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1.1.1.2. Specific Constraints of Available Legal entities

Any type of Belgian company can be incorporated without prior governmental or judicial consent, except in the case of a regulated business such as banking, management of estates, insurance, and finance leasing. The formation of a pure holding company is not subject to any special requirement or authorization. However, if the company's statutory purpose includes the management of, or the provision of advice with respect to, third-party assets (beleggingsondernemingen/entreprises d'investissement), it falls under the regulations of the Law of 6 April 1995 on financial transactions and financial markets. In that case, the company must obtain prior authorization to exercise such activities from the CBFA. CBFA authorization is granted only where several conditions are satisfied, including:

  • a minimum paid-up capital of EUR 250,000;
  • effective management is exercised by at least two individuals (no legal entities);
  • CBFA is satisfied as to the capacity and suitability of the main shareholders; and
  • specific regulations with respect to the general organization (e.g. infrastructure, administration, accounting, control, the structure of the group, etc.) are complied with.

No specific restrictions apply. The founders/incorporators of an NV/SA, BVBA/SPRL or CVA/SCA may be individuals or legal entities, residents or non-residents, Belgian nationals or foreigners.

Public Limited Liability Company/NV/SA

The NV/SA is a Belgian company form that can be listed on the stock exchange.

An NV/SA can be incorporated in two different ways. Direct incorporation is the method whereby the incorporators appear in person or are represented by a holder of a power of attorney, and proceed at once with the incorporation of the company (Art. 450 Belgian Company Law Code). Incorporation by public subscription is the method whereby the company's charter of incorporation is drafted by the incorporators and subsequently published together with the subscription form in order to attract the necessary subscriptions to the planned issuance of shares. The subscribers shall be convened in the subscription form for a meeting (before a Notary) to be held within three months for the definitive incorporation of the company (Art. 451 BCL). If the majority of the subscribers do not oppose the incorporation of the company, the incorporators shall declare that it has been definitively incorporated (Art. 450 BCL).

In practice, indirect incorporation has almost completely disappeared, due to the risks which are inherent to such procedure. One can, however, avoid these risks by appealing to professional underwriters (e.g. financial institutions), who will sell the shares after the incorporation by means of a public offer.

Private Limited Liability Company/BVBA/SPRL/SRL

A BVBA/SPRL cannot be incorporated indirectly. Only direct incorporation is allowed with respect to a BVBA/SPRL.

The basic requirements must be evidenced in an authenticated (notarial) deed. An abstract of this notarial instrument must be deposited with the Clerk (Griffie) of the Commercial Court and must be published in the annexes of the Belgian Official Gazette (Belgisch Staatsblad/Moniteurbelge (BS/MB)). Effective 1 May 2019, the concept of listing a private limited liability company/SRL is introduced by the code.

Effective from 1 May 2019, no minimum share capital is required and only sufficient funds to carry out activities are required at the time of incorporation.

CVA/SCA (abolished effective 1 May 2019)

In the case of a CVA/SCA, two categories of shareholders/founders are required:

  • one or more managing partners who have unlimited liability and have the exclusive authority to manage the company's affairs (general partners); and
  • limited partners whose liability is limited to the amounts contributed to the company, and who have no authority whatsoever to manage the company's affairs (silent partners).

The managing partner of a CVA/SCA can be a corporate entity with limited liability. The Law of 2 August 2002 on corporate governance, however, introduced the obligation for any company that acts as a director or managing partner in another company to appoint a natural person as its permanent representative. This natural person bears the same liabilities as the company fulfilling the mandate of a director or managing partner.

Number of Shareholders

At least two persons are needed for the incorporation of an NV/SA (till 30 April 2019) or a CVA/SCA. A BVBA/SPRL/SRL may be incorporated by one individual (Art. 212 BCL). If the sole incorporator of a BVBA is a corporate entity, the incorporator is jointly and severally liable to interested parties for all obligations entered into by the company as long as there is only one shareholder (Art. 213 BCL).

After the incorporation of an NV/SA, the number of shareholders may not drop below two for any period longer than 12 months. If after such period, there is still only one shareholder, the sole shareholder will be held jointly and severally liable for the debts of the company until either (i) a second shareholder is found, (ii) the company is transformed into a BVBA/SPRL, or (iii) the company is liquidated (Art. 646 BCL). Effective 1 May 2019 (or 1 January 2020 for the existing company), a SA/public limited liability company can have only one shareholder.

In case a legal entity becomes the sole shareholder of a BVBA/SPRL and no new shareholder has joined the company within 12 months or it has not been wound up, the sole shareholder shall be considered to be a joint and several guarantor of any obligations of the company arising after he acquired all the shares until a new shareholder has joined the company or until the publication of its winding-up (Art. 213 BCL).

