Cass. Might 19, 2025 (C.22.0246.N): no extra dissolution after the WVV entry into power, although the declare was established earlier
Artwork. 333 W.VENN. Each social gathering gave the precise to assert the dissolution of a BVBA earlier than the courtroom, if it has fallen internet actively to beneath the quantity of 6,200 euros, claiming the dissolution of the corporate earlier than the courtroom. If the brink had been reached, the courtroom might at most one other one remedy interval give it to deliver the online energetic again above the minimal threshold.
The same rule remains to be in artwork. 7: 229 WVV for the NV (with stricter thresholds). For the BV, this risk of termination was abolished with the regulation of 23 March 2019 introducing the Code of Corporations and Associations.
An excellent cause for this cancellation has by no means actually been given to my style. Additionally a legislator who throws overboard capital can nonetheless discover that with an (imminent) internet passive it can’t be trusted that the shareholders have the precise incentive ranges to guage the continuation of the corporate. In any case, if they’re already 'underneath water', it’ll now not have a draw back for the shareholders. They thus be tempted by what financial literature calls'playing for ressurection. ' (For an actual instance, see this article in de FT over de onlangs overleden stichter van FedEx: “The corporate, nevertheless, got here near working out of money in 1975, shortly after its founding. Smith is alleged to have taken among the firm’s previous few thousand {dollars} to Las Vegas and rescued it by profitable $27,000 at blackjack — sufficient to pay a looming gasoline invoice.”).
So there’s due to this fact one thing to say to provide third events a proper to impress the dissolution. I consider that this can be a bit too quick for the BV, maybe as a result of the supply merely referred to ideas from the capital regulation. Even in a world with out capital, nevertheless, it stays related whether or not an organization has a optimistic or destructive fairness.
The individual involved are very broadly crammed in within the case regulation: shareholders, but additionally collectors and even rivals who suy it that their competitor from the market is taken up (see, for instance, “overview of case regulation”, TPR 2000, 484, no. 478). This additionally makes it clear that authorized restoration for the claimant shouldn’t be an important goal for this termination declare. The aim of the dissolution declare is principally in nature: to purify commerce. Maybe the plaintiff is never pushed by excessive -minded public goals, however his personal curiosity is used to pursue public goals the place to and Koim don’t at all times have the sources for it. Non-public vices, public advantages. (See additionally right here about non-public penalties, the place the identical precept applies).
Maybe this non-repair, quasi-public nature of the termination declare additionally explains why the Courtroom of Cassation in a judgment of 19 Might 2025 dominated that the termination declare can now not result in the dissolution of a BV, even when the declare was lodged earlier than the entry into power of the WVV. The explanations of the Courtroom itself particularly emphasizes that the deserves of the declare should be assessed on the time of the ruling itself (and never the second of introduction of the proceedings).
Joeri Vananroye
