Bankruptcy and Term of Appeal

In a cassation judgment dated September 28, 2023 (No. C.23.0043.N), the Court of Cassation overturned a decision of the Ghent Court of Appeal from September 5, 2022, and referred the case to the Antwerp Court of Appeal. The dispute concerned the deadline for filing an appeal against a judgment in which the plaintiff's opposition to a default judgment of bankruptcy declaration was declared unfounded.

The underlying facts were as follows:

  • The plaintiff was declared bankrupt by default judgment on March 8, 2021, by the Ghent Enterprise Court, Ostend division;
  • The plaintiff filed an opposition to the March 8, 2021 judgment on March 19, 2021;
  • The plaintiff's opposition was declared unfounded by judgment on July 1, 2021;
  • The judgment on opposition of July 1, 2021, was served upon the plaintiff at the request of the curator on August 16, 2021;
  • An excerpt of this judgment was published in the Belgian Official Gazette on December 13, 2021;
  • The plaintiff filed an appeal against the judgment on opposition of July 1, 2021, by petition dated December 27, 2021, registered on the appropriate roll on December 28, 2021.

The plaintiff argued that the deadline for filing an appeal was governed by Article XX.108, § 3, fourth paragraph, of the Economic Law Code (ELC), which prescribes a fifteen-day period from the announcement of the judgment. However, the appellate judge ruled that the appeal period was governed by common procedural law, specifically Articles 53, 54, and 1051 of the Judicial Code, which prescribe a one-month period starting after the service of the judgment on opposition.

The Court of Cassation ruled that the appellate judge had not justified his decision according to the law, and therefore it annulled the contested decision.

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