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Following on from the previous publication on the deadline for annual general meetings, this issue looks at the deadline for dividend payments.
Legal background
In accordance with Article 53 of the Revised Uniform Act on Commercial Companies and Economic Interest Groupings (AUSCGIE), shares confer on their holders a right to the profits made by the company once they have been approved for distribution. The portion of the profit attributable to each share is called a dividend.
Article 146 of the Uniform Act provides that dividends must be paid within a maximum period of nine (9) months following the end of the financial year, i.e. before 30 September each year. An extension of this period may be granted by a court decision upon application.
When a decision is taken by the court, it will set a precise deadline within which payment must be made.
New position of the Commercial Court
The Commercial Court has recently adopted a stricter position on Article 146:
➢ No extension filed after the legal deadline of 30 September may be granted by an order on foot of a petition (ex gratia procedure).
➢ After the 30 September deadline, an adversarial procedure must be initiated by a shareholder/associate holding a claim for an amount equal to his share of the dividends, in order to enjoin the legal representative and the company itself to pay the dividends.
Recommendations
This new position requires companies and their governance bodies to be even more vigilant when dealing with dividends to ensure that they are:
– Either that they are paid within the legal deadline (before 30 September);
– or to file a request for an extension of the dividend payment deadline before 30 September.
If payment is made after 30 September, and if no request for an extension has been signed by the competent court, difficulties may arise in making the dividend payment.