Cass. 14 februari 2025 (C.23.0150.N/1
Artwork. XX.227 § 1 Wer (about 'Wrongful Buying and selling') was launched by legislation of 15 April 2018 (which made adjustments to Ebook XX Wer). The foundations of conduct that this text imposed was not new. Not less than for the reason that UNAC judgment (Cass. 12 Feb 1982), persevering with an organization may be illegal if there may be apparently no prospect that the chapter may be averted. The brand new merchandise framed in a extra basic (however actually not a complete) relocation of legal responsibility guidelines from firm legislation to the insolvency legislation. This for IPR causes: the Insolvency legislator did this within the prospect that the corporate laweter would enable free alternative of the relevant firm legislation. That makes firm legislation much less appropriate if headquarters of necessary provisions of third events.
As well as, the claimant property particularly was helped when it comes to the proof of harm and causal hyperlink. To the mannequin of what has been in place since 1978 for apparently gross error, the court docket was given the authority to charged the entire or a part of the deficit to the liable (factual) administrators.
What if the illegal continuation started underneath the previous legislation (case legislation rule based mostly on Article 1382 of the Dutch Civil Code) and was continued underneath the brand new legislation? The Courtroom of Cassation dominated on this in a judgment of 14 February 2025 (C.23.0150.N):
“1. On the idea of Article XX.227, § 1, if, within the occasion of chapter of an organization, the money owed can surpass the advantages, the present or former administrators, managers, day by day administrators, members of a supervisory board or of a supervisory board, in addition to all different individuals who’ve been declared in favor of the entire or not or part of the entitlement, personally or solely the authority of the entitlement or an individual in favor of the entitlement and solely the authority of the corporate money owed of the corporate within the quantity of the deficit in opposition to the property, if:
a) at a given second previous to the chapter, the particular person involved knew or ought to have recognized that there was apparently no affordable prospect to take care of the corporate or her actions and keep away from chapter;
b) the particular person concerned had one of many above -mentioned qualities at the moment; and
c) the particular person involved from the second referred to in A) didn’t act as a usually cautiously and punctiliously director acted in the identical circumstances.
2. Pursuant to Article 76, first paragraph, of the Legislation of 11 August 2017, insertion of Ebook XX “Insolvency of corporations”Within the Code of Financial Legislation, and containing definitions particular to Ebook XX and of the legislation enforcement provisions particular to Ebook XX within the guide I of the Code of Financial Legislation, the provisions of Ebook XX Wer entered into drive on 1 Could 2018. Forces of the aforementioned legislation have been taken from the Insolvenie Act.
3. It follows from the coherence of those provisions that an organization administrator is chargeable for the continuation of an apparently misplaced deficitary enterprise if this error continued after the entry into drive of Article XX.227 WER. The circumstance that the error commences earlier than the entry into drive of this provision doesn’t have an effect on that.
4. The attraction court docket determines and judges:
- the plaintiff was held chargeable for the inaccurate continued firm referred to in Article XX.227 WER whereas he knew or ought to know that that firm was misplaced with out legislation, particularly by repeatedly refusing to pay the lease of BV () with out developing a reserve or taking different faults, which gives the fiction of the corporate that has been featured;
- That error continued on 1 August 2018;
- BV () was declared bankrupt on 10 September 2018.
5. The attraction choose who thus judges that the error accused of the plaintiff has continued till after 1 Could 2018, date of entry into drive of Article XX.227 WER, doesn’t grant this authorized provision retroactively and doesn’t apply it to info that date from earlier than the entry into drive.
6. The half can’t be assumed. The query proposed by the plaintiff, which wrongly assumes that the info accused of the claimant are totally dated earlier than the entry into drive of Article XX.227 WER isn’t said. ”
Thijs Vancoppernolle argues in Intertemporal legislation (Intersentia, 2019) for a distributive software of previous and new legislation within the occasion of a steady legal responsibility -increasing reality (p. 749). Nonetheless, it gives an exception if the brand new legislation should be utilized to all injury from its nature (p. 755). This resolution appears to us to be relevant right here as a result of the brand new regulation before everything presents a novel when it comes to a comprehension that deviates from the widespread guidelines concerning causality.
The Courtroom has subsequently opted for a dogmatically accountable rule with pragmatic penalties: it’s a rule that may be simply utilized.
The Courtroom of Enchantment is correct to silence that the legislation of 15 April 2018 foresaw a cesuur, or whether or not the concerned insolvency process was opened earlier than or after the entry into drive (artwork. 272-273). That rule suits procedural guidelines (which made nearly all of the legislation involved) however within the occasion of legal responsibility guidelines, the time of the error should be decisive.
Joeri Vananroye
