Proposition 53K2800

Projet de loi modifiant le Code des sociétés, concernant les garanties des créanciers en cas de réorganisation du capital.

General information ¶

Authors

CD&V Leen Dierick
LE Joseph George
MR David Clarinval, Olivier Destrebecq, Marie-Christine Marghem
Open Vld Frank Wilrycx
PS | SP Olivier Henry
Vooruit Bruno Tuybens

Submission date

May 7, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

share capital claim organisation

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR VB

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Discussion ¶

June 12, 2013 | Plenary session (Chamber of representatives)

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by Mr. Karel Uyttersprot, rapporteur, refers to his written report.

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, Commercial Companies have various tools to reorganize their capital. They may use the repayment of capital of shareholders, split the company into two separate entities, make contributions of universals or branches of activities or even reduce their capital. These transactions may have an impact on the reduction of the joint liability of their creditors.

The law provides for the creditors of those companies whose claim has not yet expired various structural protective measures. However, it appears that these legal protections are not or hardly applicable to creditors who have a claim challenged by the company in a lawsuit.

The current mechanisms are as follows: the constitution of a security on the basis of the current article 684 of the Corporate Code; the solidarity mechanism provided for by article 686 of the Corporate Code; the Paulian action that allows creditors to attack on their behalf the acts committed by their debtors in fraud; the action in liability of managers for lack of management or even, the action in nullity.

Unfortunately, it must be noted that, given the interpretations of the case-law and the abundant doctrine, none of the existing legal mechanisms allows creditors of a claim contested before a court or still under arbitration, a claim whose amount may be very high, to guarantee in a conservative manner the effective payment of the said claim. In the face of this impossibility, the authors of this bill considered that legislative intervention was necessary to protect the rights of creditors holding a claim under trial or arbitration in situations where the legal adjustments of the capital of the company result in a weakening of the joint liability of creditors.

To this end, we have therefore proposed to make applicable some existing protective mechanisms such as the constitution of a security or the solidarity mechanism in favour of the creditor whose title is contested in court, as well as to allow him to retain his chances of payment not only in the case of division of the company but also in the case of reduction of capital.

However, in order to prevent abuses from occurring in the opposite direction, it is required for access to these protections that the dispute concerning the claim is already initiated before the planned legal transaction, whether it is the division of the company or the reduction of capital. In this way, a first check by the judge or arbitrator will already be carried out.

With regard to the granting of security, any creditor has the right to request security from his debtor in order to guarantee the payment of his claim. If an agreement between the two parties is not possible, then it is the judge who is called to settle the dispute. The bill only applies this principle by providing a legal basis for creditors holding debts resulting from a claim against the divided company, brought in court or by arbitration.

In practice, this creditor will ask the company, which remains its debtor, to give him a guarantee. If the latter refuses, the creditor will then have the possibility to claim this security before the judge, who will assess the appearance of right of his disposal, i.e. to what extent his claim regarding the claim is likely to be founded. It is only to this extent that it will allow the granting of security. In case of doubt, he can very well refuse purely and simply.

This review by the judge at the time of the request for security shall be supplemented by that carried out from the hearing by the judge brought to settle the debt dispute or from the settlement meeting when arbitration is used.

With regard to the solidarity mechanism, it is exactly the same approach: giving a legal basis to the judge or arbitrator brought to settle the dispute on the well-founded debt, to solidally condemn, if necessary, the two entities arising from a division of the company. It is obviously only when there is a condemnation to pay the debt that the solidarity mechanism will play its role. When the decision on the well-foundedness of the debt is made in force of a judged thing, it will then be considered as certain and enforceable and the current provisions of the Code of Companies on solidarity and security will apply to it.

It is during the phase preceding this moment, which unfortunately can be quite long given the slowness of the current judicial system, that the good faith creditor whose debt is contested in whole or in part does not have any mechanism to preserve his chances of being paid.

The purpose of this bill is to give it two preventive mechanisms that can, in the end, produce their effects only under the control of the judge or arbitrator. This is to save certain guarantees regarding the debtor’s solvency and to avoid that, taking advantage of the ongoing litigation, he does not legally organize a structure completely emptying the property called to pay the disputed debt.

Finally, these mechanisms are preventive and do not hinder or hinder the change planned by the company: the division or the decrease of capital. They simply allow the creditor of good faith to protect himself against legal transactions performed in fraud of their rights, which is impossible for them in the current state of jurisprudence. They will in no way prevent a cessation of activity. Indeed, in matters of transfer of business, whether in the context of business continuity or not, it is common practice that the seller guarantees his buyer on the liability and ongoing disputes of the transferred legal person.

I know that this may sound a bit technical, but this bill is very concrete and I would like to thank my colleagues in the majority, MM. Henry, Tuybens, Wilrycx, George and Mrs Dierick for their support through the co-signature of this proposal. I also thank my colleagues Destrebecq and Marghem for their co-signature. I would like to thank in particular the Minister, who has also supported this matter from the beginning, as well as the administration, who also participated in the preparatory work.

This bill does not cost a single euro to anyone. It provides additional rights for creditors and aims to combat fraudsters who, through what is commonly known as empty shells, used the current legislation to evade their responsibilities.

We can only rejoice in this text.

I would like to thank my colleagues from the opposition parties who voted the text in the committee.

Nov. 7, 2013 | Plenary session (Chamber of representatives)

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Mr. Speaker, colleagues, this is a technical adjustment by the Senate to a bill that was approved here before the recess. It was unanimously accepted in the committee. For the rest, I refer to the written report.