Creditors with a disputed claim are now protected in case of capital restructuring

This is due to the law of 22 November 2013 in order to alter the Belgian Code of Companies regarding the guarantees of the creditors in case of a capital restructuring (the “Law”). This Law entered into force on 26 December 2013.

Trading companies may restructure their capital in different ways: they may:

• repay of their (share) capital (capital redemption), 
• demerge the company in two or more separate entities, 
• contribute a branch or universality of assets
• decrease their capital.

All these measures may lead to a diminution of the mutual security of their creditors.

The Belgian Code of Companies (“B.C.C.”) already contained certain provisions, by which the interests of creditors of companies restructuring their capital are protected. On the one hand, creditors of each company participating in a capital restructuring, i.e. a demerger may request for an additional security with regard to claims arisen before the date of publication of the deed establishing the restructuring and which have not been expired at that moment in time. On the other, the receiving companies remain jointly and severally bound until payment of the certain and collectable debts existing on the date of publication of the aforementioned deeds. These protective measures aim for the protection of creditors having either “a claim not being expired” or “a certain and collectible claim”.

By judgement of 14 October 2011, the Belgian Supreme Court ruled on the precise scope of the term “certain and collectible claims”. More specifically, the Belgian Supreme Court decided that an obligation arising out of a judgement subject to an appeal and that is not declared provisionally enforceable, is not a certain and collectible claim. Given the foregoing, the already existing protective measures, as provided for in Article 613 B.C.C. (capital decrease in a public limited liability company – NV), Articles 684 and 686 B.C.C. (mergers and demergers), as well as in Articles 766 and 767 B.C.C. (contribution of an universality of assets or branch) can not be applied on creditors having a claim which is disputed in justice, even if this dispute would subsequently turn out to be absolutely unfounded. The position taken by the Belgian Supreme Court led to the situation whereby the creditors whose claim was disputed were left out; they were not granted any specific protection. It goes without saying that said judgement was subject to criticism.

With the new Law, the legislator wishes to meet the criticism expressed on said judgement of the Belgian Supreme Court, and this by extending the protection of creditors of companies participating in a capital restructuring to claims “for which in court or through arbitration an appeal was brought before the date of the general meeting resolving on the capital restructuring”.

In practice, the creditor of a company wishing to accomplish a capital restructuring will most likely request for a security, and will apply to the court or arbitration board in case such request is refused. The latter will decide on the “appearance of law”, which the creditor has at its disposal vis-à-vis the company to demand for such a security. The judge or the arbitrator, as the case may be, shall only allow to grant the creditor its security in the event that this claim appears to be founded.

By means of this Law the precarious nature of the protection of creditors in the event of a capital restructuring, as provided for in the B.C.C., is at least partially redressed. The amendments made by this Law to the Articles 684 and 686 B.C.C. (merger and demerger), as well as to the Articles 766 and 767 B.C.C. (contribution of an universality of assets or a branch) are beneficial to the creditors (of a disputed claim) of all companies having legal personality (with the exception of agricultural companies and economic interest grouping). However, in the event of a capital decrease, it seems that only the creditors having a disputed claim on a public limited liability company or on a limited partnership with a share capital (amended Article 613 B.C.C. juncto Article 657 B.C.C.) are granted special protection, since the Law does not foresee in any alteration of the “mirror provisions” regarding the private limited liability company (Article 317 B.C.C.) or cooperatives (Article 426 B.C.C.).

This difference in treatment is not consistent with the underlying principle of the Law, and must, therefore, in our opinion, be rectified as soon as possible (alteration of Article 317 B.C.C. and Article 426 B.C.C.).