Luxembourg case law briefing – corporate law highlights

We are very pleased to present the third edition of our Luxembourg corporate law-focused case law briefing.

In this edition, we are focusing on the 2022 calendar year rulings we identified to be the most relevant for actors navigating the corporate sector. Subject matters ranged from the theory of “tacit mandate” (théorie du mandat apparent), the right for shareholders to request the convening of a general meeting, and the theory of abuse of equality. We intend to inform the reader about, and to explain the practical relevance of, the cases, rather than presenting a full academic analysis.

We believe it is crucial for the Luxembourg legal community, as well as international investors, to gain a thorough understanding of key case law developments, and we welcome any feedback, which we will aim to implement in future editions.

We remain at your disposal if you wish to discuss any of the decisions in further detail.

On behalf of the Allen & Overy Luxembourg Corporate/M&A Team

1. Theory of “tacit mandate” (théorie du mandat apparent) – Obligation to verify representation powers of a company

Luxembourg Court of Appeal sitting in commercial matters, 11 January 2022, no. 6/22-IV-COM, role number CAL-2019-00934

A British Virgin Islands Company (the BVICo) and a Luxembourg private limited liability company (the LuxCo) had entered into a business introduction agreement (the Agreement) pursuant to which BVICo was to introduce LuxCo to potential investors interested in investing in the investment funds managed by LuxCo. The Agreement included an annex containing a list of investors already introduced by BVICo (the Annex). For any future investors introduced by BVICo, the Agreement provided that each client had to be accepted in writing by LuxCo and added to the Annex, which was to be signed by both parties. In return, LuxCo agreed to pay BVICo a fee equal to a percentage of the amount invested by these investors in the relevant investment funds.

Two years after the signing of the Agreement, LuxCo informed BVICo of its intention to terminate the Agreement with immediate effect. In this context, BVICo requested that LuxCo pay the service fees as well as other fees due under the Agreement. After a second formal notice, BVICo decided to refer the matter to a judge.

BVICo asserted that it had introduced an investor (the Investor) to LuxCo in accordance with the Agreement. It also asserted that the Annex had been updated and that this update had been accepted by an e-mail from the managing partner of LuxCo’s parent company (the Managing Partner). Although the Managing Partner was not a manager of LuxCo, BVICo argued that the Managing Partner played a major role in the management of LuxCo and therefore was acting on behalf of LuxCo under a “tacit mandate” (mandat apparent).

In the first instance, the Luxembourg District Court found the claim admissible but not founded. The District Court considered that, according to the Agreement, the introduction of investors should allow the investors and LuxCo to become well informed about each other and their respective activities. A mere introduction of investors to LuxCo was therefore not sufficient. The District Court concluded that it was not established that BVICo had introduced the Investor to LuxCo in accordance with the Agreement. The District Court then found that the updated Annex had not been signed by LuxCo, as required by the Agreement. The judge also ruled that BVICo could not rely on the theory of “tacit mandate” (théorie du mandate apparent) and therefore LuxCo could not be considered to be validly bound by the confirmation of the Managing Partner provided by e-mail.

BVICo appealed but the Luxembourg Court of Appeal confirmed the interpretation made by the first judge. With regard to the “tacit mandate” theory, the Court stated that the representation regime provided for in the articles of association indicating the persons who can validly represent a company is enforceable towards third parties. As a result, third parties cannot rely on “tacit mandate” but must investigate the powers of the person(s) with whom they are dealing.

The Court added that the theory of “tacit mandate” is in principle not applicable to companies and a third party must therefore verify whether the person acting on behalf of a company is legally entitled to represent that company. In this particular case, the Managing Partner had no authority to represent LuxCo, noting that the provisions of the articles of association relating to the representation power had been duly published. The Court concluded that BVICo should have inquired about the Managing Partner’s powers.

This decision reminds us that, in principle, the theory of “tacit mandate” may not apply as far as the representation of companies is concerned. As mentioned in a previous case law briefing,^[1] it is therefore crucial to verify the powers of representation of a company with which one deals (by verifying the articles of association and the board composition based on a corporate excerpt of the company or, alternatively, by requiring evidence of any delegation of powers).

2. Company in formation – The assumption of the commitment by the company may be tacit provided that it is certain – The contracting party does not have to be informed of the assumption of the commitments

Luxembourg District Court, 23 February 2022, no. 2022TALCH14/00032, role number TAL-2021-07427

In February 2020, two lessors leased commercial premises to two founders, acting on behalf of a company in the process of formation (the Company).

