Company formalities and governance in the Luxembourg Cour de cassation: notarial form, distributions, contributions, provisional administrators and loss of capital (2021–2025)

The judgments

The question

Luxembourg company law is full of formalities: notarial deeds for the articles of association, filings with the Trade and Companies Register (registre de commerce et des sociétés, RCS), statutory conditions for distributions and capital contributions, and duties on the board to convene the general meeting in defined situations. When a formality is skipped, the dispute that follows usually reaches the Cour de cassation (Luxembourg’s supreme court in civil and criminal matters) on a narrow question. Founders, managers, minority shareholders and foreign advisers want to know which of these rules the Court has actually confirmed and which questions remain open.

This review takes five rulings of the Cour de cassation from 2021 to 2025. Each concerns a provision of the Law of 10 August 1915 on commercial companies. They are of very different weight. The ruling of 17 November 2022 decides points of company law on the merits. Two rulings (8 February 2024 and 6 March 2025) quash appeal judgments because the Cour d’appel (Court of Appeal) failed to answer arguments, without the Cour de cassation saying anything on the company-law substance. One (22 June 2023) dismisses a ground because the provisions relied on did not apply in time. One (4 November 2021) declares both grounds inadmissible as new. Reporting these accurately means separating what the Court decided on the law from what it did not reach, and the review does so for each ruling.

The legal framework

Form of amendments to the articles and the register’s review

Article 100-4 of the 1915 Law requires public limited companies, partnerships limited by shares and private limited liability companies (S.à r.l.) to be formed, on pain of nullity, by special notarial deeds. Article 100-12 then provides that “any contractual amendment to company instruments must, on pain of nullity, be made in the form required for the instrument of incorporation of the company”. For an S.à r.l., Article 710-7(1) lists what the instrument of incorporation states, including, at point 3°, “the registered office”. Article 100-10 requires the instruments of an S.à r.l. to be published in full. Our current text of Article 100-4 also allows notarial deeds to be executed electronically and lets a simplified S.à r.l. (S.à r.l.-S) be formed by private instrument; neither point was before the courts in the case reviewed here.

On the register side, Article 21(2) of the Law of 19 December 2002 on the Trade and Companies Register gives the RCS administrator “a task of summary legal review of all documents filed” and adds that it “may also refuse any filing application that is incomplete, inaccurate or does not comply with the statutory provisions”. Under Article 21(3) a refusal must state reasons, and Article 21(4) gives the applicant eight days to appeal to the judge presiding over the commercial chamber of the tribunal d’arrondissement (District Court), who decides as in summary proceedings. At EU level, Articles 14 to 16 of Directive (EU) 2017/1132 list the instruments and particulars that companies must disclose, including any transfer of the registered office, and require changes to be entered in the register, “including, where applicable, the legality check as required by national law”.

Distributions and the articles

Article 710-25(1) allows an S.à r.l. to pay interim dividends only if the articles authorise the managers to do so, and then only if interim accounts show sufficient distributable funds, the amount stays within profits since the last approved accounts (plus profits brought forward and available reserves, less losses and compulsory reserves), the managers decide within two months of the interim accounts, and any auditor verifies the conditions. Article 710-5(5) requires a buy-back of shares to respect “the principle of equal treatment of all members who are in the same position”. Outside the 1915 Law, Article 1134 of the Civil Code makes lawfully formed agreements binding as law between the parties, and Article 1853 of the Civil Code divides profits in proportion to each member’s contribution where the company instrument does not fix the shares.

Contributions and payment of capital

For public limited companies, Article 420-12 defines contributions in kind as contributions “other than in cash” consisting of assets capable of economic assessment. Article 420-23(5) provides that at least a quarter of each share issued on a capital increase must be paid up “either by a contribution in cash, including by set-off against certain, liquid and due claims on the company, or by a contribution in kind, or by capitalisation of reserves, profits or share premium”, and Article 420-23(6) requires an auditor’s report for contributions in kind. Article 420-27 treats the conversion of convertible bonds as “a contribution in cash payable by set-off against a claim on the company”. In the 2023 case the Parquet général (the public prosecutor’s office at the Court) noted that these articles were formerly Articles 26-3, 32-1 and 32-4; the 1915 Law was renumbered on 5 December 2017.

