8.6.2 Proposed amendments of statutory law

In the last part of this chapter, the author discusses a private legislative initiative to reform the statutory law on partnerships proposed by the ‘Werkgroep Personenvennootschappen’ (Working Group), as well as the preliminary draft by the official legislator for new statutory law on partnerships, which is based on the aforementioned initiative of the Working Group.

In 2016, the Working Group presented a comprehensive proposal for new statutory law on partnerships. In this proposal, the limited partnership continued to exist as a separate legal form, including the limited liability of the limited partner. An important difference with the current provisions, however, is the proposal to allow limited partners to participate in the management of the limited partnership or even form the management, excluding general partners. In principle, however, the limited partner would not be allowed to represent the limited partnership. In addition, the Working Group’s proposal included a complete revision of the limited partner’s liability. In line with the above, it was proposed to abolish the management prohibition and furthermore to allow the limited partner to represent the limited partnership on the basis of a power of attorney. On the other hand, a new provision for liability, inspired by section 2:248 DCC, would be introduced to prevent misuse of these newly acquired powers. In the proposal the limited partner is jointly and severally liable for the deficit in case of bankruptcy of the limited partnership, if its actions by virtue of a power of attorney are an important cause of the bankruptcy. The author is critical of the proposed provision, because the wording of the proposed legal text cannot lead to the intended legal consequences. Moreover, the provision is limited to legal acts only. Damaging acts that are not considered to be legal acts cannot be dealt with by applying the proposed provision, nor does it make any link with liability resulting from, for example, mismanagement.

The legislator used the proposal by the Working Group as a basis for drawing up an official preliminary draft for new statutory law on partnerships. However, the legislator has chosen on the one hand to take provisions from the proposal of the Working Group and on the other hand to tinker with the text of these provisions, which does not improve the clarity of the official draft. Yet, the official preliminary draft does not affect the Working Party’s proposal regarding the liability of limited partners acting by a power of attorney. The criticisms mentioned by the author on the proposal of the Working Group therefore apply equally to the official preliminary draft. In addition, the official preliminary draft is unclear about the extent to which limited partners can participate in the management of the limited partnership.