SOLVENCY TEST AS YARDSTICK FOR PRUDENT DIVIDEND DISTRIBUTION: A CROATIAN OUTLOOK

Abstract

Building their paper around long-standing critics of the EU capital maintenance regime and the distribution rules thereof, the authors consider introducing additional instruments for creditor protection into Croatian company law, where special regard is paid to the ‘solvency test’. Given the scope and aim of the EU Codification Directive, the paper seeks to find out whether and to what extent such a test could be introduced into Croatian law. The paper argues that the EU regime allows the introduction of the solvency test into Croatian law on public limited companies as a distribution test complementary to the two-fold ‘balance sheet test’ leaving, however, entirely to the Croatian legislator to decide about the place of the solvency test in private limited companies. Alongside the examination of legal sources and literature, the authors pursue their research by employing the systematic and teleological analysis of distribution rules under the Croatian Companies’ Act. That act has already introduced the ‘circumstances test’ as a yardstick for the assessment of the validi-ty of the decision to withhold dividend payment. After the introduction, the second part of the paper considers the concept of legal capital and provides an overview of potentially more efficient means of creditor protection. The third part analyses the Croatian legal capital regime, aiming at revisiting it in light of the solvency test. This part examines various solvency tests so as to decide which one could align with the Croatian distribution rules. The fourth part summarizes and concludes the paper.