Member Article

At the end of 2015, the Belgian Minister of Justice gave an overview of planned reforms of Belgian company law. These major reforms are scheduled to be passed by the Belgian parliament in the second half of 2017. Even though the relevant legislative texts are not yet available, details of the envisaged reforms are becoming clearer. In this news flash, we will describe some of the planned changes.

The purpose of the reforms

The reforms’ main goals are to simplify the existing legal framework and to give companies greater flexibility for their internal organisation. The idea is to make Belgian company law more attractive for Belgian and foreign investors.

The content of the reforms

Some of the main changes under the envisaged reforms can be summarized as follows:

1. Following the reforms, Belgian company law will apply if the company’s official registered office is located in Belgium (irrespective of whether or not the company’s real seat or head office is located in Belgium).

2. The number of legal forms for Belgian companies and associations will be reduced. Also, the distinctions between the various legal forms will become clearer.

- The public limited liability company form, the NV/SA, which is one of the company forms currently used by many large as well as mid-sized and smaller Belgian companies, will only be available to very large companies.

Only NV/SAs will be able to become listed.

The new law is intended to provide more flexibility for NV/SAs. For example, a dual-governing system in which there is a supervisory board and an executive management will be possible. Also, there will no longer be a requirement for the NV/SA to have a board of directors. One director will be sufficient.

- The cooperative limited liability company will only be an option for companies that effectively adopt a “cooperative” nature. The number of legal forms for associations will be limited. It will be clarified that associations can perform commercial acts as long as their profits are not distributed to their members.

3. The BVBA/SPRL is to become the central company form in Belgium for all small and mid-sized companies. To make the BVBA/SPRL company form more suitable for mid-sized and larger companies, the existing legal restrictions on the transferability of shares will be abolished. Also, the legal framework for BVBA/SPRLs that have a board of directors will be clarified.

BVBA/SPRLs will not have a share capital. This being said, however, the net assets of a BVBA/SPRL will be partly formed by shareholders contributions that will be represented by shares. It will be possible to create several categories of shares and multiple voting rights can be attached to one share.

A number of new rules will be introduced to protect the balance between the shareholders of a BVBA/SPRL (e.g., a procedure to determine the issuance price of new shares if contributions are made by the shareholders during the company’s existence). Creditors will be protected by, amongst other things, a requirement to incorporate the BVBA/SPRL with sufficient assets, a requirement for the founders to establish an elaborate financial plan, formalities relating to the valuation of contributions-in-kind by shareholders and an annual procedure to be complied with if the net assets of the company turn negative.

Dividend distributions will become more flexible. However, they will only be permitted to the extent that the company’s net assets remain positive after the distribution and provided that the board of directors approves the distribution after having performed a ‘liquidity’ test. The rules on the purchase of the company’s own shares and financial assistance will be simplified.

It has further been proposed that shareholders will be able to leave the company and receive reimbursement for their capital contribution upon their request. The details on the rules and requirements to exercise this right are not clear as yet.

4. With a view to modernising Belgian company law, a number of traditional Belgian company law rules that lead to practical problems will be abolished. Examples include:

- the requirement to incorporate NV/SAs and BVBA/SPRLs with more than one shareholder;

- the extended liability when an NV/SA or BVBA/SPRL has only one shareholder; and

- the rule that a director of an NV/SA’s can be terminated at any time.

It is unclear whether or not the rule that a shareholder cannot be completely removed from sharing the company’s losses (which restricts the opportunities for granting ‘put’ options to shareholders) will be upheld.

It seems that a legal definition of “day-to-day management” will also be introduced to clarify the scope of decision-making powers and representation powers of day-to-day managers and managing directors (CEOs).

Conclusion

It remains to be seen whether all of the envisaged changes will indeed be implemented into Belgian law. The envisaged reforms are quite far-reaching and cannot be completely separated from other legal areas (bankruptcy law, accounting law, tax law, social security law). A reform Bill concerning Belgian bankruptcy law is expected to be introduced in parliament shortly.

A question yet to be answered is how these reforms will be implemented and to what extent and by what timescale existing companies must convert to and adopt the new rules. As changes to company articles of association will still need to be passed before a public notary, there might be quite some resistance among Belgian entrepreneurs about any obligatory changes in the short-term.

If you have any questions in relation to the upcoming reforms, please do not hesitate to get in touch with Jérôme Vermeylen ([email protected] or +32 426 14 14) or Esther Goldschmidt ([email protected] or +32 426 14 14)