1. The action of public authorities is subject to various general principles of law. One of these principles is the principle of continuity of the public service, which seeks to ensure the permanence of public institutions and of their functioning.
By virtue of this general principle, the assets of a public entity may not be the subject of enforcement measures, in so far as those measures effectively hinder the continuity of the public service. This is what is known as the privilege of immunity from enforcement of public authorities, enshrined in Article 1412bis of the Judicial Code as regards attachments. This provision states that the assets of legal entities governed by public law are, in principle, immune from attachment.
The immunity from enforcement of public authorities does not concern only attachment, but also prohibits a third party from substituting itself for the administration in order to perform an obligation at the administration's expense (Cass. 26 June 1980, P. 1980, I, p. 1381), or a judgment from taking the place of an authentic deed of sale of an asset of the administration (Cass. 24 October 1958, Pas., 1959, I, p. 202).
Article 1412bis of the Judicial Code applies only to "legal entities governed by public law that carry out an organic public service" (Civ. Brussels (attachments) 16 September 1996, J.L.M.B. 1997, 924). The exercise of a task of general interest (a functional public service such as education) is not sufficient, although some authors dispute this.
2. The immunity from enforcement is not, however, absolute, and cannot prevent enforcement measures which, in concreto, are not such as to hinder the continuity of the public service.
Article 1412bis of the Judicial Code thus provides for two exceptions to the privilege of immunity from attachment, namely the possibility of attaching:
- the assets that appear on a list of attachable assets, drawn up by the public authority itself. Where this list is drawn up, it must be available at the seat of the authority referred to in Article 42 of the Judicial Code.
There is no obligation to draw up this list: Ghent (14bis ch.) 23 January 2007, R.D.J.P. 2007, no. 4-5, 304. - in the absence of such a list, or if the assets that appear on it are insufficient to satisfy the creditor, "the assets that are manifestly not useful to those legal entities for the exercise of their task or for the continuity of the public service".
It is therefore only possible to attach assets other than those appearing on the list if no list exists.
Moreover, any doubt as to the public allocation of the asset operates to the benefit of the public authority.
Furthermore, where a legal entity governed by public law is subject to an attachment, it may lodge an objection, by way of summons, before the attachments judge, within one month of the writ of attachment. This remedy has suspensive effect.
The public authority may also require the attaching creditor to redirect proceedings onto other assets, provided that they are in Belgium and capable of satisfying the creditor. In the event of disagreement, an appeal is possible before the attachments judge.
3. Case law applies this principle of immunity from enforcement broadly.
Thus, it has been held:
- that the immunity applies to all public institutions and protects even against precautionary attachments (Liège 23 November 1989, J.L.M.B. 1990, 65, note P.H.);
- that the court may not decide that the attachment does not hinder the continuity of the public service solely on the basis of the modest amount of the debt and the reasons why this debt was not voluntarily paid by the public entity (Cass. (1st ch.) RG C.97.0333.F, 28 January 1999 (Belgian State / Gérard));
- it is for the attaching creditor to prove that the attached assets are manifestly not useful to those legal entities for the exercise of their task or for the continuity of the public service (Brussels (17th ch.) 26 June 2006, J.L.M.B. 2007, no. 15, 612);