Convening the general meeting

Article 450-8 requires a public limited company to hold at least one general meeting a year within six months of the end of the financial year (first subparagraph). Under the second subparagraph, the board of directors or management board, the supervisory board and the supervisory auditors “are required to convene it so that it is held within one month where shareholders representing one tenth of the share capital so request in writing, stating the agenda”. Our current text adds that if the meeting is not held within that period, it may be convened by an agent designated by the President of the District Court on an application by shareholders holding the same percentage.

Loss of half or three quarters of the capital

Article 480-2 obliges the board of a public limited company, unless the articles are stricter, to convene the general meeting so that it is held within two months from the time when a loss reducing net assets below half of the share capital “was or should have been established”, to decide on possible dissolution. The board must explain the causes and its proposals in a special report available to shareholders eight days before the meeting; our current text adds that failure to prepare the report renders the resolution void unless all shareholders waive it. If net assets fall below one quarter of the capital, the same rules apply, “but in that case the dissolution takes place if it is approved by one quarter of the votes cast at the meeting”. Otherwise, under Article 480-1, dissolution requires a resolution passed in the form prescribed for amendments to the articles, or a court order for just cause.

What the Cour de cassation reviews

The rulings below cannot be read without the procedural rules on cassation appeals, cited by the Court and the Parquet général in plain text. Under Article 10 of the amended Law of 18 February 1885 on cassation appeals and procedure, each ground (moyen) must, on pain of inadmissibility, invoke a single ground of cassation and state which part of the decision it attacks and why. A ground not argued before the trial judges and requiring factual findings is “new and mixed fact and law” and inadmissible. Failure to answer a party’s submissions (défaut de réponse à conclusions) is a defect of form under Article 89 of the Constitution and Articles 249 and 587 of the New Code of Civil Procedure; a judgment is regular in form as soon as it contains reasons, express or implied, on the point. The assessment of facts and the interpretation of articles of association belong to the sovereign appreciation of the trial judges.

Transfer of the registered office: Cour de cassation, 17 November 2022, no. 137/2022

Facts and lower courts

Company SOCIETE1.), an S.à r.l. formed on 19 December 2000, had its registered office fixed in Luxembourg by Article 4 of its instrument of incorporation. A notarial deed of 1 July 2004 amended Article 4 to transfer the office from Luxembourg to another commune (LIEU1.)). By a decision of 30 June 2019 the company resolved to move its office back to Luxembourg, and filed a private instrument (acte sous seing privé) recording the transfer with the RCS. On 9 August 2019 the RCS administrator, the economic interest grouping ORGANISATION1.), refused the filing because the transfer was an amendment to the articles that had to be made by notarial deed (Parquet général, p. 12).

By an order of 13 December 2019 under Article 21(4) of the RCS Law, the first vice-president of the tribunal d’arrondissement de Luxembourg, presiding over the commercial chamber and deciding as in summary proceedings, held the company’s appeal admissible but unfounded, relying on Articles 100-4 and 100-12. The Cour d’appel confirmed on 19 February 2020 (no. CAL-2020-00038). It defined the dispute as concerning only (i) whether a transfer of the registered office of an S.à r.l. to a commune other than the one in its articles is an amendment to the articles that must be recorded by notarial deed, and (ii) whether the RCS administrator may refuse a filing that is not so recorded; the validity of the transfer decision itself was “not in issue” (Court, p. 4). It cited Articles 100-4, 710-7, 100-12 and 100-10, found their terms “clear, precise and unambiguous”, declined to look at the legislative history (bill no. 2474) or at the development of the law between 1933 and 2000, and concluded that the transfer “constitutes an amendment to the articles which must therefore necessarily be recorded by notarial deed” (Parquet général, p. 15). Because the 2019 transfer itself amended Article 4, as the 2004 deed had done, the administrator had rightly refused the filing; it had not exceeded its powers, since in its summary legal review it “may refuse the filing of an instrument that is irregular in form” (Parquet général, p. 17). On Directive 2017/1132, the Cour d’appel held that the Directive concerns the particulars that must appear in the instruments and leaves the form of instruments to the Member States (Court, p. 7).

Admissibility: service at the registered address

The RCS administrator argued that the cassation appeal, lodged on 21 February 2022, was out of time because the appeal judgment had been served on 16 March 2020. The bailiff had served it at the address registered in the RCS, found no letterbox, bell or sign, and proceeded under Article 157 of the New Code of Civil Procedure. The Court held that the serving party knew the company’s real place of establishment, which the company had given in its notice of appeal; the service “at an unknown domicile” was therefore, under Article 160 of the New Code of Civil Procedure and given the harm to the addressee, void (non avenue), and the appeal was admissible (Court, p. 3). The Parquet général had reached the same result, finding the bailiff’s report “very surprising” in a case whose very subject was the transfer of the office (p. 13).

