The Rule of Serious Loss of Capital

Morten Dau & Kevin Prahl Mølholm

Student thesis: Master thesis


The time of the serious capital loss, as it is stated in the Danish Companies Act art. 119 is a correct implementation of directive 2012/30/EU ́s Art. 19. Even though the directive has been properly implemented, the Danish Bankruptcy Act Art. 12, might constitute a problem in regards to the purpose of the directive. The Danish Bankruptcy Act Art. 12, gives the trustee a right to overrule judgements made by the general assembly, which might defy the purpose as set out in the directive.
The point at which the management is obliged to react to a serious capital loss, has however been vigorously discussed in Danish legal literature. The purpose behind the law, as referenced in this paper, shows a clear tendency for an objective interpretation of the rule.
Due to the wording and the function of art. 119 it cannot stand alone. For art. 119 to properly functions in full accordance with its wording, it needs capital invested in the company. As such the reason for implementing the rule on the Danish Entrepreneurial Limited Companies (Danish “(iværksætterselskaber (IVS)”) with a required minimum capital of only 1 DKK, doesn ́t make much sense. The effect on the Danish Private Limited Companies (Danish “Anpartsselskaber (ApS)”) is unclear, but reports from both the Danish and the Norwegian governments, shows a tendency towards lowering or removing the minimum capital demand. If the minimum capital demand, is lowered further or plainly removed, art. 119 ́s effect will have the same non-existing effect as it does in the case of the Entrepreneurial Limited Companies.
In regards to liability art. 119 cannot in itself pose a cause for liability for the management. As it is shown in the case rulings outlined in this paper a breach of the obligations set out in art. 119 can exacerbate the liability. The lack of liability imposed by art. 119, is one of the reasons why art. 119 isn ́t exactly optimal creditor protection.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2017
Number of pages126
SupervisorsSøren Friis Hansen