At the request of our Minister of Justice, Koen Geens, a group of company law lawyers have been working for the past two years on a huge reform of the Belgian Company Code. Important changes have been proposed to the Parliament, which will discuss the proposed changes in June and should adopt a law that is likely to significantly change our company law in the ensuing months.
The proposed changes are as follows:
- The new Code should include all rules regarding associations and foundations, thus becoming a “Company and Association Code”.
- The existing forms of associations and foundations will be limited and only the “ASBL” “AISBL” “Fondation” will remain.
- There will no longer be 15 company forms but a maximum of 8 (the exact number is still to be determined).
- The distinction between civil company and commercial company will be abolished.
- The “Société de droit commun” will remain the only company without legal personality (which means the “Société Momentanée” “joint venture” will disappear).
- The SPRL/BVBA Starter and the SPRL/BVBAU will disappear.
- The “Clauses léonines” (exonerating total risk) will no longer be void.
- Ideally, the authors would like to authorize all company acts in English or even in other languages.
- As to the localization of the management, the current “real seat” criteria will be replaced by the “registered seat” criteria.
- The SPRL/BVBA will be fully reviewed:
- The new regime of the SPRL/BVBA will be based on the Dutch BV.
- No minimum capital will be required for the incorporation of an SPRL/BVBA.
- It will be possible to incorporate an SPRL/BVBA with only one shareholder.
- There will be the option for an SPRL/BVBA to have variable capital, giving each shareholder the right to enter and withdraw from the company in the same way as a shareholder in a “société cooperative”.
- Terms and definitions in the new Company Code will be harmonized.
- The distribution of benefits will be based on (i) a “solvency test” under the control of the shareholders’ general meeting and (ii) a “liquidity test” under the control of the auditor (the “net assets” test will disappear)
- The limitations on the transfer of shares will become optional.
- The principle “one share - one vote” will become optional, with “multiple voting shares” being a possibility.
- The “SA/NV” will also be fully reviewed:
- It will be possible to incorporate an SA/NV with only one shareholder.
- It will be possible to have one director only (the principle of collegial management will be abolished).
- The principle of the “ad nutum dismissal” of directors will no longer be mandatory but will be optional.
- The concept of “gestion journalière”/“dagelijks bestuur”( day-to-day management) will be abolished and replaced with a system of delegation of powers.
- The “monistic system” of management will remain but the “dualist system” will be allowed (on an optional basis).
- It will be possible to amend the articles of association by a 2/3 majority at an EGM (instead of 3/4 today).
Cedric Guyot de Mishaegen (cedric.guyot@cms-db.com)