A few months later, arguing that the rents for the months of June, July, August and September 2020, as well as the related charges, had not been paid (the Rents), the lessors referred the matter to a judge (juge de Paix).

In the first instance, the judge considered that the Company had validly taken over the commitment entered into by the founders, who were therefore not personally liable for the commitments entered into on behalf of the Company. The Company was thus ordered to pay the Rents.

The lessors appealed to the Luxembourg District Court. They claimed that the founders should be held jointly and severally liable with the Company for the payment of the Rents. They argued that not only had the founders not indicated at the time of the signing of the agreement which company they were acting for, but also that the lessors had not been informed of any assumption by the Company of the commitments entered into by the founders (no decision to this effect by the shareholders’ meeting had been published).

The Court referred to the terms of article 100-17 of the Luxembourg law of 10 August 1915 on commercial companies, as amended (the 1915 Law),^[2] according to which “those who, for a company in formation, before it acquires legal personality, have entered into a commitment in any capacity whatsoever, even by acting as a surety or as a business manager, shall be personally and jointly and severally liable for it, unless otherwise agreed, if these commitments are not taken over by the company within two months of its incorporation, or if the company is not incorporated within two years of the commitment arising. When the commitments are taken over by the company, they are deemed to have been contracted by it from the outset”.

The Court stated that:

• article 100-17 of the 1915 Law applies to any contract or unilateral act creating a legal relationship made on behalf of a company in formation;
• the founders that deal in the name of a company in formation are only released from their personal and joint liability if they can prove that the company has taken over the relevant commitments;
• the assumption, which can be express or tacit, by the company is equivalent to a ratification. A tacit assumption must result from acts that leave no doubt as to the company’s willingness to assume the previous commitments;
• the assumption or ratification is only enforceable towards third parties, with a retroactive effect to the day of the commitment, if the founder indicates, when executing the agreement, that he/she is acting on behalf of a company in the process of incorporation;
• while it is desirable, for legal certainty purposes, to indicate at least the corporate form of the company in formation when entering into a contract on behalf of that company, there is no legal provision requiring the founders to do so. In the present case, the founders had not established or even alleged that a formal assumption of the commitments had taken place. They only mentioned a tacit assumption through the payment by the company of a rental guarantee at the beginning of March 2020;
• the Company had been incorporated in the month during which the commitment was made; and
• the agreement showed that the founders were acting on behalf of the Company and the Company agreed to provide the rental guarantee for the benefit of the lessors. The payment of the rental guarantee demonstrated the Company’s willingness to take over the commitments previously made by the founders.

Based on the above, the Court concluded that the Company had validly taken over the commitments entered into by the founders, so that the latter were not personally bound by the commitments entered into on behalf of the Company.

• This judgment confirms the rules governing the assumption of commitments made on behalf of a company in formation and, in particular, that the assumption of commitments may be tacit as long as it is certain. The Court further recalled that the contracting party does not necessarily have to be informed of the assumption of the commitments. This topic comes up quite frequently before Luxembourg courts; we have already commented on a decision on this issue in our previous case law briefing.[3]

3. Action for dissolution of a company for just cause – Action available only to the shareholders of the company – Third parties cannot exercise the action or intervene to defend the action

Luxembourg Court of Appeal sitting in commercial matters, 2 March 2022, no. 44/22–VII-COM, role number TAL-2019-00517

Two shareholders of an investment fund (the Fund) and of its management company (the Management Company) filed an action for the dissolution of both companies for just cause. In the first instance, a co-contractor of the Management Company (the Co-contractor) and a director of the Fund (the Director) applied for voluntary intervention (intervention accessoire), limiting themselves to supporting the position of the Fund and the Management Company. The Co-contractor argued that it had entered into a promise to sell land with the Management Company, so it was important to it that the Management Company continued to exist in order to be able to meet its obligations. The Director invoked his capacity as director of the Fund to justify the request for voluntary intervention, arguing that his liability could be challenged, as the writ of summons referred to breaches on his behalf.

In the first instance, the judge declared the applications for voluntary intervention inadmissible on the grounds that the action for dissolution was an “action réservée” reserved for the shareholders of the company. Consequently, only shareholders were entitled to bring the action and only shareholders could defend the action in court. Since the Co-contractor and the Director were not shareholders of either the Fund or the Management Company, they could not intervene to defend the action. 

