A judgment of the Court of Cassation dated 23 November 2021 confirms the extension of liability linked to bankruptcy offences to de facto directors.
Article 489bis, 4°, Criminal Code punishes the persons referred to in Article 489 Criminal Code who, with the intention of postponing the declaration of bankruptcy, have failed to declare bankruptcy within the period stipulated by Article 2 Bankruptcy Code, now Article XX.102 CEL.
The persons referred to in Article 489 of the Criminal Code include the directors, in law or in fact, of companies or legal persons in bankruptcy.
As a result of the judgment and according to the will of the legislator, a de facto director, in other words someone who, without being a director of a company by virtue of the law or the articles of association, actually manages that company, can also be a perpetrator of the offence referred to in article 489bis, 4° of the Criminal Code and is therefore not a mere participant.
A de facto director is therefore obliged to comply with the obligation to report the offence, sanctioned by article 489bis, 4° of the Criminal Code. To qualify as a de facto director, according to relevant case law, one must meet the following definition:
"The de facto director is one who can perform positive acts of management in complete independence, without legal basis or any instructions from corporate bodies."
It is up to the individual in question to assess whether these conditions have been met, but the given this confirmation, the assessment should be made if there is a risk.
Insolvency law has witnessed several changes in Belgium in light of changing regulation and legislative responses to the Covid-19 pandemic. You can read about earlier developments here. Please reach out to one of our dedicated insolvency experts with any questions you might have about your business.