The four grounds

First ground (contradiction of reasons). The company argued that the Cour d’appel could not both say the validity of the transfer was not in issue and apply Article 100-12, which sanctions irregular amendments with nullity. The Court held that a contradiction of reasons counts as an absence of reasons only where the reasons “destroy and cancel each other out”. In defining the dispute, the appeal judges had decided on the sole basis that any amendment must be made in the form of the instrument of incorporation; the remark on the validity of the transfer was surplus (surabondant). The ground failed (Court, pp. 4–5). The Parquet général had proposed holding it inadmissible as confused, and in the alternative unfounded.

Second ground (failure to answer submissions). The company had explained that the 2004 notarial deed was not an acceptance of the register’s position: its original Article 4 had omitted the clause allowing the office to be moved anywhere in the Grand Duchy by decision of the members, and the 2004 deed had corrected that omission, so that the articles now allowed a transfer by collective decision. The Court held that, by finding that the office had been moved by notarial deed in 2004 and that the new transfer “therefore entails a new amendment of the articles”, the appeal judges had implicitly rejected that argument (Court, p. 6).

Third ground (violation of Articles 100-4, 710-7, 100-12 and 100-10). The company argued that none of these articles contains the word “commune” or any rule that a transfer from one commune to another, and only that, requires a notarial amendment. The Court’s answer is a single sentence:

By deciding that the transfer of the registered office of a private limited liability company, in so far as it entails an amendment to the articles, must be recorded by a notarial deed, the appeal judges did not infringe the provisions referred to in the ground.

Two points follow from the wording. The Court reformulated the appeal judges’ conclusion with the qualifier “in so far as it entails an amendment to the articles”; it did not itself adopt the proposition that every move to another commune is necessarily such an amendment. And it answered the ground on the merits, although the Parquet général had proposed declaring it inadmissible because it combined several provisions and was “approximate, lacking precision and logical rigour” (pp. 18–19).

Fourth ground (Directive 2017/1132). Relying on recitals 8 and 33 and Articles 14 to 16 of the Directive, the company argued that a transfer of the registered office must be entered in the register within the Directive’s time limits. The Court held:

It follows from Articles 14 and 15 of Directive (EU) 2017/1132 […] that the competent national authorities may, when entering the instruments and particulars subject to compulsory disclosure and their amendments, carry out a legality check under national law. That legality check is provided for by Article 21(2) of the amended Law of 19 December 2002 […] and was carried out by its administrator, who, having found that the instrument whose publication was sought did not take the legal form prescribed by Article 100-12 […], refused the filing application.

The appeal judges had therefore not infringed the Directive in holding that the form required for an amendment to the articles is a matter of national law. The company had asked for a preliminary reference to the Court of Justice on whether the register may refuse the entry of a transfer on the ground that “the commune of the registered office is the minimum geographical information to be stated in the articles”, a position it described as the administrator’s constant practice without a clear national text. The Court declared the request inadmissible: the dispute as defined fell under national law, and a reference presupposes the interpretation of an EU rule applicable to the dispute (p. 9). The Parquet général reached the same result after quoting at length the CJEU’s judgment of 6 October 2021 in Consorzio Italian Management e Catania Multiservizi (C-561/19) on the duty of last-instance courts to refer (pp. 20–23).

Outcome

The appeal was dismissed. The company was ordered to pay the RCS administrator a procedural indemnity (indemnité de procédure) of €2,000 and the costs of the cassation proceedings (p. 9).

A distribution in breach of the articles: Cour de cassation, 8 February 2024, no. 27/2024

Facts

Company SOCIETE2.), a Luxembourg S.à r.l., had a Dutch majority shareholder, company SOCIETE1.) BV, and two individual shareholders, PERSONNE1.) and PERSONNE2.), described in the parent group’s accounts as “two key employees”. According to the first-instance findings cited by the Parquet général, the two had each subscribed 1,500 of the 10,001 ordinary shares on 4 June 2014; SOCIETE1.) held the other 7,001 ordinary shares and 361,931 preferential shares (p. 18). Article 22.7 of the articles set an order of distribution. On 21 December 2017 a distribution was made and 191,630 preferential shares held by SOCIETE1.) were redeemed, leaving 10,001 ordinary and 170,301 preferential shares (p. 18). On 3 August 2018 the board of managers decided a further distribution, which aimed to pass to the shareholders the price obtained on the sale of company SOCIETE3.) (Court, pp. 4–5).

