The extensive reform of Belgian company law has an impact on every type of Belgian company. This article provides a high-level overview of the most significant changes of the new Belgian Code for Companies and Associations (BCCA) for listed companies and is not intended to be exhaustive.
Definition of “listed company”
First off, the very definition of what constitutes a listed company is amended by the BCCA. Only companies with listed equity instruments like shares, profit certificates or share certificates will be considered listed companies. Companies with listed debt instruments will therefore no longer be considered listed companies.
Additionally, the concept of “companies having made an appeal on public savings” is abolished by the BCCA.
New and abolished legal forms
One of the main objectives of the BCCA was the simplification of Belgian company law. A number of legal forms was abolished and the flexible limited liability company (BV / SRL) replaced the existing private limited liability company (BVBA / SPRL).
One of the abolished legal forms is the partnership limited by shares (Comm. VA / SCA), which was the legal form of choice for many Real Estate Investment Trusts (REIT’s). These companies will all need to be converted into a public limited liability company (NV / SA).
The new BV / SRL can now be listed, although it is expected that the NV / SA will remain the legal form of choice for companies seeking a listing on a regulated market. This article therefore focuses mainly on the NV / SA.
The new governance options for listed companies reflect the second core principle of the BCCA, flexibility. Currently, Belgian listed companies are usually managed by a one-tier board, supplemented by an executive committee which has resulted in a hybrid governance structure midway between one-tier and two-tier management.
The BCCA abolishes the executive committee and allows listed company to opt for three different governance models:
- a one-tier board;
- a two-tier board; or
- a sole director.
The one-tier board is the traditional governance structure with a single board of directors composed, in principle, of at least three directors in charge of running the company.
The two-tier board is composed of a supervisory board and an executive board. Both are collegial bodies composed of minimum three directors and no director can be a member of both the supervisory and the executive boards. The appointment, dismissal and remuneration of the supervisory board is decided by the general meeting while the supervisory board decides on the appointment, dismissal and remuneration of the executive board. With the abolishment of the executive committee, it is expected that this governance model will become the model of choice for listed companies.
Finally, in the sole director model, the company is managed by a single director. For listed companies, however, the sole director must in turn be a NV / SA with a collegial board and all provisions regarding the board of directors apply mutatis mutandis to the sole director and its collegial board.
The BCCA provides for a single new independence criterion for directors, supplemented by more detailed criteria set out in the 2020 Corporate Governance Code which will take effect as of 1 January 2020 as the reference code for listed companies.
The BCCA expands the scope of the specific conflict of interest procedure applicable to transactions between listed companies and their affiliates which are not themselves subsidiaries of the listed company (previously article 524 of the Belgian Companies’ Code). In addition to being more broadly applicable, the sanction regime has been made more severe by allowing third parties (and no longer only the listed company itself) to bring a claim for nullity of a disputed transaction.
Loyalty voting shares
Possibly the most noteworthy change for listed companies is the introduction by the BCCA of loyalty voting shares. This mechanism can be introduced by Belgian listed companies by amending their articles of association. Contrary to a standard amendment of the articles of association, the loyalty voting mechanism only requires a two thirds qualified majority to be adopted.
Once adopted, any shareholder who has owned registered shares in the listed company for an uninterrupted period of two years will be entitled to a double voting right. The one-share-one-vote rule is thus no longer absolute.
It should be noted that once introduced, the loyalty voting mechanism applies to all shares equally. It is thus not possible to make it applicable exclusively to certain shares or shareholders.
Furthermore, the public takeover legislation has been amended so that loyalty voting shares are not taken into account when calculating the mandatory public takeover threshold. Questions have been raised, however, as to whether this approach is compliant with the EU Public Takeover Directive.
Finally, the BCCA introduces additional flexibility in respect of the acquisition of treasury shares, for example as part of share buyback programmes:
- the previous limitation that a company could only acquire treasury shares representing a maximum of 20% of the issued share capital, has been abolished;
- the general meeting deciding to authorise the acquisition of treasury shares, no longer needs to do so with a 80% qualified majority; 75% suffices;
- the sale of treasury shares no longer requires the prior approval by the general meeting.