On 12 June 2017 [1], the commercial investigation chamber (chamber d'enquête commerciale / kamer voor handelsonderzoek) of a Belgian tribunal of commerce is now entitled to refer a case to the tribunal in order to rule on the dissolution of a company when such company does not file its annual accounts (financial statements).

Until now, when a company did not file its annual accounts for three consecutive years, its judicial dissolution could be ordered by the tribunal only at the request of an interested third party or the public prosecutor (art. 182 of the Company Code).

What’s changed?

1. According to the new article 182 of the Company Code, the tribunal can order the dissolution of a company at the request of the commercial investigation chamber. The commercial investigation chamber is the chamber within the tribunal of commerce charged with the monitoring of the situation of distressed debtors for the purpose of fostering their going concern and ensuring the protection of creditors' rights.

In case the dissolution is requested by an interested third party or by the public prosecutor, the tribunal grants a minimum time extension of three months to regularize the situation. Should the action result from the initiative of the commercial investigation chamber, the tribunal may either grant a time extension to regularize the situation, or order the dissolution of the company.

However the tribunal cannot order the dissolution as long as bankruptcy, judicial reorganization or dissolution proceedings are pending.

2. The law does not require anymore that a failure to comply with the obligation to file annual accounts occurs during three consecutive years. The judicial dissolution for failure to file annual accounts may therefore be ordered after one single financial year. The judicial dissolution can nevertheless only be requested after the expiry of a seven-month period starting from the end of the financial year (which is the set time to file the annual accounts).

3. Upon proposal of the commercial investigation chamber, the tribunal can also order the dissolution (or as the case may be grant a time extension to regularize the situation) if the company was deregistered from the Crossroads Bank for Enterprises in accordance with article III.42, paragraph 1, 5 of the Code of Economic Law [2], if it did not appear before the commercial investigation chamber despite two convocations or if the directors of the company do not have the basic management skills or the professional qualifications required for its activity by law.

4. The tribunal ordering the dissolution of the company is entitled to prohibit the directors of the company from being directors, auditors, managers or carrying out any other function granting the power to commit a legal person or the profession of stockbroker if such persons did not follow up on the convocations of the liquidator of the company. This prohibition cannot exceed three years.