The lower courts

The tribunal d’arrondissement de Luxembourg, sitting in commercial matters, held that the 2018 distribution breached Article 22.7 of the articles and that the two minority shareholders’ claim for damages against SOCIETE1.), as majority shareholder, was well founded in principle. The Cour d’appel confirmed on 22 December 2022 (nos CAL-2020-00550 and CAL-2020-00635) (Court, p. 2). Its reasoning, quoted in the cassation ground, contains the company-law points of interest:

• the tribunal had rightly analysed fault, damage and causation under the general law, “and more precisely Article 1134 of the Civil Code, since neither the law on commercial companies nor any other law governs the situation of an act performed in breach of the articles of a company” (Court, p. 4);
• where the clauses of the articles on distributions are not respected and certain members suffer loss, the contractual liability of the majority shareholder “may be engaged” (p. 4);
• both the December 2017 and the August 2018 distributions were made under Article 22.7, the only difference being that the 2017 distribution stopped at step (iii) because only share premium was then available; the use of “repurchase” in the articles and “redemption” in the resolutions showed the terms were equivalent, and a revolving loan agreement accompanying the 2017 redemption did not change its nature (pp. 4–5);
• documents from PERSONNE3.), who had played a major role in the acquisition and sale, including an “Offer to Management” of 11 February 2014 marked “for discussion purposes only”, showed that the preferential instruments, through which SOCIETE4.) was to invest €25,000,000 in SOCIETE3.), were meant to let the investor recover the funds injected before any distribution of profits to holders of ordinary shares (pp. 5–6);
• if the parties had meant to give both classes the same dividend rights, “the authors of the articles should have provided for it clearly, which they did not do” (p. 6).

The Cour d’appel also said that the appellants’ arguments on the redemption and the 2018 distribution had “remained the same as at first instance” and “unchanged on appeal” (pp. 4 and 6).

The ground and the Court’s answer

The appellants, SOCIETE1.) and SOCIETE2.), argued that they had in fact raised several points for the first time on appeal: that the register of members and the notarial deed of 4 June 2014 showed that each minority shareholder held only 0.83% of the capital; that the payments of December 2017 were not a dividend, since no interim accounts “required, under Article 710-25 of the Law of 10 August 1915 […], for a distribution of dividends” had been drawn up, but an exceptional distribution of share premium and a redemption of preferential shares; and that, absent a redemption price in the articles, the price could be freely set by the company and the member concerned provided equal treatment under Article 710-5 was respected (Court, p. 7).

The Court took the second and third branches together. Applying Article 89 of the Constitution in its version before 1 July 2023 and Articles 249 and 587 of the New Code of Civil Procedure, it found from the procedural documents that the appellants had presented on appeal several arguments not raised at first instance, supported by documents:

By holding that “the argument of SOCIETE1.) and SOCIETE2.) concerning the redemption of the preferential shares and the distribution of dividends made on 3 August 2018 remained the same as at first instance” and that the “arguments developed by SOCIETE1.) and SOCIETE2.) […] remained unchanged on appeal”, the appeal judges did not answer the submissions, new on appeal, referred to in the two branches.

The judgment was quashed “without there being any need to rule on the other branches and grounds” (p. 10). The Court therefore did not decide whether Article 710-25 applied to the December 2017 payments, whether the redemption price could be fixed freely under Article 710-5, whether Article 1134 of the Civil Code is the right basis for liability for acts contrary to the articles, or whether a majority shareholder is contractually liable to minority members for such acts. Those propositions remain the reasoning of a judgment that no longer exists.

What the Parquet général proposed

The first advocate general had proposed dismissing the appeal. On the failure to answer, the conclusions considered that the appeal judgment had dealt with the capital split by relying on the parent’s consolidated accounts (70% held by the group, 30% by the two employees), and with the redemption by holding that it had to follow Article 22.7(iii) (pp. 14–15). On the second ground (Articles 710-5 and 710-7 and Article 1134 of the Civil Code), the conclusions noted that the first-instance judgment had in fact found that the two held 30% of the share capital, not 0.83% (p. 18). On the third ground (Articles 1134 and 1853 of the Civil Code, and lack of legal basis with regard to Article 1134 and Article 710-25, which the conclusions quote in full), they proposed rejecting each of the six branches, mainly because the trial judges had interpreted the articles on the basis of the parties’ intention, Article 1853 applies only by default where the articles do not fix the shares in profits, and the interpretation of articles of association is a matter for the sovereign appreciation of the trial judges (pp. 19–25). The Court did not adopt that conclusion.

