Kapitalnedsættelse ved annullation af egne kapitalandele

The paper examines the treatment under the Danish Companies’ Act of a cancellation of treasury shares repurchased by the company for free reserves. The Act, unlike the Second Company Law Directive and its successor directive, does not distinguish between capital reductions directed against external shareholders and cancellation of treasury shares. As a consequence, administrative practice treats a cancellation of treasury shares as a capital decrease with payout to shareholders. The funds have, however, already left the company and the transactions are therefore different. Indeed, a cancellation of treasury shares presents less of a threat to creditors, and the creditor protective measures required pursuant to the Danish Companies’ Act also in these cases thus seem excessive. It is recommended that the model devised by the Second Company Law Directive is implemented in Danish law as it is more business friendly and provides adequate protection of creditors. Meanwhile, administrative practice should be changed to refer to a different legal basis in order to reflect the financial reality.