A more modern law of evidence for enterprises as of 1 November 2018

A first reform came into force on 1 November 2018. The Corporate Law Reform Act introduced article 1348bis, 'Proof by and against enterprises’ in the Belgian Civil Code.

Hence, on 27 April 2018 the Belgian Government approved a preliminary draft of a law that would later add a special chapter, Book 8 'Proof', to the Belgian Civil Code.

Said new Book 8 contains both civil and commercial laws of evidence.

The goal was to clarify the existing law of evidence and make it more flexible.

We have listed the most important elements of this new article for you.

1. Enterprises can provide evidence by any means of right

As of 1 November 2018 every enterprise can provide evidence by any means of right, unless otherwise specified by the law.

We have reported before how company law was reformed to redefine 'enterprise' in a broader way.

An enterprise can be any self-employed individual, any legal entity and any other organisation without legal personality, unless it either did not and are not intending to distribute profits.

The following groups can be categorised as enterprises:

• managers, directors and those practicing a liberal profession;
• associations and foundations, even if they have no economic purpose. Legal persons governed by public law are excluded, as are the State and its decentralised departments;
• partnerships. De facto associations are not enterprises as defined by the law.

Every enterprise is therefore subject to the free taking of evidence, by use of all means of commercial law, including witnesses and presumptions.

This also means that 'all contemporary means of proof of the digital society', more specifically e-mails and text messages, etc., can also be used. However, they will have to meet certain requirements specified by law.

This free argumentation only applies when the case is against another enterprise. If the case is against a defendant who is not an enterprise, the rules of evidence of civil law must be obeyed.

2. Using the accounts and invoices as proof

The requirement of accounts being kept 'regularly' is removed. This also allows irregular accounting to serve as evidence between or against enterprises.

It is up to the judge to decide whether he accepts accounts as evidence.

He may order full or partial disclosure of the accounts, while imposing confidentiality measures.

An invoice accepted by an enterprise will now provide evidence against this enterprise as of 1 November 2018. Enterprises that receive an invoice they want to dispute, should therefore do so as soon as possible.

3. Upcoming reforms in the law of evidence in the new Belgian Civil Code

The main reform will concern the raising of the threshold regarding the requirement of documentary evidence from €375 to €5000. This means that no written evidence will be required for disputes worth less than €5000.

The consequence is that for many common transactions the free system of proof will be used, which means that an e-mail or text message can suffice as a binding agreement.

Should you have any questions about this matter or require assistance, do not hesitate to contact our office.