In the present decision of 2 March 2022, the Luxembourg Court of Appeal found that the just reasons referred to in both article 480-1 of the 1915 Law and article 1871 of the Civil Code for authorising the dissolution of the company could only relate to the operating requirements of the company in the relationship between the shareholders and that, given the absence of the involvement of third parties in the operation of the company, the latter were not admissible to bring an action for dissolution of the company on the basis of such reasons. The Court concluded that an action for dissolution for just cause is one reserved for the shareholders of the company only. Therefore, the Co-contractor and the Director were not entitled to intervene, even in an accessory manner, in the dispute between the shareholders of these two companies.

The claim on the merits has not yet been decided. A further update on this matter will have to be provided in due course.

In any case, this decision is a reminder that only shareholders can request the dissolution of a company for just cause and that only shareholders can intervene as defenders in an action to dissolve a company for just cause.

4. Multiple sub-fund investment funds – Request for convening a general meeting of a sub-fund – Assessment of the threshold of 10% of the share capital with regard to each sub-fund and not with regard to the share capital of the investment fund as a whole

Luxembourg Court of Appeal sitting in commercial matters, 24 May 2022, no. 99/22–IV-COM, role number CAL-2022-00093

The manager of a SICAV with multiple sub-funds, organised in the form of a Luxembourg corporate partnership limited by shares (the Fund), refused to comply with the request made by a limited shareholder holding all the shares of a sub-fund of the Fund (the Sub-Fund) to convene a general meeting of the Sub-Fund to dissolve the Sub-Fund. To deny the request, the manager invoked, among other things, the fact that article 450-8 of the 1915 Law applies to the Fund in its entirety and not to each sub-fund of the Fund.

As a reminder, article 450-8 of the 1915 Law allows a shareholder representing 10% of the share capital of a public limited liability company to request that the management body convene a general meeting. If, following this request, the general meeting is not held within one month, the shareholder can request that the president of the District Court appoint a representative who will be empowered to convene this meeting.

Accordingly, the limited shareholder requested that the judge appoint a representative to convene a general meeting of the Sub-Fund in order to dissolve the Sub-Fund. The president of the District Court accepted the limited shareholder’s request and the Luxembourg Court of Appeal confirmed the decision of the first judge.

In its ruling, the Court of Appeal considered the following elements:

• the provisions of article 450-8 of the 1915 Law apply to corporate partnerships limited by shares;
• when a judge is seized on the basis of this provision, it must limit itself to examining whether the conditions of admissibility of the request are met, namely that a shareholder holding at least 10% of the share capital has addressed a written request to the manager indicating an agenda and whether the addressee has refused to grant it; and
• the main conditions for the admissibility of the limited shareholder’s request had been met: (i) the limited shareholder was a shareholder of the Fund, (ii) the limited shareholder had validly addressed its request for convening a meeting to the Fund’s manager, indicating the agenda, and (iii) the manager had refused to accede to the limited shareholder’s request.

The Court of Appeal then indicated that the parties disagreed on the question of whether the 10% shareholding required by article 450-8 of the 1915 Law should be assessed in relation to the entire share capital of the Fund or only in relation to the share capital of the Sub-Fund. The manager referred in particular to the provisions of Article 26 (1) of the law of 13 February 2007 on specialised investment funds, according to which SICAVs are subject to the general provisions applicable to commercial companies insofar as they are not derogated from by law, and to those of article 71 of said law, which provides that each sub-fund is treated as a separate entity, unless the articles of association provide otherwise. Following an examination of these statutory provisions, the Court of Appeal concluded that the Fund’s articles of association did not contain any such derogation clause. On the contrary, they included provisions reinforcing the existence of a certain autonomy for each sub-fund in relation to the Fund as a whole. In addition, the provision of the Fund’s articles of association dealing with the general meetings of a sub-fund on any matter concerning that sub-fund referred to the provisions of the 1915 Law for the terms and rules applicable. The Court of Appeal concluded that the president of the District Court was correct in holding that each sub-fund should be considered as a separate entity.

Thus, considering that the provisions of the articles of association expressed the desire to respect the particular interests of the shareholders of the various sub-funds as separate entities enjoying a certain degree of autonomy, the Court of Appeal ruled that when shareholders of a fund with multiple sub-funds formulate questions relating to the single sub-fund of which they are shareholders, the condition relating to 10% of the share capital must be assessed in relation to this single sub-fund.

