A New Company Code
On 23 March 2019, the Belgian Parliament approved a bill meant to fundamentally reshape the existing Company Code. The new Belgian Code on Companies and Associations (the ‘BCCA’) aims to make Belgium more attractive for both domestic and foreign businesses.
The BCCA will increase flexibility for Belgian companies, but will require them to amend their articles of association in order to bring them in line with the new regime.
Hereafter are the most critical changes with regard to companies:
From the SPRL/BVBA to the SRL/BV
The Société privée à responsabilité limitée (SPRL)/Besloten vennootschap met beperkte aansprakelijkheid (BVBA) remains as a company form, but has been rebranded as Société à responsabilité limitée (SRL)/Besloten vennootschap (BV). Its founders and shareholders will enjoy considerable contractual freedom in the drafting of the articles of association. Thanks to this flexibility, it is expected that the BV/SRL will become the standard form for limited liability companies
Main changes in the SRL/BV
The main changes in the SRL/BV regime are as follows:
No share capital/No minimum capital requirement
The concepts of share capital and minimum capital requirement have been abandoned for the BV/SRL. However, the founders of a BV/ SRL will have to provide ‘sufficient’ equity upon incorporation in view of the company’s anticipated activity, taking into account the other financing sources of the company. In this respect, the founders shall justify such equity amount in a more detailed financial plan than under the previous regime, and there will be a stronger emphasis on the founder’s liability.
For existing companies, share capital and legal reserve will be automatically converted into a statutory unavailable reserve (Capitaux propres/Eigen vermogen), which companies can make available for distribution by amending their articles of association.
Dissociation of political rights from financial rights
In the new regime, there is no necessary link between the value of the contribution and the rights attached to the shares. The reformed regime offers:
- the possibility to issue shares with multiple, conditional or even no voting rights for non-listed SRL/BVs and the possibility to grant double voting rights to ‘loyal’ shareholders for listed SRL/BVs. The rule “one share, one vote” is no longer mandatory.
- the possibility to allocate unequal economic rights attached to shares: there is no necessary link between the value of the contribution and the number of shares issued in exchange for it.
Possibility to make shares freely transferable and to admit them to trading on a regulated market
The rule of the consent of the shareholders for any transfer of shares, which was required in the SPRL/BVBA under the previous regime, has been adapted. Under the BCCA, the articles of association may opt out of this rule, for instance by stipulating that the shares are freely transferable.
Possibility for the shareholders to delegate to the directors the right to issue new shares
This possibility is similar to the authorized capital regime already existing in the SA/NV and has been extended to the SRL/BV.
Possibility to obtain shares in exchange for a labour contribution
The BCCA offers the possibility for the SRL/BV to be granted shares in exchange for the contribution of past or future labour.
Possibility to issue not only shares and regular bonds, but also any type of non-prohibited security (such as convertibles bonds, warrants…)
Possibility to distribute interim dividends to shareholders throughout the entire financial year
Distributions of interim dividends to shareholders are authorised by the BCCA but are subject to (i) a double check, consisting of a ‘solvency test’ (as a result of the distribution, the net assets of the company may not become negative) and a ‘liquidity test’ (the company must remain able to honour its debts within twelve months following the distribution) and (ii) a specific delegation to the directors in the articles of association.
Possibility to protect directors from dismissal by offering them notice periods and severance payments (or by imposing the obligation to give reasons for the dismissal)
Possibility for the board of directors to entrust daily management to one or more natural persons or legal entities (previously only possible for the SA/NV)
New rules applicable to exit or exclusion as a result of conflict between shareholders
Under the former regime, shareholders could be forced by the court to sell (judicial exclusion) or purchase (judicial exit) each other’s shares in case of “valid reasons” as a way to resolve conflicts within a company. The BCCA maintains those possibilities, but now explicitly confirms that the court will be bound by provisions in the articles of association or shareholders’ agreement which determine the price of the shares in such a case.
In addition, and this is a special feature of the SRL/BV, the articles of association may allow for the exclusion of a shareholder from the shareholders’ meeting for reasons specified therein, or conversely grant the possibility to the shareholders to have their shares redeemed by the company. This option must be provided in the articles of association and the distribution to the exiting shareholder must be postponed as long as the SRL/BV does not pass the solvency and liquidity tests.
The Société anonyme (SA)/Naamloze vennootschap (NV) remains as a company form while its regime is slightly amended.