Costs

The fees payable for registering the company amount to EUR 130, plus EUR 70 per additional office or establishment.

The publication costs in the annexes of the Official Gazette of the excerpt of the notarial deeds are:

  • EUR 202.31 per publication; and
  • EUR 126.55 for changes

The publication of the annual accounts is subject to charges of EUR 415.82 or EUR 391.62 if the accounts are submitted on paper or on disk, respectively (reduced to EUR 190.76 and EUR 166.56 respectively for the simplified accounts.)

Transformation and Migration of Companies

The transformation of an NV/SA, CVA/SCA or BVBA/SPRL/SRL into another legal company form or partnership requires the amendment of the articles of association of the company. An amendment of the articles of association that relates to the legal form or the statutory purpose of the company requires a quorum of at least one half of the company's capital, and also at least one half of the total number of securities not representing capital if any. If this condition is not satisfied, a new convening notice is required for a second meeting for which there are no specific quorum requirements.

The provisions related to a CVA/SCA company have been abolished effective 1 May 2019.

In any event, the proposed amendment shall be adopted only if approved by at least four-fifths of the votes present (Arts. 287, 559 and 657 BCL).

Management and Substance Requirements

NV/SA

The NV/SA is managed by a board of directors (raad vanbestuur/conseil d'administration) which must be composed of at least three directors (bestuurders/administrateurs) who may be Belgian or foreign individuals or legal entities (Art. 518 BCL). The number is reduced to two if the company has only two shareholders. A director of an NV/SA cannot be appointed in the articles of association. It is, however, always possible to include this appointment in another part of the deed of incorporation. The directors of an NV/SA are appointed for a maximum period of six years. They are, however, always eligible for re-election (Arts. 518 and 519 BCL).

Effective from 1 May 2019 (or effective from 1 January 2020 for existing companies), the NV/SA can appoint a single director instead of a board of directors and can have an optional two-tier system, with a management board and a supervisory board.

CVA/SCA (abolished effective 1 May 2019)

The CVA/SCA is managed by managing or working shareholders. The silent shareholders cannot act as managers. In case this rule is violated, the silent shareholder loses his limited liability and becomes fully and severally liable for all debts and liabilities of the company together with the managing shareholder (Art. 656 BCL).

The manager(s) bear(s) full responsibility for the affairs and the liabilities of the company. He/they must be nominated in the articles of association of the company. In case of death or inability to perform his/their functions, the successors to the manager(s) can also be nominated in the articles of association.

BVBA/SPRL/SRL

The BVBA/SPRL/SRL is managed by one or more managers (zaakvoerders/gérants) who may or may not be shareholders (Art. 255 BCL). They are appointed either in the articles of association or by the shareholders for the entire life of the BVBA/SPRL/SRL unless the articles of association or the shareholders stipulate otherwise.

Types of Shares

An NV/SA, BVBA/SPRL/SRL or CVA/SCA may issue shares without attached voting rights (Arts. 238, 476 and 657 BCL). The provisions related to a CVA/SCA company have been abolished effective 1 May 2019.

These non-voting shares must meet the following conditions:

  • they may not represent more than one-third of the share capital;
  • the holders must be entitled to a preferential dividend;
  • they must grant a legal priority to the repayment of their consideration; and
  • the holders must also benefit from participation in the liquidation surplus.

The holders of shares without voting rights regain voting rights in the following cases (Arts. 240 and 481 BCL):

  • the above-mentioned conditions under which shares without voting rights may be issued by the company are no longer satisfied;
  • votes in which the rights attached to the different types of shares are altered;
  • votes on dissolution, merger or division of the company, change of purpose of the company, transformation of the legal form of the company and decrease of the capital;
  • decisions on the increase of capital in which the pre-emption rights of existing shareholders are abolished or restricted, or authorizing the board of directors to increase the capital with the abolition or restriction of the pre-emption rights of existing shareholders; or
  • preferential dividends to which a shareholder without voting rights is entitled have not been made fully accessible in the last three book years. The right to vote terminates at the moment at which all payable preferential dividends have been made fully accessible.

Effective from 1 May 2019 (or effective from 1 January 2020 for existing companies), the BVBA / SRPL / SRL is permitted to issue shares with one vote, shares with multiple voting rights, shares without voting rights and shares with voting rights under specific circumstances. Further, the NV/SA is permitted to issue shares with multiple voting rights, except in case of a listed NV/SA where dual voting rights may be required.

