On 18 January 2012, the Law of 8 January 2012 on reporting and documentation requirements for mergers and demergers was published in the Belgian Official Journal (Belgisch Staatsblad/Moniteur belge) (Wet tot wijziging van het Wetboek van vennootschappen ingevolge Richtlijn 2009/109/EG wat verslaggevings- en documentatieverplichtingen in geval van fusies en splitsingen betreft/Loi modifiant le Code des sociétés à la suite de la Directive 2009/109/CE en ce qui concerne les obligations en matière de rapports et de documentation en cas de fusions ou de scissions) (the “Law”) (See also, this Newsletter, Volume 2011, No. 8). The Law aims to lighten the administrative burden and simplify the rules related to mergers and demergers of Belgian companies by relieving such companies from specific reporting and documentation requirements.
The Law provides that a report of the statutory auditor, an auditor or an independent expert on the capital increase by contribution in kind at the level of the absorbing/receiving company is no longer required, on condition that a member of one of these professional groups has already examined the draft (de)merger proposal and has issued a merger report. Conversely, in case all shareholders and holders of securities conferring voting rights on each of the companies involved in the (de)merger agree that an examination of the draft (de)merger proposal and a report in this respect are not needed, a report on the capital increase by contribution in kind at the level of the absorbing/receiving company will still be required.
Further, in case all shareholders agree, the board of directors should no longer report on the merger proposal and should no longer inform the shareholders’ meeting of any material change in its assets. Also, in case the company prepares half-yearly financial reports or in case all shareholders agree, specific accounting statements will no longer be necessary either. Moreover, the Law also allows for the provision of documents by electronic means (e.g., publication on the company’s website and electronic mail to the shareholders). Finally, in the case of a merger between a parent company and its subsidiary and if there is a limited economic impact for the shareholders and the creditors because the voting rights of the parent company amount to 90% or more of the shares and other securities in the subsidiary, the reporting and documentation requirements will be reduced as well. The same applies to companies being demerged into new companies pro rata the shareholdings in the dissolved company.
The Law entered into force on 28 January 2012 and applies to (de)mergers of which the proposal was filed with the clerk’s office after that date. The flow chart on the next page illustrates the new rules.
