National Bank suffers unprecedented defeat over Merit Capital

20 mei 2022

16:03

The National Bank suffers a striking defeat in the file concerning the Antwerp stock exchange house Merit Capital. The Antwerp company court ruled on Friday that the provisional administrators may continue to work in the case.

Merit Capital lost its license as a brokerage firm at the beginning of this month, because the National Bank, as regulator for the sector, had decided that Merit could no longer function, partly due to financial shortages. That decision led to a showdown with the company and its shareholders.

The essence

  • In the battle for jurisdiction over stock exchange Merit Capital, the National Bank loses a battle; after the decision of the Antwerp company court that the provisional administrators may remain.
  • As a result, they can continue to work on the sale of the assets of Merit Capital.
  • There are two more candidate buyers in the running.
  • The National Bank can appeal against the precedent ruling.

That was fought before the Council of State, who agreed with the National Bank, but also for the Antwerp company court, among others. Who decided to appoint temporary administrators for the company, in an attempt to break through the deadlock surrounding the stock exchange. The administrators are trying to find a buyer for the assets of Merit Capital and thus a solution for the thousands of customers and their assets.

Jurisdiction

However, the National Bank had third-party objection registered against their appointment. Arguing that the court has no jurisdiction to intervene and that the administrators are not recognized by the National Bank to run a brokerage firm. According to the regulator, this can only be done by approved directors or the special commissioner, Dirk Smets, who started work at Merit at the beginning of 2021 by the National Bank.

It is not often that the National Bank has to defend itself legally and loses out.

However, the court ruled on Friday that the administrators may continue to work until September 30, unless their mandate is extended. De Tijd learned this and the information is confirmed by Patrick Hofströssler (Eubelius), the company’s lawyer, and press magistrate Frank Vennekens of the court. Merit Capital had argued that the court does have jurisdiction and is now hearing that statement.

According to the court, the supervision by the National Bank ‘does not entail any limitation of the powers of the courts’, according to the order in preliminary relief proceedings of the chairman of the court, which De Tijd was able to view. Conversely, the action of the court ‘in no way implies the substantive limitation of the rights of the supervisor’. The judge also seems to be captivated the National Bank between the lines by arguing for ‘more serenity’ in the file in order to arrive at a solution more quickly.

Sell

The decision may lead to a sale. The decision explicitly states the task of, among other things, ‘to look after and monitor the transfer of the assets (…), while taking into account the interests of the various parties involved’. The administrators must cooperate with Dirk Smets and must not affect his powers.

Supervision by the National Bank does not limit the powers of the courts.

Antwerp Business Court

It is not often that the National Bank has to defend itself legally and lose out. In this case it is even a first. The decision can be seen as a test of the legislation on financial players and the statutory powers of the National Bank. They will most likely appeal or take other action. Spokesperson Geert Sciot of the National Bank only said in a response that the bank will analyze the decision.

Two candidates

Kjell Swartelé (Vanhoucke Advocaten), one of the two finders, said Friday that there are still two candidate buyers left for the assets of Merit Capital. It concerns a Dutch and Luxembourg-French party. He calls the bids ‘very modest’, but they ‘have the advantage’ that, in addition to the rapidly shrinking customer base, they also aim for the complete takeover of the approximately 40-strong workforce. A buyer must get the approval of the National Bank.

According to his colleague-administrator Guy Vanhoucke, the decision demonstrates ‘taking into account the complexity of the problem, a resolute and particularly accurate insight, taking into account the interests of all stakeholders’.

New lawsuit against the National Bank

Merit Capital’s shareholders announce a lawsuit against the National Bank to seek damages for the rejection of Germany’s Renell Bank as an acquirer. According to them, that rejection was based on completely arbitrary grounds, says their lawyer Walter Van Steenbrugge. They are also intervening in a lawsuit brought by the directors of Merit against the National Bank and are continuing their proceedings on the merits against the withdrawal of the license before the Council of State. Earlier they also announced a criminal complaint against the regulator.

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