The SRD II and technical amendments to the Belgian Code on Companies and Associations

Written on 12 May 2020

Nearly one year after the Belgian Code on Companies and Associations (BCCA) entered into force on 1 May 2019, the Belgian legislators used the implementation of the SRD II as an opportunity to fix some inaccuracies and oversights observed during the first year of the BCCA.

Whilst some changes are minor and consist of clerical rectifications, others have a clear impact on companies and associations. The most important ones are listed below:

Private limited liability companies (BV/SRL)

  • clarification that a listed private limited liability company (BV/SRL) must have a collegial management body.
  • the fact that all shares have come to be held by one person as well as the identity of this person must now be filed with the company file. This obligation already applied to limited liability companies (NV/SA).
  • certification is also possible for convertible bonds and for subscription rights in private limited liability companies (BV/SRL).
  • clarification that the board of directors may issue convertible bonds and subscription rights within the framework of the authorised capital.
  • holders of shares without voting rights are also entitled to participate in general meetings.
  • confirmation that the management body may use the authorised capital procedure foreseen in Article 5:134 BCCA for the issue of subscription rights (inschrijvingsrechten/droits de souscriptions) while restricting or excluding the preferential subscription right of the shareholders in favour of one or more designated persons who are not employees.

 

Public limited liability companies (NV/SA)

  • The permanent representative of a legal person who is the sole director of a limited liability company (NV/SA) whose articles of association provide that the director is jointly and severally liable for the obligations of the company, shall not be personally held for the obligations of the legal person. The same rule applies to the permanent representative of a legal person who is also a director and a partner in a general (vennootschap onder firma/société en nom collectif) or in an ordinary limited partnership (commanditaire vennootschap/société en commandite).
  • There are new entries to be included in the register of registered profit-sharing certificates for limited liability companies (NV/SA), such as the restrictions on transferability.
  • The majority laid down for the introduction of double voting rights in listed companies (2/3 of the votes cast) may only be derogated from by a provision in the articles of association which specifically refers to the introduction of double voting rights.

 

International not-for-profit association (IVZW/AISBL)

  • The articles of association of an international not-for-profit association (IVZW/AISBL) may freely determine which body (e.g. the management body) can decide upon the dissolution (including also the dissolution and liquidation in one deed) of the international not-for-profit association (IVZW/AISBL).
  • The section regarding daily management is abolished. This means that the articles of association of an international not-for-profit association (IVZW/AISBL) can now freely organise the daily management of the association.

 

Multiple applications

  • Clarification that the articles of association may extend the powers of the general meeting in private limited liability companies (BV/SRL), cooperative company (CS/SC) and in limited liability companies (NV/SA), but that such extension will not be enforceable against third parties even if it is published.
  • The extension of certain rights currently granted to the shareholder's spouse to the shareholder's legal cohabitant. For instance, in private limited liability company (BV/SRL), the consent of at least one half of the shareholders is no longer required if the shares are transferred to the legal cohabitant.
  • The appointment, dismissal and powers of the daily manager no longer need to be determined in the articles of association for private limited liability companies (BV/SRL) or cooperative companies (CS/SC).
  • Various clarifications regarding the report establishment requirement in case of corporate restructuring. For instance, the report of the management body is only required in case of a contribution of universality, not in case of a contribution of a branch of activity.