The claim for the (judicial) dissolution of a company was a known means of pressure to induce a debtor in bad financial shape to pay the outstanding debt (in priority) after all. However, since the abolition of the capital requirement in a private limited company (‘bv’) with the entry into force of the Companies and Associations Code (hereafter: ‘CAC’), the claim for judicial dissolution due to a drop in net assets below the minimum capital was abolished.
Claim for judicial dissolution due to decrease in net assets
Article 333 of the Companies Code stipulated that ‘any party with an interest or the public prosecutor’s office’ could proceed to demand the dissolution of the former bvba if its net assets fell below EUR 6.200,00, which was the then required minimum capital in a bvba.
The CAC did not reinstate this possibility. This was justified by the former Minister of Justice on the basis that the claim could only be instituted if the net assets fell below EUR 6,200.00, which was considered to be very low, as well as on the basis that the court could impose a deadline on the company in question to remedy this shortcoming. Published case law showed that the claim was rarely brought.
The possibility of bringing an action for dissolution in case of insufficient net assets was restored for the public limited company, however.
Alarm bell procedure?
The alarm bell procedure regarding the bv(ba) from Article 332 of the Companies Code was, however, taken up again by the CAC, albeit in a modified form. The new regulation was included in article 5:153 of the CAC.
Because of the abolition of the capital requirement, the criteria in the old article, which were linked to share capital, could no longer be maintained.
The new regime is that the general meeting should be convened by the governing body when the net assets threaten to become negative or have become negative, or when it is no longer certain (according to foreseeable developments) that the company will be able to settle its debts as they fall due during the next 12 months.
Where applicable, the general meeting should deliberate on a possible dissolution of the company and, if it decides not to dissolve the company, what measures to propose to preserve the continuity of the business. These measures must be set out in a special report.
Claim for judicial dissolution for failure to file annual accounts
Article 182 of the Companies Code contained a regulation allowing an action for dissolution to be brought against a company that failed to file its annual accounts on time. This regulation was incorporated in full by the CAC in Article 2:74.
Specifically, any party with an interest or the public prosecutor can bring this action, or the court can pronounce the dissolution after notification by the chamber for companies in difficulty.
However, if the action is brought by a party with an interest or by the public prosecutor, the court is obliged to grant the company in question a regularisation period of at least 3 months in order to fulfil its administrative obligations anyway.