Online incorporation of companies and other legal entities & statutory mandate database
Online and remote incorporation of companies and other legal entities
On 15 July 2021, the Company Law Digitalisation Act was published in the Belgian Official Gazette. This new act transposes the Directive (EU) 2019/1151 of 20 June 2019, which is part of the wider digitalisation process promoted by the European Union. This act is a new step towards the digitalisation and modernisation of company law.
After the introduction of the digital mandate allowing to remotely sign and execute authentic deeds such as deeds of amendment to the articles of association, and following the implementation of the articles of association database enabling the online consultation of all the articles of association and amendments that are executed by notary deed since 1 May 2019 (https://statuten.notaris.be), this new act allows since 1 August 2021 to digitally sign the authentic deed of incorporation of a company or other legal entity (such as an international non-profit organisation).
The novelty consists in the fact that, from now on, the authentic deed of incorporation of a company or other legal entity can be executed remotely by means of an electronic signature during a video conference with the notary public (with identification and signature by e-ID). This online incorporation process is available for all legal entities that require the execution of an authentic deed of incorporation, except for those companies that involve a contribution in kind.
The physical appearance will remain necessary if the notary suspects fraud or wants to verify the party’s legal capacity or authority to represent the legal entity on whose behalf it is acting.
In any case, the legal substantive requirements for the execution of the authentic deed continue to apply. The notary public shall still act as an independent intermediary and provide the necessary advice.
Time is money; so the publication of the deed of incorporation in the annexes to the Belgian Official Gazette will also go faster when the incorporation is executed online. These deeds will be published within ten working days starting from the execution date of the deed of incorporation and the payment of the publication costs. This time limit can even be reduced to five days, but only if the legal entity is exclusively founded by private persons who use the model for incorporation provided by the electronic platform.
Statutory mandate database
The new act also ensures that the statutory clauses providing the delegation of power to represent the legal entity vis-à-vis third parties – the so-called single, double or multiple signature clauses – are easily and quickly available online. Indeed, the act requires that these clauses, including their modification or abolition, are filed in the above-mentioned publicly available electronic database (separately from the articles of association).
In addition to the existing articles of association database, a (statutory) mandate database is now also established. For the record: this database exists alongside the online version of the Belgian Official Gazette in which the extracts of the articles of association, including the statutory delegations of the power of representation, remain accessible for consultation. This is applicable since 1 August 2021 for delegations of power of representation set forth in the articles of association and the amendments thereto, executed before a notary public in Belgium. For legal entities of which the existing statutory delegations of power of representation are not yet filed in the newly created mandate database, the filing thereof must take place simultaneously with the next deposit of a new coordinated version of the articles of association, regardless of the object of this coordination. In other words, when depositing the next amendment to the articles of association, the company will have to file at the same time the clauses regarding the delegation of the power of representation in the statutory mandate database. To do so, a company does not need to wait until the statutory provisions are amended or abolished.
To be clear: the database only provides an overview of the delegated powers of representation granted by the articles of association, and does not include the mandates that might be granted by an authentic or private deed to perform acts on behalf of a legal entity.
Entrepreneurs benefit from the amendments provided by the Company Law Digitalisation Act. The availability and the swiftness of the online incorporation of legal entities and the structured way in which important company law information is now easily made available, ensure that company law will be more in line with the ever more digitalized society.
Naomi Glibert, intui attorneys
Act of 12 July 2021 amending the Code for Companies and Associations and the Act of 16 March 1803 regulating the office of the notary and containing various provisions pursuant to the transposition of Directive (EU) 2019/1151 of the European Parliament and the Council of 20 June 2019 amending the Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law.
Directive (EU) 2019/1151 of the European Parliament and the Council of 20 June 2019 amending the Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law.