“Simply once I thought I used to be out, they pull me again in!”Was the irritating dedication From the sympathetic chief of a dynamic household enterprise. The identical feeling can elevate administrators of corporations after they analyze the cassation judgment of 6 March 2025.
This judgment pertains to the particular chapter legal responsibility concerning the NSSO. This legal responsibility was beforehand contained in artwork. 265 § 2 Code of Firms (not less than with regard to the BV (BA)) and might now be present in artwork. Xx. 226 W.
What does the regime entail? The director of a bankrupt firm who was concerned in not less than two bankruptcies or settlements of corporations in the midst of the 5 -year declaration of chapter, through which money owed with regard to a social safety contributions have remained unpaid, runs a particular threat. In any case, on the declare of the Nationwide Social Safety Workplace or the chapter trustee, this director (within the context of the third chapter) may be held personally and collectively and severally chargeable for the entire or a part of all social contributions owed on the time of the chapter, together with the delay interruptions.
The idea of “concerned” was central to the judgment of 6 March 2025. Does this idea assume that on the time of the sooner bankruptcies the director was nonetheless a director or is it adequate that he was as soon as a director of those corporations (even when he’s not when the sooner bankruptcies had been spoken)? The Courtroom of Cassation solutions within the second sentence:
The involvement of an individual within the chapter of an organization leading to money owed of social contributions is deduced from its solely high quality of administrator or supervisor, regulation or de facto, of this firm, even after they not have this high quality through the declaration of chapter of it.
This isn’t very uplifting studying for firm directors. Let's make this clear with an instance. Jef was a director of firm X from 1998 to 2007, collectively together with his girlfriend Bea on the time. When the amorous roads divorced, Jef resigned as a director. As a free man, Jef grew to become a director of firm Y. a while later. This mandate ran till 2013. At present, Jef is a director of firm Z.
Firm X is asserted bankrupt in 2023, firm Y might be declared bankrupt in 2024, firm Z is in the present day in critical monetary difficulties. Jef involves you for session. There are RSZ money owed at Z and Jef experiences casually that he was additionally a director in different corporations way back. Does Jef have an issue on the subject of ZSZ money owed of Z?
Based mostly on a strict studying of the cassation judgment: probably it’s. Jef is immers betrokken geweest bij X en Y en deze vennootschappen zijn failliet verklaard in een periode van 5 jaar voorafgaand aan het (eventuele) faillissement van Z. Er zal dus onderzocht moeten worden of er in die eerdere faillissementen onbetaalde RSZ-schulden waren ten tijde van het faillissement (ook al heeft Jef jaren voordien de vennootschapsdeur van X en Y achter zich dichtgeslagen en waren er op dat ogenblik ook helemaal geen RSZ money owed).
The judgment closes the door for firm directors who discover a method out shortly earlier than sinking the ship. The result’s that firm directors run a threat that the 5 -year interval proposed by the legislator can transcend. Whether or not this corresponds to the need of the legislator is unclear. It’s also unsure whether or not such a lecture is constitutional (cf. M. Vandenbogaerde, Legal responsibility of firm directorsIntersentia, 2009, nr. 233: “Changing legal responsibility as a sanction with none restriction in time can’t be handed by that proportionality take a look at”)
The judgment reveals that the previous is rarely actually the previous for firm directors (the Courtroom of Cassation had already proven on this matter that point was relative, Cass. 7 April 2017, MN A. van How and Ok. De Smet confirms: Time is relative “, TBH 2017, 751-753).
Finds the corporate director Consolation within the new textual content (outdated philosophy) of artwork. Xx. 226 Wer? Not likely, as a result of whoever reads this provision rigorously is affected by its unsure nature.
In software of artwork. Xx. 226 may be held liable if, in the midst of the 5 -year interval previous to the declaration of chapter, he was concerned in not less than two bankruptcies or settlements of corporations through which money owed with regard to a social safety contributions have remained unpaid, so far as he declared beforehand declared bankrupt or related corporations on the time of the declaration of chapter, dissolution or graduation of the liquidation additionally a director, former director, member or former member of the Government Council or of the Supervisory Board or had precise administration authority with regard to the circumstances of the corporate.
From the phrases “so far as” in “On the time“It could possibly be deduced that Jef has no drawback beneath the” new “regime, since on the time of the chapter of X and Y he was not a (factual) director (see (most likely) in that sense, B. Tilleman and Ok. Dewaele, Board of FirmsDie Keure, 2022, no. 1278). Nevertheless, artwork. XX.226 additionally explicitly refers to former administrators. And on the time of the bankruptcies of X and Y …, Jef was certainly a former director of X and Y.
All in all a reasonably unlucky state of affairs, which most likely deserves the eye of the legislator.
