Two recent acts have streamlined the liquidation procedure by, amongst others, explicitly providing the possibility to wind-up and liquidate a company in one single deed and by rationalising the judicial procedure related to the liquidator’s confirmation or approval (1). Since the Act of 2 June 2006 was introduced, each appointment of a liquidator for a company with legal personality is subject to an integrity test in accordance with article 184 of the Companies Code.
The principal amendments to the liquidation procedure can be summarised as follows:
• As described in the Circular Onkelinx (2), the Companies Code will now explicitly offer the possibility to wind-up and liquidate the company through one single deed, provided that:
1. no liquidator has been appointed;
2. no liabilities remain outstanding;
3. all shareholders are present or duly represented at the general meeting and decide to that end unanimously;
4. the remaining assets are taken over by the shareholders themselves.
• The decision concerning the liquidator’s appointment may designate alternative candidates, in a preferred order if desired, in case the appointed liquidator should neither be confirmed nor approved by the commercial court’s president. It has been common practice to appoint alternative candidate-liquidators in the notarial deed with regard to the company’s dissolution.
• The procedure before the commercial court’s president in view of confirming or approving the liquidator’s appointment is amended - inter alia - as follows:
1. The unilateral application for the confirmation or approval of the liquidator has to be submitted to the commercial court’s president, who will decide on the matter within five days. In the absence of a decision within this term, the initially appointed liquidator shall be deemed to be either confirmed or approved. So far, the president only disposed of a twenty-four hour term and the Companies Code did not provide for a sanction in case of a possible, albeit common, violation thereof.
2. The current requirement that either the company’s competent body or a lawyer exclusively signs the application has been abandoned. As from now, the application can be signed by the liquidator(s), a lawyer, a public notary or a company director.
3. The obligation to add a financial statement to the application has been dropped, since such statement does not serve a useful purpose when confirming or approving the liquidator’s appointment.
• Modifications in the Judicial Code clarify which judge is competent for the various aspects of the liquidation procedure. Consequently, the commercial court is designated as the competent court for all requests regarding the approval of decisions on the transfer of the dissolved company’s registered office, for all actions aimed at dissolving a company that for three consecutive financial years has ignored its obligation to file the annual accounts and finally, for all applications regarding the approval of the distribution schedule. All applications for the appointment of liquidators, the liquidator’s confirmation and approval and the replacement of a liquidator will be submitted to the commercial court’s president.
Aside from some linguistic corrections, both acts offer subtle, although essential, amendments to certain aspects of the liquidation procedure which were no longer aligned with common practice. Mostly, the law confirms the application of the Circular Onkelinx, thus providing the possibility to combine the decisions to wind-up and close uncomplicated liquidations in one single deed. In such cases, the procedures to confirm and approve the liquidator and have the distribution schedule accepted can be avoided.