Outcome

The Court quashed the appeal judgment in full, referred the case to the Cour d’appel differently composed, ordered the minority shareholders to bear the costs of the cassation proceedings and rejected their request for a procedural indemnity (pp. 9–10). The Parquet général’s conclusions mention a separate cassation appeal against the same appeal judgment lodged by the two minority shareholders (no. CAS-2023-00041); its outcome is not among our sources.

A contribution by current account: Cour de cassation, 22 June 2023, no. 81/2023

Facts and lower courts

Company SOCIETE1.), a public limited company formed on 15 October 2002, was declared bankrupt by the tribunal d’arrondissement de Luxembourg on 21 November 2014. Its bankruptcy receiver (curateur) obtained a European order for payment on 13 October 2016 against a shareholder, PERSONNE1.), for €79,995, the unpaid balance of his capital. The shareholder’s oppositions failed: by a judgment of 9 May 2018 the tribunal ordered him to pay €79,995 with interest from 29 September 2015 and held that set-off after bankruptcy was not available. The Cour d’appel confirmed on 24 November 2021 (no. CAL-2019-00438) (Parquet général, pp. 9–10).

The shareholder’s case, as set out in his ground, was that a subsidiary, SOCIETE2.), had borrowed €437,468.76 from a bank, that he had guaranteed the loan with a deposit of the same amount and had contributed it to SOCIETE1.) through a shareholder current account to pay off the debt, and that in return he had received 8,333 shares for a symbolic €1. He claimed €500,437.04 from the company, or at least €441,282.09. The Cour d’appel held that, given the purpose he had given his current account, namely the repayment of the subsidiary’s loan, it “cannot be qualified as a contribution in kind intended to release him from payment of the balance of the share capital” (Court, p. 3). On set-off, it relied on its own judgment of 28 July 2020, which had confirmed the rejection of his claim from the bankruptcy liabilities because the claim was not established; that judgment had the authority of res judicata (Parquet général, pp. 14–15).

Admissibility: no acquiescence

The receiver argued that the shareholder had accepted the appeal judgment. In a letter of 3 January 2022, his lawyer wrote that he considered the decision “profoundly unjust” but intended to comply, and proposed payment in twelve monthly instalments or in full from the proceeds of a house sale (Parquet général, pp. 10–11). The Parquet général read this as an express acquiescence and proposed declaring the appeal inadmissible (p. 12). The Court disagreed. Since a cassation appeal does not suspend enforcement in civil matters, even unreserved performance counts as acquiescence only where the circumstances show an unequivocal intention to acquiesce; asking, in reply to a bailiff’s demand, whether the sum could be paid in instalments did not show an unequivocal intention to give up the appeal (Court, pp. 2–3).

First ground: Articles 420-12, 420-23 and 420-27

The shareholder argued that, read together, Articles 420-23 and 420-27 treat a contribution by conversion of a certain, liquid and due claim on the company as a contribution in cash payable by set-off, not as a contribution in kind needing an auditor’s report, and that his current-account contribution should have been credited against the unpaid capital (Court, pp. 3–5). The Court did not examine that reading:

The provisions referred to in the ground, in the version reproduced there, were introduced by the law of 10 August 2016 modernising the amended law of 10 August 1915 on commercial companies […]. The facts underlying the dispute predate the entry into force of that law, so that it does not apply to the dispute.

The ground was therefore unfounded. The Parquet général had considered it inadmissible for lack of a proper statement and, in any event, inoperative, because the facts dated from 2002 and the appeal judges had applied the 1915 Law “in its version applicable at the time of the facts” (pp. 12–14). The ruling settles only the temporal point. It does not say whether, under the current Article 420-23(5), a shareholder current account can pay up shares by set-off, nor how the Cour d’appel’s qualification of the contribution would stand under the earlier wording.

Second ground: set-off

The shareholder argued that his claim and the claim for unpaid capital were connected, so that judicial set-off under Article 1289 of the Civil Code was possible even after bankruptcy. The Court held that Article 1289 presupposes reciprocal claims; since he had not proved any claim against the company, the appeal judges did not have to order set-off (p. 7). The Court did not rule on whether set-off after bankruptcy is allowed between connected claims.

