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.