The Constitutional Court rules that the late discharge of bankrupts' debts is unconstitutional

The Constitutional Court rules that Article XX.173, § 2, of the Code of Economic Law, which prevents a bankrupt natural person from obtaining the discharge of the balance of their debts after the expiration of the three-year period but before the closure of the bankruptcy, is contrary to Articles 10 and 11 of the Constitution. Judgment No. 55/2026 of April 23, 2026, rendered under docket 8465, is published in the Belgian Official Gazette of October 7, 2026, under reference [C − 2026/006193], p. 53359. The decision concerns bankruptcies opened as of September 1, 2023.

The Court was seized of three preliminary questions posed by the Enterprise Court of Ghent, Bruges division, by judgment of April 7, 2025, the copy of which reached the registry on April 14, 2025. They concerned Article XX.173, § 2, of the Code of Economic Law, as replaced by Article 233 of the Law of June 7, 2023, transposing Directive (EU) 2019/1023 on preventive restructuring frameworks, debt relief and insolvency proceedings.

This provision governs the discharge of the balance of debts for bankrupt natural persons. Since the reform, the discharge is in principle automatic upon the closure of the bankruptcy, without a formal request from the bankrupt party, but any interested party — trustee, public prosecutor — may request its refusal for three years.

A two-pronged mechanism

The Court rules as a matter of law that Article XX.173, § 2, does not violate Articles 10 and 11 of the Constitution insofar as it does not allow the bankrupt party to request the court to rule on the discharge before the expiration of the three-year period referred to in Article XX.173, § 3.

Conversely, the same provision violates these articles insofar as it does not allow the bankrupt party to request the court to rule on the discharge after this three-year period, but before the closure of the bankruptcy. For the remainder, the preliminary questions do not require an answer.

Jurisprudential precedents

The Court recalls two previous judgments relating to the same mechanism:

• Judgment No. 62/2021 of April 22, 2021 (ECLI:BE:GHCC:2021:ARR.062): the previous version violated Articles 10 and 11 insofar as the bankrupt party who did not file their petition within three months of the publication of the bankruptcy judgment irrevocably lost the right to discharge.
• Judgment No. 151/2021 of October 21, 2021 (ECLI:BE:GHCC:2021:ARR.151): annulment of Article XX.173, § 2, to the same extent.

The Law of June 7, 2023, removed the requirement for a formal request for discharge, while maintaining the possibility for the trustee or a third party to oppose it.

A gap to be filled and a transitional measure

The Court finds that, once the refusal of the discharge has become impossible, nothing justifies the bankrupt party waiting for the closure of the bankruptcy to benefit from the effects of the discharge. It is up to the legislator to fill this gap.

Pending this intervention, bankrupt natural persons must be able to request the court to rule on the discharge by analogy with the procedure provided for in Article XX.173, § 2, paragraphs 2 to 4, prior to its replacement. The third question, relating to the difference in treatment between bankruptcies opened between May 1, 2018, and August 31, 2023, and those opened from September 1, 2023, is dismissed: the nature of a new rule is to establish such a distinction.

The judgment was rendered by Presidents Joséphine Moerman and Pierre Nihoul, Judges Michel Pâques, Danny Pieters, Willem Verrijdt, and Kattrin Jadin, as well as President Emeritus Luc Lavrysen, who presided, assisted by Clerk Frank Meersschaut.

The judgment therefore grants bankrupt parties whose proceedings are prolonged the possibility of having their discharge recognized without waiting for the closure, upon the expiration of the three-year period. The discharge remains, however, without effect on alimony debts and those resulting from the obligation to repair damage related to the death or injury to the physical integrity of a person.

Source: Moniteur belge of October 7, 2026, excerpt from judgment no. 55/2026 of April 23, 2026, docket 8465, [C − 2026/006193], p. 53359.