Outcome

The appeal was declared admissible and dismissed. The shareholder’s request for a procedural indemnity was rejected; he was ordered to pay the receiver and the company €2,500 and the costs (pp. 7–8).

The provisional administrator and Article 450-8: Cour de cassation, 6 March 2025, no. 40/2025

Facts and procedural history

Company SOCIETE3.), a public limited company, was under provisional administration by a court-appointed provisional administrator (administrateur provisoire), an avocat à la Cour. Its two shareholders were in dispute: company SOCIETE4.) had sued company SOCIETE1.), a partnership limited by shares, and SOCIETE3.) before the tribunal d’arrondissement sitting in commercial matters. On 18 October 2018 SOCIETE1.) asked the summary proceedings judge to replace the provisional administrator, alleging a conflict of interest because he was also a director of two other companies, and a lack of neutrality and impartiality between the shareholders. By an order of 28 November 2019 the judge refused and extended his mandate to the duration of the main proceedings (Parquet général, p. 11; Court, p. 3).

The Cour d’appel confirmed on 3 March 2021, adding that the mandate would continue until a new board was effectively appointed. That judgment was quashed by the Cour de cassation on 10 November 2022 (no. CAS-2021-00127), a ruling mentioned in the present judgment (its date and number are given in the Parquet général’s conclusions, p. 11) but not among our sources. After referral, the Cour d’appel ruled on 13 March 2024 (no. CAL-2020-00036): it held inadmissible SOCIETE1.)’s request to modify the administrator’s mission and again confirmed the order with the same addition (Court, p. 3). It assessed the request under Article 932(1) of the New Code of Civil Procedure (urgency in summary proceedings) and, citing a judgment of the Brussels Court of Appeal of 15 October 1998, held that the question was not whether the administrator had committed failings but whether the way he performed his tasks was prima facie so open to criticism that the interest of the company required his replacement (Parquet général, p. 13).

On the complaint concerning accounts and meetings, the Cour d’appel found that the publication of accounts had been delayed by the shareholders’ disagreement over the auditor, that the 2011–2015 accounts had been approved at a general meeting of 24 April 2023, that the administrator had convened a meeting for 27 February 2024 to approve the 2016 accounts, and that an auditor had been appointed by the meeting of 15 July 2020; “a complaint of failure to hold general meetings is therefore also unfounded” (Court, p. 4).

First ground: the Article 450-8 complaint

SOCIETE1.) argued that it had raised a distinct complaint: under the second subparagraph of Article 450-8, the provisional administrator, like the directors of a company not under administration, must convene a general meeting within one month when shareholders representing one tenth of the capital so request in writing with an agenda, and he had deliberately failed to do so despite repeated requests. That complaint differed from the annual-meeting duty in the first subparagraph, and the Cour d’appel had not answered it (Court, pp. 4–5).

The Parquet général proposed rejecting the ground. In its view the appeal judges had limited the debate to the company’s interest; the one-month duty “aims a priori to protect the interest of the shareholders”, and SOCIETE1.) had not explained how the failure to convene could have harmed the company, so the complaint could not affect the outcome and needed no answer (p. 14). The Court took the opposite view on the first branch:

By rejecting the request for replacement of the provisional administrator […] based on the complaint, developed in its notice of appeal and in its pleading note filed on appeal, that the provisional administrator had breached the obligation arising under Article 450-8, second subparagraph, of the Law of 10 August 1915, and thus a precise complaint requiring an answer, without ruling on the reality of the alleged failure, its possible repercussions and the existence in that context of a serious breach of his duties such as to justify his replacement, the appeal judges infringed the provisions referred to in the ground.

The provisions infringed are Articles 249(1) and 587 of the New Code of Civil Procedure. The Court did not decide whether Article 450-8 binds a provisional administrator, whether he breached it, or whether such a breach would justify replacement. What it did decide is that the complaint was not inoperative: a judge deciding on replacement must examine it, and the passage quoted states the three things the judge must address. The second to fourth branches (lack of legal basis under Article 450-8, under Article 435(2) of the New Code of Civil Procedure by analogy, and under a general principle allowing a court-appointed administrator to be replaced for breach of duty) were not examined.

