The Royal Decree of 9 March 2022 laying down detailed rules concerning the obligation for economic operators to use electronic invoicing in the context of public procurement and concession contracts makes electronic invoicing mandatory in public procurement and concession contracts.

At the federal level, the Federal Public Service Strategy & Support (FPS BOSA), which is responsible for digital transformation in Belgium, has recognised legal existence of electronic invoicing in 2013.

Since the transposition into Belgian law^[1] Directive 2010/45/EU, electronic and paper invoices are to be equivalent. Regardless of the medium, an invoice is considered to be an invoice if it contains the three basic characteristics following:

1. authenticity (it has been issued by the supplier of goods or services),
2. integrity (its content has not been modified since the time of its issue) and
3. readability (the information must be easily decipherable and understandable to the human eye).

Invoices, whether in digital or paper form, have the same value.

There are now specific rules on electronic invoicing in public procurement and concession contracts.

Among these rules, deriving mainly from Directive 2014/55/EU and the Act of 17 June 2016 on public procurement, there is the rule that the obligation to send an invoice electronically, contained in Article 14/1 of the Act.

The decree of 9 March 2022 regulates the entry into force of certain provisions of the law of 17 June 2016 on public procurement, including article 14/1 containing the obligation to send an invoice electronically. This article provides for an obligation for economic operators to send their invoices electronically to contracting authorities.

Article 1^er of the Order provides for a progressive entry into force of the new rules according to the type of public contract as follows:

• From the 1 November 2022 for contracts and concessions with an estimated value equal to or above the European advertising threshold[2] ;
• From the 1 May 2023 for contracts and concessions with an estimated value of €30,000 or more;
• From the 1 November 2023 for contracts with an estimated value of €3,000 or more.

The terms "invoices in an electronic manner" are defined as follows: " an invoice that has been issued, transmitted and received in a structured electronic form that allows it to be automatic processing and electronics "(art 2, 58° of the 2016 Act; emphasis added).

It appears from the preparatory work for the law of 7 April 2019 that this definition excludes a .PDF file, in particular on the grounds that a .PDF file does not meet the automatic processing functionality.

It should be added that there are two exceptions to this obligation of electronic invoicing in art. 14/1 of the 2016 law.

1. The first exceptionThis obligation does not apply to public contracts with an estimated value is less than or equal to €3,000 (excluding VAT).
2. The second exceptionThis obligation does not apply to autonomous public enterprises (EPAs) within the meaning of Article 54/1 of the Law of 21 March 1991 on the reform of certain public economic enterprises or to persons with special or exclusive rights.

For more information, please contact Jean LAURENT (jean.laurent@cew-law.be), David SZAFRAN (david.szafran@cew-law.be) and Charline SERVAIS (charline.servais@cew-law.be ), lawyers, CEW & Partners

[1] Art. 60 of the VAT Code, replaced by Art. 36 of the Law of 17 December 2012 amending the Value Added Tax Code (I), M.B. 21 December 2012, essentially transposing Council Directive 2010/45/EU of 13 July 2010 amending Directive 2006/112/EC on the common system of value added tax, as regards the rules on invoicing.

[2] This threshold varies according to the type of contract and is indicated in Article 11 of the Royal Decree of 18 April 2017 on the award of public contracts in the traditional sectors, as well as in Article 4 of the Royal Decree of 25 June 2017 on the award and general rules for the execution of concession contracts.