium strategy. Court attitude, not just statutory text, shapes outcomes.

Typical timetable and key filings

A judicial reorganisation begins with an application to the Enterprise Court supported by the documentation that Book XX of the Code of Economic Law requires to assess the company’s situation and the viability of a reorganisation. Where protection is granted, a period of suspension (sursis) follows during which the company is shielded from certain creditor enforcement while it develops and puts a plan to the vote. Key filings include the originating application and supporting financial information, the list of creditors with their claims, and ultimately the plan itself.

The precise filing requirements and timetable are governed by Book XX and the court’s own practice, and should be confirmed through the official Belgian justice resources and the Central Solvency Register (RegSol), through which much insolvency filing now takes place.

Evidence and disclosure expectations in the Enterprise Court

The Enterprise Court expects candour and completeness. Applications supported by clear financial information, a credible creditor list and a coherent account of the company’s position are received very differently from those that appear incomplete or opportunistic. In the group context, the court will be alert to COMI questions and to whether the Belgian proceeding is genuinely anchored in Belgium. Disclosure that is accurate, timely and consistent with the COMI evidence described earlier builds the judicial confidence on which protection and, ultimately, confirmation depend.

Appeals and coordination with foreign insolvency courts

Decisions of the Enterprise Court are subject to the ordinary avenues of appeal, and in a cross-border matter the Belgian proceeding will frequently need to run in parallel with proceedings before foreign courts. This is where the coordination protocol and the recognition pathway converge: the Belgian court must be able to see how its decisions interact with those abroad, and the group must ensure that Belgian steps do not inadvertently cut across the recognition of foreign decisions or vice versa. Managing this interface deliberately is a hallmark of well-run cross-border restructuring Belgium cases.

Practical checklists, timelines and templates

The following actionable checklists translate the preceding analysis into tasks. They are intended as a starting framework for directors and practitioners, to be adapted to the specifics of the group.

30/60/90-day checklist for a Belgian group entity:

1. Days 1–30: confirm cash runway; appoint Belgian and foreign counsel; begin COMI evidence file; decide provisionally between coordinated and parallel plans.
2. Days 31–60: file for Enterprise Court protection if needed; reconcile intercompany balances; open structured creditor engagement; draft class structure.
3. Days 61–90: finalise plan and class matrix; run the voting model; prepare recognition filings for foreign decisions; schedule confirmation.

COMI evidence checklist: governance records; banking and treasury mandates; accounting location; operational footprint; third-party-facing materials, all contemporaneous and consistent.

Creditor-voting calculation template: for each class, record total claim value, value voting in favour, percentage in favour, the applicable threshold and the class result; then run the cross-class cram-down analysis against the comparator scenario.

Coordination protocol checklist: identify the coordinator; agree the steering committee; set aligned timetables; define information-sharing and confidentiality; specify intercompany-claim treatment and a dispute-resolution mechanism.

When deciding what to send to the court and what to keep confidential, remember that applications and creditor lists must be complete and accurate, while privileged strategy materials and commercially sensitive negotiation documents are generally retained. Where in doubt about disclosure, take advice before filing.

Worked example and comparison table, EU framework and Belgian application

Consider a three-company structure: a Belgian parent with two foreign subsidiaries. The parent’s COMI is in Belgium on the governance, banking and operational evidence; each subsidiary’s COMI is assessed individually and, on the facts, sits in its own jurisdiction. The group elects a coordinated plan with a Belgian-led main proceeding, parallel protection abroad for the subsidiaries, and a coordination protocol tying the timetables together. Voting proceeds class by class as in the earlier example, and foreign decisions are recognised in Belgium through the relevant recognition pathway. The Enterprise Court route is chosen for the Belgian parent precisely because the COMI evidence makes Belgium the natural and defensible forum.

Conclusion and next steps, what to do this week

Group insolvency Belgium strategy rewards early, evidence-led decision-making. The practical priorities this week are to confirm cash runway, start the COMI evidence file, decide provisionally between a coordinated plan and parallel procedures, and engage counsel across every relevant jurisdiction. The EU framework, the Insolvency Regulation, the Restructuring Directive transposed into Book XX, and ongoing harmonisation proposals, has tightened the COMI test, introduced class-based voting and cram-down, and strengthened recognition, all of which make a coherent cross-border plan more achievable, but only for groups that prepare properly and respect the Enterprise Court’s expectations of candour. The groups that fare best treat COMI evidence, creditor-voting mechanics and recognition planning as a single integrated exercise rather than separate afterthoughts.

For further depth, see the related guidance on COMI determinations in Belgium, recognition and enforcement of foreign restructuring plans in Belgium, and directors’ duties and intercompany claims in Belgian restructurings, and consult the Insolvency lawyers, Belgium (directory) to identify counsel for your matter.

Sources

1. EUR-Lex, Directive (EU) 2019/1023 on preventive restructuring frameworks
2. EUR-Lex, Regulation (EU) 2015/848 on insolvency proceedings (recast)
3. European Commission, Insolvency and restructuring (policy & implementation)
4. CURIA (Court of Justice of the EU), Eurofood IFSC Ltd (Case C-341/04)
5. Belgian Federal Public Service Justice, Belgian Judiciary / Enterprise Courts
6. eJustice Belgium / Belgian Official Gazette (Moniteur belge / Belgisch Staatsblad)
7. RegSol, Central Solvency Register (Belgium)
8. FSMA (Financial Services and Markets Authority, Belgium)
9. National Bank of Belgium (NBB)