The main changes relating to the SA/NVs include the possibility to :
- incorporate SA/NVs with a single shareholder;
- issue shares with multiple, conditional or no voting rights for non-listed SA/NVs; listed SA/NVs can grant double voting right to ‘loyal’ shareholders;
- allocate unequal economic rights attached to shares in SA/NVs;
- put in place a flexible governance structure consisting of a one-tier model (board of directors), a two-tier model (management board and supervisory board consisting of different persons) or a single director. In the latter case, it will be possible to appoint such director in the articles of association in order to secure his position and also to grant him extraordinary powers with respect to decisions of the general meeting of shareholders (veto right) in order to replicate the former regime of the ‘Société en Commandite par Actions/Commanditaire Vennootschap op Aandelen” which no longer exists as a specific form of company;
- protect directors in SA/NVs from dismissal by offering them notice periods and severance payments (or by imposing the obligation to give reasons for the dismissal);
- distribute interim dividends to shareholders throughout the entire financial year.
Four main differences remain between the SA and the SRL:
- the existence of a minimum share capital and the protective rules of this share capital in the SA/NV
- the possibility now offered to the SA/NV to have a true dual system consisting of a supervisory board and a management board
- the possibility of introducing in the SRL/BV, by means of a statutory clause, out of court exit and exclusion involving financial support by the company.
- the possibility for SRL/BV only to issue shares in exchange for a labour contribution
Focus on directors
Hereunder are the main changes relating to the directors, decision-making process and representation of Belgian companies:
Revocability of directors – The principle according to which directors of an NV/SA must at all times remain subject to dismissal free from restrictions (ad nutum) is abandoned, and the possibility to grant a severance payment or stipulate a notice period is now explicitly provided for.
Directors’ liability – The BCCA provides for the joint and several liability of the directors for negligence of the management body except for negligence in which they were not involved, provided they denounced the alleged negligence to the other members of the management body.
Liability cap for directors – The director liability is capped to certain amounts in case of ‘slight’ negligence. The monetary limit on the amount for which directors can be held liable ranges from EUR 125,000 to EUR 12 million, depending on the balance sheet total and turnover of the legal entity (except for listed companies where the highest cap always applies). The cap will however not apply to repeated negligence, gross negligence, fraud, any kind of liability towards the tax and social security authorities, and to various other special liability regimes.
Boards may adopt resolutions in writing – The board may unanimously adopt all resolutions in writing, unless the articles of association stipulate otherwise.
Permanent representatives – When a legal entity is appointed as a director, such legal entity must appoint a natural person as permanent representative. It is explicitly stated that a permanent representative of a legal entity cannot personally be appointed as a director of the same company. Under the BCC, the permanent representative had to be a shareholder, manager, director or employee of the legal entity. The BCCA abandons this requirement, which means that companies will now have more flexibility in appointing a permanent representative.
Daily management redefined – The board of directors may entrust daily management of the company to one or more natural persons or legal entities. This is henceforth also possible for a BV/SRL. The BCCA also gives for the first time a legal definition of daily management, which shall cover the day-to-day business of the company, as well as decisions and actions that are either urgent or have little impact.
E-mail address and website – Companies may include in their articles of association an official e-mail address and, where appropriate, a website.
Nationality of a company – Under Belgian conflict-of-law rules, the nationality of a company, and therefore the applicable company law, will no longer be determined by the place where management decisions are made (‘real seat theory’) but rather by the place where the registered office is located (‘incorporation theory’).
Hence, Belgian company law shall always apply to companies with registered offices in Belgium, even if they are effectively managed from abroad.
However, for corporate income tax purposes, the place of effective management will remain an important criterion for determining whether a company qualifies as a Belgian tax resident. Furthermore, environmental law, social law and insolvency law may use alternative criteria to determine in which situation they will apply to Belgian or foreign entities.
Mobility of companies – In order to guarantee the mobility of companies, the BCCA provides for new rules on the cross-border transfer and restructuring of companies without loss of their legal personality.
Entry into force in 3 steps
1st May 2019 – The BCCA immediately applies to new companies incorporated on or after 1st May 2019 and will progressively apply to existing companies which have acquired legal personality before that date.
1 January 2020 – Unless they elect to comply early and in full with the BCCA (opt in), the mandatory provisions will apply to existing companies as of 1 January 2020 even if the articles of association of the company have not been brought in line with the new BCCA. In such case, if a statutory clause is contrary to one of these mandatory provisions, the statutory clause will be deemed unwritten (and therefore will no longer be applied). However, as of that date, the BCCA’s non mandatory provisions will only apply to the extent that the articles of association do not deviate from them. Finally, if an existing company amends part of its articles of association prior to that date, it will have to modify them as a whole in order to bring them completely in line with the BCCA.
1st January 2024 – This date is the final deadline for existing companies and associations to bring their articles of association in line with BCCA and/or to convert into another company form. Company forms which have been abolished will then be automatically converted into a different company form and will have the obligation to amend their articles of association within six months. Directors shall be jointly and severally liable for any damage to the company, or to any third party, that is a result of the failure to adapt the articles of association to the BCCA in time.