- a bank account, with no particular allocation of the funds it contains, serves, by its very nature, the day-to-day management of the assets of its holder (Brussels (17th ch.) 26 June 2006, J.L.M.B. 2007, no. 15, 612) (confirmed by Civ. Brussels (attachments) (Dutch-language) 19 January 2018, TIBR 2019, no. 1, RS-14, and Civ. Brussels (attachments) 19 February 2001, J.L.M.B. 2001, 916; Civ. Brussels 10 February 1998, R.G.D.C. 2001 (summary), 120). It is inconceivable that a public service could do without its bank assets, which are necessary for the exercise of its public task, whereas a garnishment produces an effect of total unavailability — even if, in the present case, the garnishee limited the freeze to an amount sufficient to cover the grounds of the attachment on a separate account in order to preserve the rights of the parties, and taking account of the principle of continuity of public services. In doing so, the garnishee carries out a form of deposit not provided for by the Judicial Code, a form which cannot disregard the principle of the total unavailability characteristic of garnishment (Brussels 3 October 1996, J.L.M.B. 1997, 1239);
- the funds held by the NBB for the State — and in particular the revenues — in its capacity as the State's cashier, cannot be considered "manifestly not useful" (Civ. Brussels (attachments) 15 May 2003, Dr. banc. fin. 2003, no. 6, 381);
- a judicial officer who receives an assignment manifestly contrary to the law must refuse that assignment and is liable in tort towards the party subject to the attachment, which entails a joint and several conviction with the principal (Civ. Brussels (attachments) (Dutch-language) 19 January 2018, TIBR 2019, no. 1, RS-14);
- where it is apparent from the accounting documents filed by the church council that the income available to it is wholly insufficient — which explains why the municipality is required, pursuant to the Imperial Decree of 30 September 1809, to provide that church council with the supplement necessary for the performance of its task — it cannot be accepted that the attached assets "are manifestly not useful" to that church council for the exercise of its task (Civ. Namur (attachments) (9th ch.) 26 September 2008, J.L.M.B. 2010, no. 9, 425).
4. What can be attached?
The assessment of usefulness depends on the specific circumstances. The usefulness to be taken into consideration is a direct usefulness and not an indirect one (Liège 21 March 2019, J.T. 2019, no. 6778, 494).
It is possible, in particular, to attach:
- long-term savings certificates, which manifestly have no direct usefulness for the exercise of the public service task of the debtor subject to the attachment (Liège 21 March 2019, J.T. 2019, no. 6778, 494);
- paintings attached in a CPAS retirement home (Liège 13 June 1996, J.L.M.B. 1996, 1650) (Civ. Ypres (attachments) 24 May 1991, R.G.D.C. 1992 (summary), 90);
- paintings from a museum's reserve collection (Civ. Brussels (attachments) 3 March 2000, R.W. 2000-01, 1206; Civ. Brussels (attachments) 1 October 1996, R.R.D. 1997, 219, note DE HEMPTINNE, M.) (see, to the contrary: Civ. Brussels, 3 March 2000, R.W. 2000-01, p. 1206);
- an enforcement attachment carried out in the hands of the Crédit communal on term accounts belonging to the municipality of Essen is valid. Immunity from enforcement cannot be applied in an absolute manner (Civ. Brussels (attachments) 20 December 1990, R.W. 1991-92, 299, note VAN VOLSEM, F., VAN HEUVEN, D.);
- the proceeds of the sale of a disused aerodrome, because the administration does not declare that the proceeds of this sale must receive a specific urgent allocation (Brussels 19 November 1997, R.W. 1997-98, 1290);
- the private assets of a municipality (Civ. Hasselt (attachments) 7 February 1989, R.W. 1989-90 (summary), 995; R.G.D.C. 1991, 93). Note that, according to legal scholarship, immunity from attachment is not to be confused with the distinction between the public and private domains: what matters is the specific and direct usefulness of the asset to the public service;
- an abandoned holiday centre (Civ. Hasselt (attachments) 22 March 2005, R.W. 2008-09, no. 8, 331).
Where it is not possible to realise assets, the attaching creditor may ask, in interim proceedings, that the authority be ordered to provide it with a list of assets capable of being attached (Antwerp (5th ch.) 6 March 2001, R.W. 2001-02, 604).
In conclusion, it can be seen that it is difficult to carry out enforcement proceedings against public authorities. They benefit from an immunity regime intended to protect their assets and resources, in order to ensure the continuity of the public service.
Brussels, 27 January 2022,
Gauthier ERVYN
ge@resolved.law
www.resolved.law
