Unpaid as a subcontractor: your options

You are working on a construction project in Belgium. You have fulfilled all your obligations, but you have not received a payment. As a (foreign) subcontractor, you are not alone in this situation. The Belgian law offers you various options to ensure payment of your invoice. We list your main options below.

1. Direct claim: leapfrog

If your invoices remain unpaid, you can contact your client’s client directly. Instead of only contacting your contractual partner, as a subcontractor you can request payment directly from their client (often the principal). This is known as a “direct claim”.

This option is available as long as the principal still owes an amount to their contractor (your contractual partner). Contrary to what was previously thought, a direct claim does not require a summons or legal proceedings. The claim can be made by registered letter. You ask the principal to pay you as a subcontractor as a matter of priority. Once the claim has been made, the principal can no longer make payment in full discharge to the intermediate contractor.

Such a direct claim is clearly a powerful tool for the subcontractor, as it gives him a second debtor based on the law. It is important to note that the principal can invoke certain defences. For example, if the work was not carried out in accordance with the contract or was delayed, the builder can call on these elements to refuse payment.

2. Temporary suspension of work

As a subcontractor, you can temporarily suspend your own obligations as long as your client fails to meet their payment obligations. In practice, this has proven to be a useful means of exerting pressure. It is important, however, that you apply this proportionately. You must also not be the first to fail to perform your obligations: your client must first fail to fulfil their (payment) obligations. Only then are you entitled to suspend performance yourself.

3. Special privilege of the subcontractor

In the event of your Belgian client’ bankruptcy or other cases of concurrence, Belgian law provides the subcontractor with a special privilege on the claim that your client has against the principal.

As a subcontractor, you are therefore entitled to priority payment of the amount that the principal still owes your client for the project in question.

Please note: this privilege applies for five years after the invoice date. You must therefore act in a timely manner to enforce it.

4. Bank guarantee as additional security for payment

You can always consider incorporating additional security into your contract. Just as your client can request a bank guarantee, surety or retention on invoices to guarantee the proper performance of your obligations, you can also request a bank guarantee or, for example, a mother guarantee/group guarantee to ensure that your client fulfils their payment obligations.

What does this mean for you as a subcontractor?

As a subcontractor, Belgian law gives you several rights and safeguards in the event of non-payment:

• You can contact the principal directly;
• You may suspend your work as long as payment is not made;
• You can include a bank guarantee in advance;
• You enjoy protection in the event of bankruptcy through a special privilege.

Are you dealing with an unpaid invoice in Belgium?

Are you confronted with a main contractor who is not paying? Do not wait too long to take action. As a subcontractor, you have a number of tools at your disposal to obtain payment.

Feel free to contact your advisor at Van Havermaet. We are ready to support you in this matter.