An NV/SA or CVA/SCA can also issue profit certificates that do not represent a part of the share capital (Arts. 483 and 657 BCL). A BVBA/SPRL, however, cannot issue certificates that do not represent a part of the share capital (Art. 238 BCL).

The holders of these profit shares, which do not represent a contribution of the capital, have no voting rights unless explicitly provided otherwise in the articles of association. Where the latter is the case, the holders of such certificates cannot be entitled to more than one vote per security, and the total number of votes related to these certificates may never exceed one half of the number of votes related to all capital shares, and no more than two thirds of votes cast by the shares representing the share capital (Art. 542 BCL). These profit certificates could be used as a valid instrument for protection against a takeover or for granting voting rights to the management.

Effective 1 May 2019 (or 1 January 2020 for existing companies), a BVBA/SRPL/SRL will be able to issue all securities including warrants, convertible bonds which are not prohibited by law.

Transfer of Shares

NV/SA and CVA/SCA

The shares are in principle freely transferable, irrespective of their form (i.e. registered, to bearer or dematerialized). The articles of association or any other convention can, however, provide certain restrictions to this transferability. Such limitations on the transfer of shares must be limited in time and may not be contrary to the interests of the company (Arts. 510 and 657 {BCL}).

Such limitations on the transfer of shares will in most cases consist of an acceptance clause and/or a pre-emption right. If this is the case, these clauses may not prevent the transferability of the shares for more than six months from the moment that they are invoked. The same rules apply to provisions in the articles of association or in any agreement restricting the transferability of warrants and convertible bonds.

The Royal Decree of 8 October 2008 has changed the rules concerning shares of an NV. The most important change is the relaxation of the rules on the acquisition of own shares. The so-called "financial assistance" is no longer prohibited but made possible under certain circumstances (control by the society board and against reasonable conditions, preliminary approval by the General Meeting, the duty of report by the Board, susceptible for payment and payment of a fair price by the third-party). Other changes include the deposit in kind which no longer needs preliminary expertise and the buying back of own shares which is possible for up to 20% (in the past: 10%).

The provisions related to a CVA/SCA company have been abolished effective 1 May 2019.

BVBA/SPRL/SRL

Unless the articles of association provide for more stringent provisions, the shares may not be transferred during life or after the death of a shareholder, other than with the consent of at least one half of the shareholders, holding 75% of the share capital, less the rights in respect of which the transfer is proposed (Art. 249 {BCL}).

Unless the articles of association provide otherwise, such consent shall, however, not be required if the shares are transferred:

  • to a shareholder;
  • to a spouse of the transferor or the testator;
  • to blood relatives in the direct ascending or descending line; or
  • to other persons permitted by the articles of association.

Effective 1 May 2019 (or 1 January 2020 for existing companies), there will be no restriction on transferability of shares.

Control of Transfer of Shares - Prior Authorization

In the case of a public takeover bid or a private transfer of controlling participation in a Belgian public company, prior disclosure of the identity of the acquirer and the conditions of the offer as well as notification of the CBFA may be required.

Compulsory Transfer

Arts. 334 and 636 of the BCL regulate the possibility for certain shareholders of a non-public NV/SA and of a BVBA/SPRL to file a demand with the courts in order to force another shareholder to transfer his shares (and other convertible securities in his possession) to the initiators of the procedure. This demand cannot be made by the company itself, nor by its subsidiary. The initiator of this procedure will have to establish that he has legitimate reasons (e.g. serious default to fulfill certain obligations, abuse of majority or minority position, etc.) to demand this compulsory transfer.

Such demand can only validly be filed by shareholders who, individually or collectively, hold at least:

  • 30% of all the voting rights;
  • 20% of the voting rights if the company has issued securities which do not represent the capital; or
  • 30% of the share capital.

Similar to the procedure described above, Arts. 340 and 642 of the {BCL} stipulate that every shareholder, who has legitimate reasons thereto, can file a demand with the court in order to force other shareholders, to which these reasons apply, to purchase his shares. In this case, his personal interest is taken into account more than in the procedure described above (since he is willing to give up his shares). No minimum percentage of voting rights/shares is required.

By way of so-called squeeze-out proceedings, a shareholder who, alone or in consent with others, owns 95% of the securities with voting rights, can force the shareholders who own the remaining 5% of the securities to sell him all of their shares (Art. 513 BCL). For public companies, these squeeze-out proceedings make it possible to end their listing on the stock exchange.

Registration

Shares may take one of three forms: registered, to bearer or dematerialized. Dematerialized shares are represented by an entry on an account kept with a recognized institution in the name of the shareholder. A dematerialized share is transferred from one account to another account. The articles of association must indicate whether the shares are registered, bearer or dematerialized (Art. 453(1)(5) BCL). In the case of a BVBA/SPRL, the shares must be registered.

