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A private limited company
A cooperative company
A public limited company
A European company
A European cooperative company
The above company forms can be dissolved at any time by a valid decision of the general meeting.
The director must explain his proposal for dissolution in a report that must be included on the agenda of the general meeting that will decide on the dissolution. This report includes a recent (not older than 3 months) statement of assets and liabilities.
This is verified by an appointed commissioner or designated company auditor/external accountant. He briefs the general meeting on the accuracy. The shareholders receive a copy of both reports and the statement of assets and liabilities.
The above reports are crucial. The decision of the general meeting is invalid if they are missing.
Both the conclusions of the reports and the dissolution decision are certified by a notary.
As part of the reform of company law (WVV), the legislator has provided for a number of fundamental changes to the liquidation procedure. The main features of the reform are:
The intervention of the court for the confirmation of the appointment of the liquidator and the approval of the distribution plan is only required for deficit liquidations. The intervention of the court therefore depends on the financial position of the company during the liquidation procedure.
Confirmation of the appointment of the liquidator
The appointment of the liquidator will only have to be homologated if the statement of assets and liabilities shows that not all creditors can be fully paid. If the value of the equity is less than that of the debt on the basis of the statement of assets and liabilities, judicial control will therefore be necessary. The role of the external accountant, auditor, commissioner is therefore becoming even more important.
However, any interested third party can always turn to the court to replace the liquidator for legitimate reasons. This offers a great deal of discretion to the judge. This may include cases where the formalities of appointment have not been complied with, cases where the liquidation appeared to be non-deficit, but ultimately turns out to be deficit.
Approval of the distribution plan
In the preparation of the distribution plan, the court will only have to intervene if it appears that not all creditors can be paid in full (deficit liquidation). Whether or not there is a deficit liquidation will be determined at this stage based on the actual liquidation result.
The appointment of the liquidator and the approval of the distribution plan must be interpreted completely independently of each other. In other words, just because the appointment of the liquidator needs to be confirmed by the court, this does not automatically mean that this is also required for the approval of the distribution plan.
Liquidator
Powers
In the WVV, the powers of the liquidator(s) are defined in a more extensive manner than was the case in the old Companies Code. The liquidator is authorized for all acts that are necessary or useful for the liquidation of the company. In addition, the liquidator can only perform a number of acts that are listed in Article 2:88 WVV after approval by the general meeting. This provision is of mandatory law.
Additional contributions by shareholders
Without the authorization of the general meeting, the liquidator may request additional contributions to which the shareholders have committed themselves, if the liquidator considers it necessary (i) to pay the debts of the company and the costs of liquidation or (ii) to ensure the equal treatment of the shareholders.
Forgotten assets and liabilities
By the closure of the liquidation, the shareholders become, by operation of law, undivided owners, each for their part, of all the active assets of the company, even if they were not known at the time of the closure of the liquidation.
In addition, liability is created for the shareholders of a dissolved BV, CV, or NV for unpaid company debts for which an insufficient amount was deposited, if they had effective knowledge (subjective bad faith) or should have had (objective bad faith) knowledge of the existence of such debts at the time of the closure.
In the case of dissolution and liquidation in one act, the shareholders are always liable for unpaid company debts, regardless of whether they acted in bad faith or good faith (without prejudice to their recourse against the members of the executive body who were last in office, if the shareholders acted in good faith). This procedure offers fewer guarantees to company creditors, which justifies the increased liability.
This liability is limited for each shareholder to the amount equal to the sum of their contributed capital and their share in the liquidation balance received before or at the closure of the liquidation of the company. This also applies to shareholders who have transferred their shares before the closure of the liquidation, up to the amount of the advances they have received. In the case of a deficit liquidation, shareholders cannot be held liable based on this provision.
Reopening of the liquidation
Unpaid creditors can demand the reopening of the liquidation if the following conditions are cumulatively met:
it concerns a deficit liquidation;
assets are discovered after the closure of the liquidation. In the case of the discovery of liabilities, one can rely on the liability of the shareholders as outlined above;
only unpaid creditors can request the reopening; and the claim for reopening is made against the last liquidator in office.
The reopening is not automatic and is only ordered by the court if the value of the forgotten asset exceeds the costs of the reopening.
Dissolution and liquidation in one act (so-called one-day procedure)
In the WVV, it is possible to dissolve and liquidate a company in one act in which not all debts to third parties have been repaid and no sufficient amount has been deposited to pay them. In that case, a prior written agreement from these creditors is required. Moreover, the commissioner, or if no commissioner has been appointed, the company auditor or external accountant must confirm this written agreement in their audit report.
There is also a relaxation regarding the attendance requirement: