Transfer of unpaid shares
Transfer of unpaid shares
December 2022 – What happens if a shareholder transfers his shares before they are paid up in full? This question also remains relevant under the new Companies and Associations Code (CAC).
Old vs New
The old Companies and Associations Code imposed a minimum share capital for the most relevant company forms. For a BVBA, that minimum capital was EUR 18.550, and for an NV, EUR 61.500. The shareholder was not required to immediately pay that sum in full to the company. The minimum paid-up capital was 20% – with a minimum of EUR 6.200 for the BVBA, and 25% – with a minimum of EUR 61.500 for the NV/SA.
Today, under the CAC, only the NV still has a minimum share capital (at least 25% must still be paid up in full – with a minimum of EUR 61.500).
The successor of the bvba, the bv, no longer has a minimum share capital.
Cassation
What happens to the payment obligation if the shareholder transfers his shares before the payment is made? Will the full payment obligation then lie with the new shareholder or will it remain with the previous shareholder?
Under the previous legislation, there was an explicit arrangement only for NVs. The article in question provided that after the transfer, the ex-shareholder still had to contribute the unpaid amount to the debts prior to the disclosure of the transfer.
That rule is actually motivated by the fear that the shareholder would transfer his shares to an insolvent person. Suppose the NV gets into financial difficulties, while the shareholder still has to deposit EUR 200.000 euros. If the shareholder were to transfer the shares to another, for example a shell company, the creditors would no longer benefit from suing the shareholder for paying up the shares in full.
A cassation judgment of 2 September 2022 renders a ruling on the old scheme, but then for the BVBA. And unlike the NV, there was no explicit legal provision for the BVBA. The Court of Appeal of Ghent had inferred from this that creditors of the BVBA could not demand payment in full from the ex-shareholder.
The Court of Cassation overturned that judgment. The court rules that under the previous law:
the transfers with regard to the company and third parties only take place from the date of entry in the register of shares, and
after the transfer of shares has been entered in the register of shares, the transferor of the shares that are not fully paid up cannot be called upon to pay up in full by the company and by third parties to contribute to the company debts arising after that registration. Conversely: after that registration, he can still be called upon by the creditor to pay up in full, but then limited to the company debts incurred previously.
The CAC
The CAC now contains a provision, both for the NV and for the BV. Art. 5:66 of the CAC stipulates for the BV that in the event of transfer of a share that is not fully paid up, both the transferor and the transferee are jointly and severally liable for payment in full, towards the company and towards third parties. This is therefore stricter than the old statutory regulation for NVs. and also stricter than what Cassation has decided so far for the old BVBAs.
However, it is generally assumed that a transfer of unpaid shares that took place before the amendment of the law is still regulated according to the old legal provisions, and not according to the new ones.