Second ground: neutrality and impartiality

SOCIETE1.) had also argued that, in dealing with criminal complaints it had filed about expenses incurred by former directors of SOCIETE3.) who were also directors of SOCIETE4.), the administrator had set himself up as judge instead of remaining neutral between the two shareholders. The Cour d’appel had answered only a separate complaint that his inaction risked letting the company’s civil claims become time-barred (Court, pp. 7–8). The Parquet général thought the neutrality complaint concerned one shareholder’s interest and needed no answer (p. 16). The Court again quashed: a precise complaint of lack of neutrality and impartiality required an answer on its reality and on whether there was a serious breach of duty justifying replacement (p. 8).

Outcome

The appeal was inadmissible against the part of the judgment declaring inadmissible the request to modify the administrator’s mission, since no ground attacked it. For the rest, the judgment was quashed within the scope of the two grounds and the case referred to the Cour d’appel differently composed. The defendants were ordered in solidum to pay the costs, and the requests of four of them for a procedural indemnity were rejected (Court, pp. 3 and 9).

Loss of capital and the prorogued meeting: Cour de cassation, 4 November 2021, no. 130/2021

Facts and lower courts

Company X), a public limited company, held the second home of the parents of the parties to the dispute and, according to the appellant, survived only on advances from its shareholders (Parquet général, p. 9). Losses having reduced its net assets, an extraordinary general meeting was convened for 25 June 2018 to decide on dissolution under Article 480-2, and a prorogued meeting was held on 23 July 2018. Shortly before it, on 16 July 2018, shareholder DL) waived €650,000 of his claim against the company; the waiver and interim accounts at 16 July 2018 were produced at the 23 July meeting. Shareholder JL) maintained that dissolution had been validly approved at that meeting by one quarter of the votes (pp. 9–10).

JL) sued on 30 August 2018, asking principally for a declaration that the dissolution had been validly decided under Article 480-2 and for the appointment of a notary and liquidators, and in the alternative for dissolution or liquidation for just cause under Article 480-1. By a judgment of 11 July 2019 the tribunal d’arrondissement de Luxembourg, sitting in commercial matters, dismissed the claim and awarded DL) €1,500 under Article 240 of the New Code of Civil Procedure (p. 7). It held that dissolution normally requires two thirds of the votes cast, and one quarter only where net assets are below a quarter of the capital; that the shareholders had to take account of the financial situation at the time of their deliberation, not at the time of the convening notice, including on a prorogation, since shareholders cannot reasonably be required “to ignore financial changes that may have occurred in the meantime”; and that the €650,000 waiver amply covered the losses, so that the conditions of Article 480-2 were no longer met on 23 July 2018 and the two-thirds majority applied. The claim for dissolution for just cause failed because the functioning and existence of the company were not definitively compromised (pp. 7–8). The Cour d’appel confirmed on 16 June 2020 (no. CAL-2019-00813), finding that “in view of the documents”, the conditions of the fourth subparagraph of Article 480-2 “were no longer met at the meeting of 23 July” (Court, p. 3).

The grounds and the Court’s answer

The first ground argued that Article 480-2 required the board to convene the meeting within two months of the moment the loss was established, here 16 May 2018. The second argued that the decision had to be taken in the light of the losses and the special report available eight days before the meeting, so that the waiver made seven days before the meeting and not contained in the report could not be taken into account.

The Court declared both grounds inadmissible. Nothing in the procedural documents showed that JL) had argued before the appeal judges either the failure to respect the two-month period or that only the facts in the special report could be considered; each ground was therefore new and, in so far as it would require an examination of the facts, mixed fact and law (Court, pp. 3–4). The appeal was dismissed, with a procedural indemnity of €2,500 and costs against JL) (pp. 4–5).

The Cour de cassation therefore did not approve or disapprove the lower courts’ reading of Article 480-2. The Parquet général, in a subsidiary analysis, described Article 480-2 as mandatory, inspired by Article 633 of the Belgian Companies Code, and allowing the articles only to be stricter, but said it did not follow that the judge must check its conditions of its own motion (p. 11). Neither point forms part of the Court’s decision.

How the judgments fit together

The only firm company-law holdings in this group come from the 2022 ruling. A transfer of the registered office of an S.à r.l. that amends its articles must be made by notarial deed under Article 100-12; the RCS administrator’s summary legal review under Article 21(2) of the RCS Law extends to the form of a filed instrument, and it may refuse a private instrument recording such an amendment; and Directive 2017/1132 leaves the form of the amendment to national law, so that no preliminary reference was needed. The Court framed the first holding conditionally (“in so far as it entails an amendment to the articles”). The underlying question, whether a move within the same commune or under a clause already allowing transfer by decision of the members also amends the articles, was argued by the company but not decided by the Cour de cassation; the Cour d’appel’s answer was tied to an Article 4 that, after 2004, named the commune.

