What are the main company types under the new Belgian Code for Companies and Associations?
The introduction by the Belgian legislator of a new Belgian Code for Companies and Associations (BCCA) had several objectives: a broad simplification of the current regime, a high degree of flexibility and an update of Belgian company law in view of European evolutions. In line with these objectives, and particularly the simplification objective, the legislator decided to reduce the number of existing company forms.
As a consequence hereof, the BCCA reduced the number of Belgian legal company forms to four main forms: the partnership (A), the limited liability company (B), the cooperative company (C) and the public limited liability company (D). Several company forms existing under the former Belgian Companies Code have therefore been abolished by the BCCA; e.g. the partnership limited by shares (Société en commandite par actions / Commanditaire vennootschap op aandelen).
The flexibility of the remaining four company types should however allow to introduce some of the defining characteristics of abolished company forms into one or more of the remaining company forms: e.g. while the partnership limited by shares is abolished, the BCCA allows for public limited liability companies (Sociétés anonymes / Naamloze vennootschappen) to have only one director (thereby allowing to introduce the “sole director” often used in partnerships limited by shares into public limited liability companies).
It should also be noted that, in line with the reforms introduced by the Belgian Economic Law Code, the distinction between civil companies and commercial companies has now been abolished.
A. The partnership (Société simple / Maatschap)
The partnership is the only company type without legal personality. A partnership may however acquire legal personality and become a general partnership (Société en nom collectif / Vennootschap onder firma) or a limited partnership (Société en commandite / Commanditaire vennootschap), depending on whether all or only certain partners will be jointly and severally liable for the partnership’s debts and liabilities.
De facto, the partnership covers several legal forms existing under the former Belgian Companies Code.
B. The limited liability company (Société à responsabilité limitée / Besloten vennootschap)
The limited liability company can be described as the successor of the private limited liability company (Société Privée à Responsabilitée Limitée / Besloten Vennootschap met Beperkte Aansprakelijkheid). The legislator's intention is to make this company the default company type. In order to make this possible, the legislator conceived a very flexible company, suitable for both small and large companies. This flexibility lies in the fact that most of the legal provisions organizing the limited liability company are now supplementary provisions, allowing shareholders to work out tailor made solutions. For more details about the main features of this company type, click here.
C. The cooperative company (Société cooperative / Coöperatieve vennootschap)
Under the Belgian Companies Code, the cooperative company was often chosen because of the flexibility the cooperative company offers in respect of the entry and withdrawal of shareholders. The legislator wanted to restore the cooperative company’s primary function, that of running a business on the basis of the cooperative ideal. Under the BCCA, the form of a cooperative company is therefore only available for companies wishing to act and grow in accordance with cooperative standards. For more details about the main features of this company type, click here.
Former cooperative companies which do not meet this test will have to opt for another corporate form, most likely that of a limited liability company (Société à responsabilité limitée / Besloten vennootschap) as this company form offers a comparable mechanism concerning the entry and withdrawal of shareholders.
D. The public limited liability company (Société anonyme / Naamloze vennootschap)
With regard to the public limited liability company, the Belgian legislator wanted it to recover its historical particularity, namely raising enough capital to develop a company of a certain size. The regime of the public limited liability company is therefore mainly intended for large companies, whether or not listed.
The flexibility introduced by the BCCA for public limited liability companies is certainly less than the one introduced for limited liability companies given EU law constraints. Some important innovations should nevertheless be highlighted:
- The rule on the “ad nutum” dismissal of a director (i.e. the possibility to dismiss a director at all times without any notice being due) has become a supplementary rule. It is therefore possible to provide for notice periods and/or notice in case of termination of a director mandate.
- In terms of governance, a public limited liability company must choose between different options: (i) a monistic structure (whereby the company is governed by a board of directors consisting of several directors), (ii) a true “dual system” whereby the company is governed by a management board (directieraad / conseil du direction), under supervision of a supervisory board (raad van toezicht / conseil du surveillance) or (iii) a sole directorship.
- As is the case for the limited liability company, the BCAC explicitly allows for shares with multiple voting rights (be it limited to a loyalty voting right for listed companies).