At this time of year, many companies have held their annual general meeting and, in the course of it, made decisions that may not suit everyone.
In order to determine in which situation a person (natural or legal) is entitled to seek the annulment of a decision of a general assembly in court, three questions need to be asked, namely (i) "Is there a ground for annulment of the decision", (ii) "Can I act to annul the decision" and (iii) "Am I within the time limit for pursuing the annulment of the decision?

Is there any reason to annul the decision?

It has long been taught that only the reasons listed in the law can justify the annulment of a general assembly decision.

According to Article 2:42 of the Companies and Associations Code, the following may constitute grounds for annulling a decision of a general meeting

i. Irregularities of form. These include failure to comply with the rules relating to the time limit for convening the meeting, the agenda, the prior communication / provision of documents, proxies, deliberation and voting.

ii. Substantive irregularities. These are decisions that are vitiated by an excess of power, an abuse of right or a misuse of power.

Excess of power occurs when the general assembly takes a decision which either does not fall within its competence or which violates a mandatory legal provision.

Misuse or abuse of power occurs when the general meeting takes a decision to serve personal interests to the detriment of the company's interest.

Voting rights are abused when they are exercised in a way that exceeds the limits of normal exercise by a prudent and diligent person. In this context, the proportionality test should be applied, without, however, allowing the judge to make a judgement of opportunity.

iii. The exercise of voting rights suspended by the effect of a legal provision not included in the Companies and Associations Code.

iv. Any situation which would be specifically sanctioned as null and void by any provision of the Companies and Associations Code. By way of example, it should be recalled that in the absence of a special report by the administrative body, the decision of a general meeting to change the object of a company is null and void (Articles 5:101, 6:86, 7:154 of the Companies and Associations Code for SRLs, SAs and SCs respectively).

Some grounds are subject to an important qualification. Indeed, it is required to show either an influence on the decision or the vote, or a fraudulent intention.

This is nevertheless an advantage for any minority shareholder who wants to pursue the annulment of a general meeting decision. Indeed, the influence criterion excludes that the situation is examined in a purely mathematical way. Thus, the Corporate Court cannot, for example, simply note that the majority of shareholders were present and voted in favour of the decision in question.

Can I act to have the decision annulled?

Article 2:44 of the Companies and Associations Code provides for the possibility for any person who has an interest in the observance of the rule of law that has been infringed to apply to the competent company court for the annulment of a general meeting decision.

This includes shareholders or members of a general meeting and members of the administrative body.

There is, however, an important qualification to this rule. The same article provides that a person who has voted in favour of the contested decision or who has expressly or tacitly waived the right to invoke a ground for nullity may not invoke nullity unless it can be shown that the favourable vote was vitiated or that the nullity results from a rule of public policy.

Am I within the time limit to pursue the annulment of the decision?

Article 2:143, §4, para. 2, of the Companies and Associations Code provides that any action for the annulment of a general meeting decision must be brought within 6 months from the date on which the decision taken is enforceable against the person invoking the nullity.

Depending on the situation, the enforceability of the decision concerned and, consequently, the
The start of the 6-month period can occur at different times:

- if the person who intends to pursue the annulment of a decision is present at the meeting at which the decision is taken, enforceability will take place immediately;

- if, on the other hand, the person is not present, enforceability will only take place when the decision has been notified to him or her either personally or through publication in the Annexes to the Moniteur Belge.

For more information, please contact Frédéric HEYLBROECK (f.heylbroeck@cew-law.be), Francine MESSINNE (francine.messinne@cew-law.be) and Thibault RAAD (t.raad@cew-law.be), lawyers, CEW & Partners.