Contributed by Eric Blomme and Cecile Odeurs. In brief The COVID-19 pandemic has put the rescue of struggling but viable businesses front of the agenda. The initial response of the Belgian government and legislator was a moratorium on enforcement measures and bankruptcy petitions. Such moratorium can however not be a structural solution in the long term, and expired on 31 January 2021. The attention then shifted to the improvement of the existing legal framework. Fortunately,…
The government’s proposal for a new Belgian Companies Code is a hot topic in the Belgian legal and business world. Among the most publicized changes are a cap on directors’ liability for all company types and the abolition of the share capital for the private limited liability company (now BVBA/SPRL but to be renamed BV/SRL). No doubt good news for directors and shareholders but what does this mean for restructuring practice and creditors generally?
Cap on directors’ liability
The New Companies Code introduces a cap on the liability of all directors and daily managers for a fixed amount. The cap varies from EUR 250,000 to EUR 12,000,000 depending mostly on turnover and balance sheet total. It is an aggregate cap that applies for all directors together and that is to be shared between all creditors. The cap applies in case of proven negligence or even gross negligence, but it will not apply in case of fraudulent intent or intent to cause harm. Although parties cannot exclude the cap by contract, it applies only to directors’ liability and not to contractual guarantees or other credit support provided by directors.
It remains to be seen whether the proposed cap will have an effect on the risk appetite of directors, especially if these directors benefit from D&O liability insurance up to the amount of the cap.