Reform of the Belgian Company Law
The law of February 28, 2019 (entered into force on May 1, 2019) introduced the new company regulations and aims to promote new companies by making the system more modern, more flexible and simpler.
What are the strengths of this new legislation?
1. THE DIFFERENCE BETWEEN CIVIL AND COMMERCIAL COMPANIES DISAPPEARS.
The old Code distinguished:
commercial companies with a commercial purpose
and non-commercial civil societies, such as a law firm.
The new Companies Code considers all companies, associations and foundations as “companies” which as such must be registered with the ECB (Cross-point Bank of Companies). This means that civil societies and associations can now also go bankrupt. The competent court for all these companies is the “company court” (the former “commercial court”).
2. FROM 17 COMPANIES TO 4
Of 17 legal forms, some of which were only useful for crossword puzzles and other quizzes – – only 4 remain available, fitting for all purposes.
A. The Privately Held Company (SRL)
The former SPRL became the SRL with several modifications:
- the SRL no longer requires capital. It is replaced by a “sufficient initial equity” from the start to carry out its activities. This new criterion reflects better the reality of the new society: the capital requirement is no longer absolute or arbitrary, but can be adapted to real needs. The contribution can also take the form of an “industry”, of an idea or even of working time. In-kind contributions are also possible, in the form of know-how for ex.
- reinforced financial (business) plan: given that the contribution of money or goods is no longer necessary and in order to verify that the founder(s) has/have provided sufficient means for the activity of the company, the establishment of the financial plan has been strengthened by containing all sources of funding, profits and expenses of the company for a period of at least two years after its incorporatio. As the founder(s) remain(s) responsible for this requirement for two years, a well-thought-out financial plan is more important than ever. The law even imposes certain criteria for this purpose by defining elements that the plan must absolutely contain.
The notary (= “Roman law notary, not to be confounded with a US-style “public notary”) will receive the financial plan during the drafting of the deed of incorporation and will check if the plan meets all the legal criteria but without taking care of the figures.
- reduction of the minimum number of shareholders from two to one. The latter may be a legal or natural person
- modification of the distribution of profits or reserves: the distribution of profits or reserves is only possible if the net assets do not become negative and if all the debts due can be reimbursed over a period of 12 months;
- The SRL becomes much more flexible: all categories of shares (except for beneficiary shares) can be issued. In addition, the choice exists to grant for each type of shares the number of votes that one wishes (none, one or more);
- shares can now be transferred more easily thanks to the simplification of the rules.
B. Public limited company (SA)
- The SA remains subject to European capital rules and will remain the benchmark company for large companies and listed companies.
- The initial capital of 61,500 euros is maintained.
- Introduction of a “key figure”. Under the new law, an SA can have a single director, compared to three previously. In addition, it becomes almost impossible to dismiss this director. This change opens up new possibilities for family transfers. Shares can already be given to children while the “pater familias” is appointed as sole director. It is almost impossible for children to fire their father/mother since the deed of establishment can contain a veto. The by-laws may even designate a successor in the event of the death of the sole director.
- May be formed by a single shareholder
- Freely transferable shares.
– At least “1 action with 1 vote”.
– In an SA and a SRL, the shares can be issued with multiple voting rights
– In principle, each share gives the right to one vote, but the statutes may derogate from this principle for: a. shares with multiple voting rights
- non-voting shares
- voting shares only under certain conditions.
C. Cooperative society (SC)
- Core capital: none
- However, sufficient initial equity is required (see SRL)
- The minimum of 3 founders is maintained.
- Actions not freely transferable.
This type is suitable for companies whose main purpose is to meet the needs of shareholders or develop their economic and social activities.
D. Simple society (SS)
- Capital nil. The goods contributed constitute the undivided patrimony.
- At least two partners.
- Registered and non-transferable shares (unless otherwise agreed).
Warning: simple creation, but more risky due to personal and unlimited liability
3. LIMITATION OF DIRECTORS’ LIABILITY
The directors’ liability in the event of misconduct will be limited to a certain ceiling, the maximum amount of which will depend on the total balance sheet and the turnover of the company during the last three years but this limitation does not apply to tax or social security debts, serious tax fraud, small but repetitive faults or serious misconduct, nor for any intention of fraud.
4. INTRODUCTION OF THE REGISTERED OFFICE
By this measure, the legislator wishes to increase the attractiveness of Belgium as a country of establishment for international companies. To do this, the following steps are taken:
- Company law applies in the country where the registered office is established.
- Cross-border travel is simplified.
- The relocation of the registered office has only consequences for company law. For example, tax law, social law, insolvency law and environmental law do not change.
- A Belgian company can move its registered office to another country and thus adopt the law of the other country.
- The statutes must explicitly mention the region of the headquarters. A move within the same region can therefore be done by a simple decision of the administrative body.
5. THE REFORM ALSO APPLIES TO EXISTING SOCIETIES AND ASSOCIATIONS.
It goes without saying that the law provides for intermediate measures (until 1st. January 2024) to adapt existing companies to the new regime. As this topic would go beyond the scope of this introduction, the author is at your disposal for any specific questions.