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 CAC after the publication of the ‘opt-in’ decision. See our former blog article: link.

An answer to a parliamentary question should eliminate this undesirable consequence: see link. The minister replies that the EGM may decide that the ‘opt-in’ decision is valid among the shareholders as from the date that the decision is taken, provided that the decision is published. The requirement of the publication for purposes of the entry into force of the opt-in only seeks to protect the interests of third parties.

As a result, the EGM deciding to use the opt-in mechanism, can also discuss other items on the agenda applying the CAC, under the condition precedent of publication of the ‘opt-in’ decision and the related amendment to the articles of association, such as e.g. an amendment to the articles of association for which the abstentions are no longer considered as dissenting votes, or the decision that the capital and the legal reserves are no longer considered as unavailable, … According to the minister, the EGM can even decide to include in the same deed a modification of the corporate object applying the new CAC rules, i.e. without statement of assets and liabilities (which, however, was a formality to be complied with by the Board beforehand, when the (former) Company Code was still applicable).

Please note: the decision itself to opt-in must be taken according to the rules of the (former) Company Code with regard to the amendment of the articles of association (e.g. abstentions will still be considered as dissenting votes).

Anneleen Steeno, intui attorneys