On 14 October 2011, the Supreme Court clarified the joint liability of recipient companies in case of a demerger (splitsing/scission).
Article 686 of the Belgian Companies’ Code (the "BCC") provides that, in case of a demerger, the recipient companies remain jointly liable (hoofdelijk gehouden/solidairement tenues) for any debts that are due and payable by the demerged entity on the date of publication of the demerger proposal in the annexes to the Belgian Official Journal. This provision partially implements Sixth Council Directive 82/891/EEC of 17 December 1992, concerning the demerger of public limited liability companies (the "Directive").
In the case at hand, the claimant, Spar Retail SA ("Spar"), asserted that it held a due and payable claim against Declerck et Fils SA ("Declerck") under the above conditions. Spar's claim was based on a judgment, which had ordered Declerck to pay damages to Spar. As a result, Spar claimed the benefit of the joint liability of the recipient companies resulting from the demerger of Declerck in accordance with Article 686 BCC.
The Belgian Supreme Court confirmed that the Directive requires the putting in place of adequate protection for creditors of companies involved in a demerger. Specifically, it imposes a protection system for creditors having claims which precede the publication of the demerger proposal but are not yet due at the time of the publication. Such a protection system has been implemented into Belgian law in Article 684 BCC. This article provides that such creditors may require a security within two months after the publication of the demerger in the annexes to the Belgian Official Journal. The Supreme Court added that the Directive does not oblige the Member States to provide for a joint liability of recipient companies (as provided for in Article 686 BCC) for the claims that are not yet due at the time of the publication of the demerger proposal.
As a result, the creditors having claims which precede the date of publication of the demerger proposal may refer to the application of Article 684 BCC or Article 686 BCC, depending on whether or not their claims are due at the time of the publication of the demerger proposal.
In the case at hand, the judgment at issue was still subject to appeal and not provisionally enforceable at the time of the publication of the demerger proposal. The Supreme Court therefore held that the obligations resulting from such a judgment could not be construed as due and payable debts within the meaning of Article 686 BCC. As a result, Spar was barred from claiming the benefit of the joint liability of the recipient companies in accordance with Article 686 BCC and should have obtained a security pursuant to Article 684 BCC instead.