In this judgment, the Court of Appeal also confirmed that urgency is not a condition for the application of article 450-8 of the 1915 Law. Consequently, when a shareholder requests that a general meeting be held with a specific agenda, the management body has no other choice than to set the date for the general meeting within the legal time limits. It is not up to the management body to assess whether the agenda provided by the shareholder is in the interest of the company. When a judge is seized on the basis of article 450-8 of the 1915 Law, the judge must grant the request of the shareholders if they represent at least 10% of the share capital. It is not the judge’s role to assess the validity, effects or consequences of resolutions taken at general meetings, nor is it judge of the opportunity (juge de l’opportunité) of the requested measure.

This decision recalls that in a fund with multiple sub-funds, the shareholders of a sub-fund holding 10% of the share capital of this sub-fund may request the convening of a general meeting of this sub-fund, unless the articles of association provide that the sub-fund is not to be treated as a separate entity.

5. Passive survival of a liquidated company – An action may be initiated within five years after the closing of the liquidation, regardless of whether the action is directed against the struck off company or its liquidator

Luxembourg Court of Appeal sitting in labour matters, 14 July 2022, no. 98/22–III-TRAV, role number CAL-2021-00114

In 2014, a Luxembourg public limited liability company (the Company) hired an individual (the Employee) under a permanent contract as “CEO conducting officer”. According to the Employee, this contract was amended in January 2016, as a result of which the employment relationship was to be terminated by mutual agreement before 30 June 2016, or, if earlier, at the time of the transfer of all the Company’s shares. In the event of early termination of the employment contract, the Employee was entitled to receive a “termination indemnity”. By an agreement dated 8 June 2016, the last day of effective work was set at 8 June 2016 and the Employee was to receive a termination indemnity amounting to approximately 32,000 euros. The Employee brought an action before the Labour Court in order to receive a sum corresponding to the net amount of the indemnity, and not the gross amount as paid by the Company. He also claimed that he had been provided with company housing for which the Company paid the rent. Following the termination of the employment contract, the lease was transferred to the Employee but, due to a lack of income, he had to leave the premises. He therefore claimed reimbursement of the rent for the period July 2016 – February 2017.

The Employee brought the case before the judge in November 2018, more than a year after the publication of the Company’s liquidation. The claim was directed against the Company, represented by its liquidator.

At first instance, the judge declared the request inadmissible on the grounds that, in order to benefit from the theory of passive survival of the liquidated company, the request should have been filed before the closure of the liquidation. The judge added that the claim was directed against the Company and not against the liquidator in that capacity, and that in any event it did not have jurisdiction (as a Labour Court) to hear a claim made on this basis.

The Luxembourg Court of Appeal accepted the appeal against the judgment of the Labour Court.

The Court noted that:

• according to article 1400-6, item 3 of the 1915 Law, actions against liquidators in this capacity are proscribed for a period of five years from the publication of the closure of the liquidation. In this case, the publication had occurred on 26 June 2017, more than a year before the request was filed with the Labour Court; and
• after the closure of a liquidation, the extinction of a company is not absolute and it follows implicitly, from article 1400-6, item 3 of the 1915 Law, that a company continues to exist in order to respond to the actions that its creditors can exercise against it in the person of its liquidators, as long as the statute of limitations is not acquired by the lapse of five years from the publication of the closure of the liquidation.

Consequently, even though the liquidation of the Company had been published on 26 June 2017, the Company survived for five years and could still defend itself against actions brought by creditors against it, in the person of its liquidator. The Court indicated that it was irrelevant in this respect that the claim was directed against the Company, represented by its liquidator, and not against the liquidator itself. The request was therefore deemed admissible.

On the merits of the case, the Court found that it had not been sufficiently investigated and was not in a position to be resolved. It therefore referred the case back to the Labour Court.

This decision confirms (i) the applicability of the theory of passive survival, (ii) the starting point of the five-year period (from the publication of the closure of the liquidation) and (iii) the possibility of bringing an action either against the company represented by its liquidator or against the liquidator as such.

6. Misuse of corporate assets – The use of the company’s assets is abusive if it undermines the company’s assets or if it exposes the company without necessity to abnormal and serious risks

Luxembourg District Court, 14 July 2022, Not. 17197/21/CD + 881/22/CD, role number 1965-2022

In 2014, an individual (the Defendant) had been appointed director of a Luxembourg public limited liability company, which was a family company (the Company), and, in 2020, he had been entrusted with the daily management of the Company. A few months later, all his mandates were revoked. His brother took over the management of the Company and discovered that the Defendant had carried out a number of financial transactions from the Company’s accounts for his personal needs for an amount exceeding 350,000 euros (bank transfers, private plane flights, purchase of a computer, etc.). The Company brought an action against the former director for misuse of corporate assets. The Company also claimed damages for its material loss.

