Company Directors as an 'Enterprise' in Belgium: A Legal Conundrum?

Abstract

Since the reform of the enterprise concept in Belgian company law in 2018, there has been a lot of debate in legal doctrine and jurisprudence about the question of whether company directors can be qualified as enterprises in their own right. This article examines the qualification of company directors as enterprises under Belgian law, a question with significant legal and practical consequences. The classification matters because natural persons who qualify as enterprises gain access to bankruptcy proceedings and the included fresh start benefits. In the Belgian Code of Economic Law (CEL), two main conditions are generally identified for natural persons to be considered enterprises: they must act in a self-employed capacity and exercise a professional activity. However, this enterprise concept has sparked significant debate in both legal doctrine and jurisprudence, more specifically about whether a third autonomous condition exists that the individual must also have their own organization. The Belgian Court of Cassation has addressed this issue in three judgments concerning company directors, holding that a director must indeed demonstrate an autonomous organization to be qualified as an enterprise. This case law effectively introduces a new condition not explicitly foreseen in the legislation, which considerably complicates the qualification as an enterprise for all natural persons.