Cass. 27 juni 2025 (C.24.0081.N)
A couple of yr in the past, on June 28, 2024, I defended my thesis Concerning the abuse of the retirement and exclusion of shareholders. The rationale for this nostalgic birthday celebration (and the related product placement) is a judgment of the Court docket of Cassation on the eve of this birthday (Cass. 27 June 2025, C.24.0081.N – See textual content beneath). The topic? One of many evergreens about which the court docket creates extra discussions than it resolves, specifically the shift of the reference date.
The Antwerp Court docket of Attraction determined in a judgment of 11 Might 2023 to not shift the reference date on the premise of the next causes: that “The Court docket of Attraction (by enchantment) doesn’t undertake circumstances that led to the declare for the takeover or habits of the events because of these claims, which influenced the worth of the shares”.
The context of the judgment seems briefly from the hooked up petition in cassation. The corporate was beneath provisional administration for some time. After the termination of that administration, one of many shareholders would solely have made all the required efforts to avoid wasting the corporate (and by extension the corporate group) of the chapter.
A couple of weeks after the termination of the provisional administration, an exclusion declare was subsequently established by shareholder A who was answered by a counterclaim in retirement by shareholder B. Shareholder A argued that the reference date needed to be shifted to the termination of that preliminary administration as a result of it had the identical acts of the refund of the Utility. Shareholder B progressed because the reference date the date of the switch of the shares. The Antwerp Court docket of Attraction awarded the retirement declare and likewise adopted shareholder B earlier than the reference date on the premise of the aforementioned causes.
Shareholder A launched cassation enchantment in opposition to this judgment. In essence, the cassation treatment signifies that the Court docket of Attraction would have wrongly, at the very least implicitly, supported on the premise of the criterion for the shift of the reference date because it utilized beneath the W. Venn. Pursuant to a judgment of the Court docket of Cassation of 31 March 2023 (see additionally right here), that criterion will be summarized as follows: “The court docket can solely use a distinct reference date than the date of switch of possession if he determines in concrete.”
In accordance with shareholder A in artwork. 2:69, third paragraph WVV, nonetheless, have expanded the opportunity of shifting the reference date. The one new criterion can be {that a} valuation on the date of switch of the shares would result in an “manifestly unreasonable consequence”. This is able to due to this fact result in the truth that the judicial evaluation house is larger beneath the WVV than beneath the W. Venn.
The Court docket of Cassation finds that the WVV does certainly apply to the crossed exclusion and retirement declare that’s earlier than us. The Court docket then follows the cassation software of shareholder A and states that the rejection of the reference date shouldn’t be purely on the premise of the criterion beneath the W. Venn. Could be motivated. The Antwerp Court docket of Attraction has due to this fact not complied with its obligation to causes:
“The enchantment judges who choose that there is no such thing as a motive to consider a distinct time of time than the switch of possession on the premise that “the Court docket of Attraction (by enchantment) doesn’t undertake circumstances that led to the declare for acquisition or habits of the events because of these claims, because of which the worth of the shares had been influenced” and that thus apply the Articles 642 and 643 of the Propodies after the Proposals of the Propodies. was set, their choice doesn’t justify proper.“
The Court docket of Cassation opens a dialogue that didn’t but exist for the time being. This case regulation appears to indicate that the criterion beneath the W. Venn. not applies beneath the WVV. This goes in opposition to all of the ruling authorized doctrine that assumed that the WVV codified the prevailing cassation regulation, albeit then by the wording of the apparently unreasonable consequence. This outdated criterion was due to this fact not immediately thought of irrelevant by the introduction of the WVV (see, for instance, O. Roodhooft, Abuse of the retirement and exclusion of shareholders, Lea, 2025, p. 134 ev; F. PARREINE, Retirement and exclusion of shareholders, KLUWER, 2020, 165 EV)
The explanatory memorandum to the WVV spoke, as shareholder A provided in its petition, certainly a broadening of the powers of the chairman (Parl.St. Chamber 2017-18, no. 54-3119/001, 79-80). To this point, nonetheless, that passage has been interpreted primarily as the chance to additionally apply different worth corrections (equivalent to a good worth improve or discount) along with a shift within the reference date. There was no sudden turning across the criterion for the shift of the reference date.
The Court docket of Attraction of Antwerp can’t be blamed right here. In fact there will not be adequate factual information for assessing whether or not there was factual grounds for a shift within the reference date, however the Court docket of Attraction appears to counsel that there is no such thing as a motive to shift the reference date in any respect. That evaluation is in fact a mere details concern. The Court docket of Attraction additionally adopted clearly with the challenged causes, the prevailing cassation regulation of 31 March 2023. 2:69, third paragraph WVV deviates from the factors beneath the W. Venn. Is a really unforeseeable turnaround.
The query in fact arises, as is usually the case, what the scope of and motive for this sudden turning of the Court docket of Cassation is. The reason for this judgment could also be attainable to search for the underlying account of details. Though the Court docket of Cassation doesn’t do any factual evaluation, the details naturally shade the case regulation of the Court docket.
From the truth that it may be made specifically the argument that the Court docket of Cassation primarily wished to reopen one other dialogue, specifically whether or not with unique efforts of one of many shareholders who’ve led to a rise in worth, a worth discount will be utilized to the detriment of the non-relevant shareholder. (see extra in depth: O. Roodhooft, Abuse of the retirement and exclusion of shareholders, Lea, 2025, p. 138-139 with references there) The Court docket of Cassation said earlier that this circumstance can not give rise to a worth correction (Cass. December 9, 2010, Cass. 2010, 2929).
There’s certainly a normative dialogue about that time, though there are plenty of arguments to not apply worth correction on this speculation both. For instance, shareholders will be anticipated to proceed to make efforts for the corporate and it isn’t all the time the voluntary selection of one of many shareholders to not be concerned within the coverage of the corporate.
Whatever the normative concerns, this might be a change in relation to the mounted cassation regulation on this level. Furthermore, that turnaround is (euphemistically expressed) very cryptically formulated with the required house to (re) open different dialogue factors. The judgment will due to this fact primarily result in dialogue and tough causes for magistrates.
In any case, this judgment opens house to say a shift within the reference date or one other worth correction exterior the classically used criterion. Talking of a stunning birthday current (particularly for litigators then and never for magistrates) …
Lawyer at Inn / Voluntary Scientific Assistant Institute for Commerce and Insolvency Legislation