Alessandro Pasut – Belgium: Concept of daily management

According to a ruling of the Belgian Supreme Court, a claim against a tax decision may be filed by the person vested with the daily management of a company, provided the legal dispute falls within the scope of this daily management. Nevertheless it has to be established in each case whether the respective dispute may be considered as falling within the scope of the daily management.
In a Court decision dating back to 1968, the Supreme Court defined the notion of daily management and distinguished two categories of acts that form part of it: acts which are required for the day-to-day running of the company; and acts of little significance requiring a rapid solution that cannot wait until an intervention of the board of directors.
This definition has been heavily criticized by experts who even made of the criteria associated with the second category of acts an alternative criterion instead of a cumulative one as stated by the Supreme Court.

In a decision issued in February  2009 regarding the question whether the filing of a tax claim could be considered as an act of daily management, the Supreme Court confirmed its definition of this concept and overruled a contested judgment pronounced by the court of appeal explaining that it  had failed to examine whether, in addition to being an act of little significance, the filing of the tax claim in question was an act requiring such an urgent solution that it could not wait until a meeting of the board of directors.
To avoid uncertainties related to the appreciation of the importance and urgency of a claim for the company, various solutions may be considered. The board of directors could grant a special power of attorney to the person vested with the daily management for each representation in sensitive areas, among others for the filing of a tax claim.

Another solution could be the establishment of an executive committee according to Article 524bis of the Belgian Companies Code, and to entrust this committee with the daily management besides its other managerial and representational powers. In addition to these a priori solutions, the ratification a posteriori by the board of directors of the acts of the person in charge of the daily management who has introduced the tax claim may be considered.

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