Update: reply to parliamentary question about the opt-in: the EGM having decided to opt-in, can immediately take other decisions applying the CAC

Update: reply to parliamentary question about the opt-in: the EGM having decided to opt-in, can immediately take other decisions applying the CAC

In a former blog article, we pointed out the practical implications of the fact that the legislator, quite unfortunately, has linked the entry into force of the opt-in to the publication of such decision in the annexes of the Belgian Official Gazette and not to the actual time of the decision itself. In our opinion, it was not possible, after the ‘opt-in’ decision, to take other decisions by already applying the new CAC, and include them all in the same deed. We considered that the decisions other than the one related to the opt-in could only be taken applying the…


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Conflicts of interest under the new CAC - new rules, new questions and points of attention

Conflicts of interest under the new CAC – new rules, new questions and points of attention

The regulation set out in the Companies Code (CC) to manage conflicts of interest in cases of directors having conflicting proprietary interests is complicated, since it depends on the situation. Just think about the appointment of an ad hoc trustee in private limited companies (‘BVBA’ / ‘SPRL’) having no collegial board; the duty to abstain imposed on directors of listed public limited companies (‘genoteerde NV’ / ‘SA noteé’) which does not apply on directors of unlisted companies; the lack of statutory regulation for directors of non-profit organizations (‘VZW’ / ‘ASBL’) – the list goes on. The legislator has taken the…


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Transfer of shares not fully paid up: can the transferor be held liable for calls made for the unpaid portion?

Transfer of shares not fully paid up: can the transferor be held liable for calls made for the unpaid portion?

Shares that were not fully paid up at the time of issue can of course be transferred. But who is held liable for calls on these shares: the transferor or the transferee? The (old) Belgian Company Code included complex regulations for public limited companies (‘NV’ / ‘SA’): both the transferor and the transferee could be held liable up to the amount of the unpaid portion for the payment of company debts incurred before the transfer became effective, i.e. before registration in the share register if the claim is made by the company, or before publication of the list of shareholders…


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Opt-in only becomes applicable after publication of the amendment to the articles of association - practical implications

Opt-in only becomes applicable after publication of the amendment to the articles of association – practical implications

The new Companies and Associations Code (CAC) entered into force on 1 May 2019. This implies that newly incorporated companies whose deed of incorporation has been deposited at the registry on or after 1 May 2019, will be governed by the new CAC. For existing companies, a transition period is provided for until 1 January 2020. Until that date, they will still be governed by the former Companies Code. From 1 January 2020, the mandatory provisions of the CAC (including the additional provisions unless derogated from in the articles of association) will become applicable. The legislator enables existing companies however…


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Conversion of an abolished legal form: when and with or without application of the conversion procedure?

Conversion of an abolished legal form: when and with or without application of the conversion procedure?

The Company and Associations Code (CAC) reduces the number of legal forms and abolishes many of the currently existing legal forms. Within the category of companies without legal personality, the ‘tijdelijke handelsvennootschap’ (’société momentanée’) and the ‘stille handelsvennootschap’ (’société interne’) both disappear. Indeed, the same objective can be achieved through the form of the ‘maatschap’ (’société simple’), whether by setting up a ‘tijdelijke maatschap’ (’société simple momentanée’) for a limited period of time or a specific project, or a ‘stille maatschap’ (’société simple interne’) led by a manager who is acting in his own name. Within the category of companies…


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Opposability of statutory or conventional transfer restrictions

Opposability of statutory or conventional transfer restrictions

A shareholder sells his shares to a third party without having given to the other shareholders priority to acquire these shares pursuant to the right of first refusal included in the articles of association. Is this transfer to a third party valid? Or is it possible to oppose the transfer restriction to the third party-buyer? The Code for Companies and Associations stipulates that transfer restrictions included in the articles of association (such as right of first refusal, standstill provisions, tag along, clause of approval, etc.) are always opposable to third parties. The new Code thus confirms the majority opinion in…


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Mandatory recording of transfer restrictions in the share register

Mandatory recording of transfer restrictions in the share register

  The Code for Companies and Associations includes the obligation to record the transfer restrictions arising out of the articles of association in the share register. This obligation must be complied with by the company’s governing body. It aims at informing the third party-transferees as fully as possible of the existing transfer restrictions. As the transfer of nominal shares only becomes opposable to the company and third parties after having been recorded in the share register, it is to be expected that third party-transferees will always consult the share register, at the latest when recording their transfer. Transfer restrictions which…


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The new Belgian CAC also introduces a new governance model for public limited companies (‘NV’)

The new Belgian CAC also introduces a new governance model for public limited companies (‘NV’)

The draft of the new Companies and Associations Code (CAC) includes a new governance model for public limited companies (‘naamloze vennootschappen’, abbreviated into ‘NVs’). Henceforth, companies will have the choice between three governance models: the already existing monistic model; the sole director model; and the dualistic model consisting of a management board and a supervisory board. The new CAC also broadens the possibilities for appointing the managing director and defining his/her/its powers. Monistic governance model – weakening of the ad nutum withdrawal Publicly listed companies governed in accordance with the monistic model are managed by a traditional board comprising at…


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