The Luxembourg District Court confirmed that the misuse of corporate assets requires the combination of four constitutive elements:

• the status of a director;
• the use of corporate assets or credit of the company;
• a use contrary to the company’s interest; and
• the moral element: (i) the pursuit of a personal interest, and (ii) a conscious use in bad faith.

The District Court then found the following:

• the first two elements of the offence were undisputed: the Defendant was a director of the Company throughout the relevant period and had paid invoices with the Company’s funds;
• with respect to the third element of the offence (the infringement of the company’s interest), the Court indicated that an act contrary to a company’s interest is defined in a very broad way by case law, the classic example being that of a director who freely draws from a company’s funds for his personal needs. The Court also recalled that French case law goes much further, as it considers as tortious any act which causes an abnormal risk to the company’s assets. In order for the offence to be retained, the social assets must have been exposed to “a risk to which they should not have been exposed”. The taking of risk may therefore give rise to prosecution. The Court concluded that the use of corporate assets is abusive when it is contrary to the interests of the company, i.e. when it damages the company’s assets or if it exposes the company, without necessity, to abnormal and serious risks. The Court then indicated that “corporate assets” must be understood broadly and that they must belong to the company in order to be the object of a misuse of corporate assets. This includes any material thing that can be appropriated, all the company’s assets, movable and immovable, and all intangible property. In addition, the Court recalled that French case law considers the use for personal purposes of the company’s equipment and personnel, or the employment of company employees for the personal needs of the chairman of the board of directors of a limited company, an abuse of corporate assets.

The District Court noted that in the present case, the expenses incurred by the Defendant did not fall within the Company’s corporate purpose and were not made in the Company’s interest;

• as for the moral element of the offence, the judge considered that the Defendant had knowingly used the Company’s funds to cover his personal expenses. The moral element was therefore established.

Regarding the question of damages, the District Court declared the claim well-founded and ordered the Defendant to pay the amount claimed.

In this decision, the District Court also ruled on another case in which the Defendant was prosecuted for misappropriating funds in another company. The facts were very similar: the Defendant had been a director of the company and was subsequently dismissed from his position. His brother took over the management of the company and discovered
transactions made from the company’s accounts for his brother’s personal use. The Defendant was also convicted of the misuse of corporate assets and ordered to pay damages for the loss suffered by the company.

This decision recalls the criteria for the misuse of corporate assets and that the use of company assets is abusive not only when it damages those assets, but also when it exposes the company, without need, to abnormal and serious risks.

7. Abuse of majority – Request for judicial revocation of the liquidator – The request must be accompanied by a request for nullity of the general meeting’s decision affected by the abuse of majority

Luxembourg Court of Appeal sitting in commercial matters, 6 December 2022, no. 192/22–IV-COM, role number 44537

The minority shareholder (the Minority Shareholder) of a public limited liability company (the Company) initiated a claim against the majority shareholder for having imposed, during a general meeting of the Company deciding on the dissolution of the Company, the appointment of the members of the board of directors of the Company as liquidators of the Company.

The Minority Shareholder further claimed that the liquidators of the Company had committed serious breaches of their duties (continuation of the company’s activities, fraudulent manoeuvres, bad faith, no filing for bankruptcy, etc.).

The Minority Shareholder requested that the judge declare this an abuse of majority and dismiss and replace the liquidators. The judge declared the action admissible but unfounded.

The Court of Appeal reversed the first instance judgment and declared the claim inadmissible. The Court noted that requests for the dismissal of a liquidator appointed by the general meeting following an abuse of majority are not very frequent in case law. Nevertheless, according to the latest Belgian and French case law, it is accepted that liquidators duly appointed by the general meeting of shareholders can be dismissed by a court decision “for just cause” or “for legitimate reasons”. However, the Court specified that the judicial dismissal of a liquidator is only possible in exceptional cases and under certain conditions.

The Court then noted that the Minority Shareholder had requested the dismissal and replacement of the liquidators without requesting the annulment of the general meeting’s decision to refuse to proceed with the dismissal and replacement of the liquidators.