As mentioned above, the Law of 14 December 2005 has been put in place to organize the gradual abolition of bearer shares. As from 1 January 2008, Belgian companies are no longer allowed to issue bearer shares. New shares, as from that date, will have to be registered or dematerialized shares.

Shares must also be registered if:

  • the articles of association so provide;
  • the share capital is not fully paid up (Art. 477 BCL); or
  • the shares are issued in the framework of a capital increase reserved to employees (Art. 609 BCL).

Duty to Keep Records

Each year the directors must prepare the inventory and the annual account which consists of a balance sheet and a profit and loss account with an explanatory memorandum (toelichting/annexe) (Art. 92 BCL). These documents must be drawn up in accordance with the regulations set forth under the Accounting Law and any other special law which may govern the relevant company (e.g. the Royal Decree of 1 September 1986 on annual accounts and the consolidated accounts of portfolio holding companies and the Royal Decree of 17 November 1994 on annual accounts of insurance companies).

While the Accounting Law does not require a directors' report (all necessary information must be contained in the explanatory memorandum), company law does require directors to draw up an annual report in which account is given of their policy during the year (Art. 95 BCL). The directors' report must include:

  • a commentary on the annual accounts giving a basis for a reliable survey of trends affecting the activities and position of the company;
  • details of any important events which occurred after the balance sheet date;
  • information on any circumstances that may have an important influence on the future development of the company, except when disclosing such information could cause serious disadvantage to the company;
  • information on current research and development activities;
  • a report on any capital increases or the issue of convertible bonds that have been effected;
  • information on the existence of branches of the company;
  • an account for the application of the valuation rules (going concern) in case the balance sheet shows a loss carried forward or in case a loss appears from the profit and loss account during two consecutive years (Art. 96 BCL); and
  • information on the use of financial instruments (programme law of 9 July 2004).

In addition, company law requires the board of directors to draw up special reports owing to special events during the book year (e.g. conflict of interest of a director (Art. 525 BCL); redemption of own shares (Art. 328 BCL); or decrease of the net value of the company (Arts. 535 and 633 BCL)).

These documents must be submitted to the statutory auditor(s) at least one month before the annual shareholders' meeting.

Disclosure to Shareholders

Fifteen days prior to the annual shareholders' meeting, shareholders may inspect the following documents at the seat of the company (Arts. 283, 553 and 657 BCL):

  • the annual accounts;
  • the list of securities held by the company;
  • the list of the shareholders whose shares are not paid up; and
  • the reports of the directors and of the supervisors.

Annual Accounts

Within 30 days after their approval by the general meeting, the annual accounts must be filed with the Belgian National Bank together with the following information (Art. 100 {BCL}):

  • the names of the directors and supervisors;
  • the allocation of profit (if not shown in the annual accounts);
  • details on the share capital;
  • the report of the statutory auditors; and
  • details on outstanding taxes, social security contributions, and debts guaranteed and subsidies granted by the public authorities.

Pursuant to a Royal Decree of 12 October 2004 (published in the Belgian Official Gazette on 15 October 2004) implementing Art. 129 bis BCL, the Federal public service is allowed to sanction companies that did not file their annual accounts within seven months following the closing of their financial year. The fines amount to EUR 200 per month for large companies and EUR 60 per month for small companies. The directors and managing directors of the company are jointly liable for these fines.

Consolidated Accounts

Companies and public undertakings established according to Belgian law, with a commercial, financial or industrial purpose, which, alone or jointly, control one or more Belgian or foreign subsidiaries, are required to prepare consolidated accounts, group financial statements, and directors' reports.

The criterion for consolidation is "control", i.e. the decisive influence on the appointment of a majority of the directors of the subsidiary enterprise or on the policy of the subsidiary. No distinction is made between direct or indirect control.

The consolidation obligation remains valid also if the subsidiaries are controlled by individuals or companies which are not obliged to keep annual accounts and business records.

However, no consolidation is required in some specific circumstances. Two of the most important exceptions to the consolidation obligation can be summarized as follows (Arts. 112 and 113 BCL):

  • if the parent company is, in turn, a subsidiary of another Belgian or foreign company which is itself required to produce and publish consolidated annual statements and reports; or
  • for small groups of companies, when not more than one of the following criteria is met:
    • net turnover exceeds EUR 25 million (excluding VAT);
    • balance sheet total equals at least EUR 12.5 million; or
    • personnel is in excess of 250 persons.

These exceptions are not applicable to companies listed on a stock exchange within the European Union (Art. 114 BCL).