De turboliquidatie van de BV (VDHI nr. 131) 2016/15.2.1.1:15.2.1.1 The body with decision-making power in the matter of the turbo-liquidation

De turboliquidatie van de BV (VDHI nr. 131) 2016/15.2.1.1

15.2.1.1 The body with decision-making power in the matter of the turbo-liquidation

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

The first problem arises at a stage before the turbo-liquidation. Before the turboliquidation can take place, a dissolution resolution will as a rule first be adopted by the general meeting under Book 2, Section 19(1)(a) of the Dutch Civil Code. In addition to this resolution a declaration will also have to be made: the declaration that the company no longer has any assets at the time of dissolution. The law however lacks an explicit basis of jurisdiction for this. There is an assumption in the jurisprudence and literature that the board has the power to do this. It also follows from the jurisprudence that the judgment of the board is sufficient to proceed with the turbo-liquidation and that the board does not need to render any account of this to the company’s creditors. There is an assumption that the creditors already have sufficient protection from wrongful (usually fraudulent) turbo-liquidations because they can have the company restored under Book 2, Section 23c(1) of the Dutch Civil Code. It may however be concluded that the route provided by Book 2, Section 23c(1) of the Dutch Civil Code does not give the creditors sufficient protection, this being for the following seven reasons:

i.

It is difficult for a creditor to ascertain whether the company has any assets and to demonstrate their existence. This is because there is no need for annual accounts to be prepared for the last, shortened financial year of a turbo-liquidated company and the creditor does not have the option of consulting the company’s records under Book 2, Section 24(4) of the Dutch Civil Code.

ii.

Initiating proceedings under Book 2, Section 23c(1) of the Dutch Civil Code involve costs of course, while it is not certain that they will be recovered.

iii.

Initiating proceedings under Book 2, Section 23c(1) of the Dutch Civil Code takes a lot of time.

iv.

The turbo-liquidation takes place without the legal winding-up proceedings being pursued, as a result of which this fact is not published, except in the commercial register. Because of this creditors are not aware of the company’s turboliquidation.

v.

When a turbo-liquidated company is restored under Book 2, Section 23c(1) of the Dutch Civil Code, this restoration is not entered in the commercial register nor otherwise published. The creditors – who have not initiated the proceedings – are therefore unaware of the restoration and consequently of the possibility of instituting legal proceedings against the company.

vi.

At the same time the attractive aspects, i.e. being at no cost and simplicity, associated with the proceedings by which a company can be dissolved by means of the turbo-liquidation mean that the chances of the board fraudulently working towards the turbo-liquidation are increased.

vii.

The relationship between the shareholders and the board is also disturbed because the board has the power of declaration. Because the declaration results in the dissolution of the company without any winding-up proceedings, it can in my view be argued that it should be for the shareholders to make the declaration, or at least to be involved with it.

Deze functie is alleen te gebruiken als je bent ingelogd.