The new Belgian company law entails a large number of changes in the legal landscape. To what extent do these changes affect the liability of the shareholder?
General principles
The liability of the shareholder depends on the type of company. For example, there is unlimited joint and several liability on the part of the shareholder with regard to the partnership and the general partnership (V.O.F.). Even in the case of a limited partnership, a shareholder can be jointly and severally liable without limitation in the event that he is a limited partner. Commanding or ‘silent’ partners, on the other hand, are only liable for their contribution.
Shareholders always have a limited risk if they hold shares in a public (stock listed) limited company, a private (equity) limited company or a cooperative company. When the company fails, only their investment is lost.
Exception: voluntary breakthrough
A first exception to the limited liability of the shareholder can be found in the event of a so-called ‘voluntary breakthrough’. In the event of a voluntary breakthrough, the shareholder voluntarily guarantees the activities of the company. Examples of this are the guarantee provided by a shareholder or the provision of a guarantee. However, such a voluntary breakthrough may have undesirable consequences if the shareholder wishes to discontinue it. A sudden withdrawal may, in certain cases, give rise to liability.
Exception: legal breakthrough
A second exception to the principle of the limited liability of the shareholder is the ‘legal breakthrough’. In a number of cases, the Belgian legislator considered it opportune to extend the liability of the shareholder. These cases are in particular the founder’s liability, the obligation to make full payment, if the shareholder acts as de facto director of the company and in the event of the dissolution of the company.
If the company is in a state of bankruptcy within three years of its incorporation, the founders of the company can be held jointly and severally liable for the payment of the debts arising from the commitments entered into by the company. In this case, the judge will assess the financial plan submitted by the company upon incorporation. If it follows from this that the initial capital was clearly insufficient to carry out the intended activity for at least two years after incorporation, it will decide on the liability of the founder. Creditors of the company can then, on the basis of article 1382 of the Civil Code, hold the founders liable under the traditional non-contractual liability formula: fault (insufficient initial capital), damage (resulting from the bankruptcy) and, of course, a causal link between the two.
If not all the shares are fully and unconditionally paid up, the founders of a private limited company are jointly and severally liable to pay up in full to each interested party. The founders of a public limited company are jointly and severally liable for, among other things, the actual payment of the minimum capital of 61,500.00 EUR. In addition, the board has the obligation to request payment in full from the shareholders. In the event that the shares are transferred, it is the joint obligation of the transferor and the transferee to make the payment in full. Of course, if the transferor is called upon to pay up the shares in full, he can then exercise recourse against the transferee.
A shareholder who acts as de facto director in the company, directly or indirectly acquires power to manage the company. Where appropriate, this shareholder may incur director’s liability since the introduction of the new company law. After all, the new company law states that anyone who has ‘actual management authority’ is liable for errors committed in the performance of their duties.
Conclusion
Depending on the company form of the company in which the shares are held, the shareholder has to pay attention to a number of things in order to avoid unwanted liability. Shareholders with shares in a private limited company are best protected against such unwanted liability, but shares in a private limited company are obviously not always that profitable or even transferable.
