The Law of 12 July 2021 introduces two novelties regarding the use of digital instruments in the Belgian legal landscape. Since 1 August 2021, it is now possible to both digitally incorporate a legal entity as well as register its mandates in an online database.
The incorporation by means of an digital platform requires an electronic signature. Parties, as long as they are Belgian nationals, can identify themselves and sign the authentic deed with their ID card by using a card reader or through the itsme ID app, which will be verified by the notary. With regards to foreign parties, the incorporation will be valid as far as the identification is done through any system which provides safety guarantees of the same level as an ID card-reader or the itsme app. The admissibility of such system will therefore be evaluated on a case-by-case basis.
Since the authentication can be done through a video conference, physical presence is in principle no longer needed. The notary will nevertheless act as a legal gatekeeper: in case of suspicion of fraud or an alleged problem of capacity and/or authority, physical attendance will be required. Digitally forming a legal entity will only take 10 working days or less, depending on the circumstances. To the effect, the Belgian government has created the startmybusiness.be website which facilitates the incorporation process.
Furthermore, the Law establishes the use of a digital mandate database which will be freely accessible and open to all legal persons. The Belgian legislator had previously announced the same database’s entry into force but limited to a company’s articles of association. As of 1 August 2021, the authority to represent a legal person vis-à-vis third parties, any modifications thereto or the partial or total revocation of such representation authority, will be added to that same database. To facilitate its consultation, the different mandates will be given a qualification of metadata (e.g. sole representation, two-signature clause, etc.) Entities whose articles of association (and their mandate clauses) are not added to the database yet, will be included at the occasion of next amendment of their articles of association.
The creation of the mandate database remedies the current issues of outdated or wrong information in the Crossroads Bank for Enterprises (CBE) as well as the burdensome task of searching through the Belgian State Gazette when seeking information on a legal entity. However, not all entities will be registered in the database immediately. As a result it might therefore take some time before this initiative reaches its full potential.