The 2024 and 2025 rulings show the Court using the duty to give reasons as its main tool in company disputes. In both, the Parquet général proposed dismissal, and the Court quashed because a precise argument with a bearing on the outcome had gone unanswered. In 2025 the Court went further than a bare procedural ruling: by calling the Article 450-8 complaint “a precise complaint requiring an answer”, it declined to follow the Parquet général’s view that a complaint about a duty aimed at protecting shareholders could not affect a decision on replacement taken in the company’s interest. Whether the duty binds the administrator remains open.

The 2021 and 2023 rulings show the limits of what reaches the Court. In 2021 the two arguments with the most interest for company lawyers (the two-month period and the role of the special report) were new in cassation. In 2023 a modern provision was invoked for facts that predated it. In both cases the lower courts’ approach stands, but without the Cour de cassation’s endorsement.

What it means in practice

• Registered office changes in an S.à r.l. If the articles name the commune of the registered office, a move to another commune amends the articles and needs a notarial deed; a private instrument can be refused by the RCS, and the 2022 ruling confirms that refusal. Check what the articles say about the office and about transfers by decision of the managers or members before choosing the form. The 2022 company’s own correction of its Article 4 in 2004 did not help it in 2019.
• RCS refusals. The administrator’s refusal can be challenged within eight days before the presiding judge of the commercial chamber under Article 21(4) of the RCS Law. The 2022 case also shows that a party which serves a judgment at the registered address while knowing the actual address may find that the service does not start time running.
• Distributions under class-based articles. The 2024 case concerned a waterfall in the articles of an S.à r.l. and two kinds of payment: a distribution with a redemption of preferential shares, and a later distribution of sale proceeds. Keep the resolutions, the interim accounts required by Article 710-25(1) for interim dividends, and a clear record of whether a payment is a dividend, a share premium distribution or a redemption price. The lower courts’ reasoning shows how much weight courts may give to term sheets and projections when interpreting articles, but the Cour de cassation did not approve it.
• Paying up capital through a current account. The 2023 case shows that a shareholder who funds the company through a current account may still owe the unpaid balance of his shares, and that a claim rejected from the bankruptcy liabilities cannot then be set off. Where a set-off under Article 420-23(5) is intended, document the claim as certain, liquid and due and record the payment-up in the capital increase.
• Provisional administration. A shareholder seeking to replace a provisional administrator should set out each complaint separately and precisely, with the documents showing, for example, the written requests under the second subparagraph of Article 450-8 and the lack of a meeting within one month. The 2025 ruling requires the court to answer such complaints.
• Loss of half or three quarters of the capital. In the 2021 case the lower courts took account of a debt waiver made shortly before the prorogued meeting. Arguments on the two-month period and on the special report under Article 480-2 must be raised before the trial courts; they cannot be raised for the first time in cassation.
• Cassation strategy generally. Each ground must target one ground of cassation and one part of the decision; new arguments mixed with fact are inadmissible; a complaint about the interpretation of articles of association will usually meet the trial judges’ sovereign appreciation. The procedural route that succeeded in 2024 and 2025 was failure to answer precise submissions.

Status

The 2024 ruling referred the distribution dispute to the Cour d’appel differently composed; no decision after referral, and no decision on the minority shareholders’ separate appeal (no. CAS-2023-00041), is among our sources. The 2025 ruling likewise referred the replacement request to the Cour d’appel differently composed, after an earlier cassation of 10 November 2022 in the same case; no later decision is among our sources. The 2021, 2022 and 2023 rulings ended the proceedings before the Cour de cassation. The 2023 ruling turned on the temporal application of the Law of 10 August 2016; our translation reflects the 1915 Law as consolidated on 2 June 2026, and the articles cited are given in their current numbering and wording.

Provisions discussed

• Company Law: Art. 100-4, Art. 100-12, Art. 710-7, Art. 420-12, Art. 420-23, Art. 420-27, Art. 480-2
• RCS Law: Art. 21

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How to cite

Case law review by BCA EU, for information. Quotations from the judgments are our translations; only the original texts published by the courts are authoritative. Judgments checked on the official sources on 30 October 2026. This page is not legal or tax advice.