The Court confirmed that for an abuse of majority to occur during a decision of a general meeting, the decision must have been taken contrary to the company’s interests and with the sole aim of favouring the majority shareholders to the detriment of the minority shareholders. The Court further stated that the abuse of majority is firmly rooted in case law and is almost always invoked as a basis for requests to annul a resolution taken by a general meeting. When such a request is made, judges must limit themselves to verifying whether there is a breach of equality between the shareholders and whether the decision taken is not contrary to the interests of the company. The appropriateness (l’opportunité) of the resolution taken by the general meeting is beyond a judge’s control, as it can only be assessed by the general meeting of shareholders. The Court added that, according to doctrine and case law, the action based on abuse of majority leads either to the nullity of the abusive resolution or to the granting of damages and, exceptionally, to the appointment of a provisional administrator. The Court concluded that the annulment of the allegedly vitiated resolution is the natural sanction for the abuse of majority and that its annulment should have been requested.

The Court concluded that in the absence of a request for annulment of both the decision to appoint the members of the board of directors as liquidators and the decision to refuse to revoke the liquidators, the request to have the liquidators removed and replaced was inadmissible, the revocation alone having no influence on the acts performed by the liquidators since their appointment.

This decision confirms that the judicial dismissal of a liquidator is only possible in exceptional circumstances and under certain conditions. It also reminds us that the request must be accompanied by a request for nullity of the general meeting’s decision which is affected by the abuse of majority.

8. Abuse of equality – Abuse of equality by a shareholder presupposes the wrongful exercise of a voting right at a general meeting of shareholders

Luxembourg Court of Appeal sitting in civil matters, 21 December 2022, no. 183/22 – VII – CIV, role number CAL-2021-00076

Shareholder A and Shareholder B were each 50% shareholders of a Luxembourg public limited liability company (the Company), and were both, together with two other persons, directors of the Company. Shareholder A accused Shareholder B of blocking any proposal made by Shareholder A for the sole purpose of seeking the liquidation of the Company. In particular, Shareholder A invoked the fact that Shareholder B had given advance notice of its refusal to review the composition of the board of directors which had been requested by Shareholder A.

Shareholder A requested that the Luxembourg District Court appoint an ad hoc administrator (administrateur ad hoc) to call a general meeting of the Company’s shareholders to revoke the existing board members and replace them with new directors.

At first instance, the Luxembourg District Court declared the request admissible but unfounded. The Court stated that the abuse of equality necessarily consists of the use of the voting rights attached to the shares at a general meeting for a purpose other than the company’s interest. In the absence of a general meeting of the Company’s shareholders, no abuse of equality by voting rights could be held against Shareholder B.

The Court of Appeal confirmed the decision of the first instance judges. It stated that the abuse of equality consists of the equal shareholder preventing a decision from being made. The equal shareholder must therefore act contrary to the company’s interest and prevent an essential operation for the company and act in their own interest at the expense of the other shareholders of the company.

For the Court of Appeal, the abuse of minority, as well as the abuse of equality, presupposes an abusive or wrongful vote to reject a decision contrary to the company’s interest in order to favour the shareholder’s own interests to the detriment of those of the shareholders’ meeting.

The abuse presupposes that it was committed through the exercise of the voting right in a general meeting or in a corporate body. The Court of Appeal recalled that a difference of opinion, a critical or even a negative attitude, or the announcement of opposition to measures envisaged by the majority or equal shareholders, expressed outside any statutory body, are insufficient to characterise an abuse of minority or an abuse of equality. The Court of Appeal also indicated that the abuse of equality committed by shareholders presupposes the regular convening of a general meeting and an expressed vote.

In the present case, no general meeting of the Company’s shareholders had been convened since 2015. The exchanges of letters between Shareholder A and Shareholder B concerning the proposal to replace the board of directors cannot be considered as a statutory general meeting.

This decision reiterates the conditions for abuse of equality and in particular the fact that this presupposes that a vote has been cast at a general meeting or a corporate body.

Footnotes

[1] Luxembourg Case law Briefing – Corporate Law Highlights 2021 Edition: https://www.allenovery.com/en-gb/global/news-and-insights/publications/luxembourg-case-law-briefing-corporate-law-highlights-2021

[2] Please note that this definition will apply throughout the entire document.

[3] Luxembourg Case law Briefing – Corporate Law Highlights 2022 Edition : https://www.allenovery.com/en-gb/global/news-and-insights/publications/luxembourg-case-law-briefing-corporate-law-highlights