Posted the: 2012-05-07 Numac: 2012009197 FEDERAL JUSTICE PUBLIC SERVICE March 19, 2012. -Act to amend the Code of corporations with respect to the procedure of liquidation (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Available general Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER 2. -Modification of the procedure of liquidation art. 2 A section 183, § 3, of the Code of companies, amended by the law of 23 January 2001, the following changes are made: 1 ° in the paragraph 1, the word "trade" are repealed;
2 ° in the last paragraph, 'transfer of a company' shall be replaced by the words "transfer of the seat of a company" and "the tribunal de commerce is attached a copy of the decision of approval" shall be replaced by the words "a copy of the decision of approval by the Court is attached.
3. article 184 of the same Code, as amended by the law of June 2, 2006, is replaced by the following: «art.» 184 § 1. Absence of contrary statutory provisions, the General Assembly determines the method of liquidation and shall appoint the liquidators. In the sociétés en nom collectif and sociétés en commandite simple, decisions are validly taken by the approval of half of the shareholders with three-quarters of it have social; the absence of this majority, it is held by the president of the tribunal.
§ 2. The appointment of the liquidators shall be submitted to the president of the Court for confirmation. The competent court is the district where the company has its seat the day of the decision of dissolution. If the headquarters of the company was moved in the six months preceding the decision of dissolution, the competent court is the district where the company had its headquarters before it is moved.
The president of the Court granted confirmation of the appointment only after verifying that the liquidators provide all guarantees of probity for the exercise of their mandate.
The president of the tribunal also hears the liquidator has possibly actions between his appointment by the General Assembly and the confirmation of this appointment. It can cancel them if they constitute a clear violation of the rights of third parties.
May under no circumstances be appointed as liquidators, individuals who have been convicted for infringement of articles 489 at 490bis of the penal Code or for theft, false, concussion, fraud or breach of trust, as well as any custodian, guardian, administrator or accountant, who is not rendered and resulted in his account in a timely manner. This exclusion can intervene only if it come endeans a period of ten years, taking courses after a final decision of conviction or of the lack of accountability and balance of account in a timely manner.
May not be appointed as liquidator, except for approval by the president of the competent court, persons who have been declared bankrupt without obtaining rehabilitation and those who have incurred a sentence of imprisonment, even suspended sentence for one of the offences mentioned in article 1 of the royal decree No. 22 of 24 October 1934 concerning the judicial prohibition certain convicted offenders and bankrupts from exercising certain functions professions or activities, for an offence under the law of 17 July 1975 on accounting firms or its execution orders, or for an offence under the tax legislation.
The decision of appointment of liquidator may mention one or more candidates replacement liquidators, optionally sorted by preference, for the case where the appointment of the liquidator is not confirmed or approved by the president of the tribunal. If the president of the competent court refuses to proceed with the approval or confirmation, it means one of these replacement candidates as liquidator. If none of the candidates satisfies the conditions described in this article, the president of the tribunal is itself a liquidator.
The president of the tribunal is seized by query unilateral society, filed pursuant to sections 1025 et seq. of the Code of judicial procedure.
The unilateral request is signed by the liquidators, a lawyer, notary or by an administrator or a manager of the company. The president of the tribunal statue at the latest within five working days of the filing of the application.
This period is suspended during the time of the remission granted to the applicant, or for the time necessary as a result of reopening debates. Absence of a decision within this period, the appointment of the first appointed liquidator is regarded as confirmed or approved.
The president of the tribunal may also be seized by the Prosecutor of the King or any third party's motion concerned, in accordance with articles 1034bis and following of the Judicial Code.
The liquidators form a quorum.
§ 3. Where the liquidator is a moral person, a natural person who represents the liquidator for the exercise of the powers of liquidation must be designated in the instrument of appointment. The designation of this individual, and any changes to this appointment, must be decided in accordance with the § 1.
An act appointing a liquidator, as well as an act designation or change the designation of the individual that where the liquidator is a legal person, represents for the exercise of the powers of liquidation, cannot be validly filed pursuant to section 74 if a copy of the decision of the president of the tribunal is attached except if no decision pursuant to paragraph 2, subparagraph 7 was made. In this case, the company must furnish proof that it has requested. For these acts, the period of 15 days referred to in article 68 begins to run from the decision of the president of the tribunal or of the expiry of the period of five working days referred to in § 2, paragraph 7.
§ 4. In the event of breach of article 184, article 189bis or article 190, § 1, the president of the competent court may, on request of the public prosecutor or any third party interested, provide for the replacement of the liquidator after hearing him.
§ 5. Without prejudice to article 181, dissolution and liquidation in a single act are possible only with respect to the following conditions: 1 ° no liquidator is appointed;
2 ° it is are not liabilities according to the State summarizing the status active and passive society referred to in section 181;
3 ° all shareholders or all members are present or validly represented at the General Assembly and decided unanimously to vote.
The remaining assets is taken up by the same shareholders. ».
S. 4. at article 189bis of the Code, inserted by the Act of June 2, 2006, the following changes are made: 1 ° in the paragraph 1, the words «during the sixth and twelfth months of the first year of the liquidation» are replaced by the words "in the seventh and thirteenth months of winding up" and the words ", established at the end of the sixth and twelfth months of the first year of the liquidation. ' shall be inserted between the words 'liquidation' and the words ' the registry '.
2 ° in paragraph 2, "liquidation package" shall be replaced by the words "company file."
3 ° in the third paragraph, "liquidation package" shall be replaced by the words "company file."
4 ° article is supplemented by a paragraph 4 as follows: "this article is not application if the liquidation made pursuant to section 184, § § 5 5".
S. 5A section 190 of the same Code, as amended by the Act of June 2, 2006, the following changes are made: 1 ° the § 1, paragraph 3 is replaced by the following: "before the completion of the liquidation, the liquidators, a lawyer, a notary or a Director or Manager of the company shall submit, by unilateral application pursuant to sections 1025 et seq. of the Code of judicial procedure. the plan of distribution of assets between different categories of creditors for agreement at the Court of the district where the headquarters of the company at the time of the filing of this unilateral application. The above query can be signed by the liquidators, a lawyer, notary or by an administrator or a manager of the company. »;
2 ° article is supplemented by a paragraph 3 as follows: "§ § 3 3» This article is not application if the liquidation is done in accordance with article 184, § 5. ».
S. 6 A article 195bis of the Code, inserted by the Act of June 2, 2006, the following changes are made: 1 ° in the paragraph 1, the words "It is held in the registry, for each liquidation, a folder containing" are replaced by the words "for each liquidation, the following parts are filed in the registry in the dossier referred to in article 67, § 2.
2 ° in 1 article, 1 is repealed;
3 ° in the paragraph 1, is inserted 4 bis as follows: '4 ° bis. the plan of distribution of assets approved and referred to in article 190, § 1;
4 ° article is supplemented by a paragraph 3 as follows: "article 75 does not apply to the application.".
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given in Brussels on March 19, 2012.
ALBERT by the King: the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Note (1) Session 2010-2011.
House of representatives.
Documents. -Law proposition of Mrs
Dikshit et al., 53-1605-001 - Addendum, 53 - 1605-002 Session 2011-2012.
House of representatives.
Documents. -Report, 53-1605-003 - text corrected by the commission 53-1605-004 - text adopted in plenary meeting and forwarded to the Senate, 53-1605-005.
Compte rendu intégral.
-9 February 2012.
Senate Documents. -Project not mentioned by the Senate, 5-1480-1.