The Act of 15 April 2018 regarding the reform of Belgian enterprise law has entered into force on 1 November 2018 (the Reform Act). The Reform Act introduces a new definition of an enterprise (onderneming / entreprise). This new definition lies amongst others at the basis of the competence of the court of enterprises (ondernemingsrechtbank / tribunal de l'entreprise), the rules of evidence between and against enterprises, the application of the rules regarding the registration with the Crossroads Bank for Enterprises (KBO / BCE) (CBE) and the application of the accounting rules.
1. New definition of 'enterprise'
According to the new article I.1.1° of the Code on Economic Law (Wetboek Economisch Recht / Code de Droit Economique) (ELC), an enterprise is any of the following organisations:
1. any natural person who carries out a professional activity on a self-employed basis
2. any legal person (rechtspersoon / personne morale)
3. any other organisation without legal personality
This new definition aims to replace any references to trader or merchant (handelaar / commerçant), 'commercial company' (handelsvennootschap / société commericale) and related concepts.
This new definition uses formal criteria, unlike the "old" definition that applied a functional criterion (pursuing an economic purpose). The use of formal criteria should provide more legal certainty and allows the definition to have a broader scope than economic sectors only. The functional definition will however still be used for the application of competition law, market practices law and the price control system.
Under the new definition, associations and foundations also qualify as enterprises, even when they do not pursue an economic purpose.
The following entities are not considered to be enterprises:
1. any organisation without legal personality that does not have a distribution purpose and that does not in fact make distributions to its members or persons exercising decisive influence on the policy of the organisation
2. any public body that does not offer goods or services on the market
3. the Federal State, the regions, the communities, the provinces, the townships
2. The court of enterprises
The court of commerce has been renamed the court of enterprises (ondernemingsrechtbank / tribunal de l'entreprise).
The court of enterprises is competent for any and all disputes between and against enterprises, as defined in the new article I.1.1° ELC, that do not fall within the specific competence of another court.
An exception is made for natural persons-enterprises with regards to disputes that concern an act which is not manifestly outside the scope of the enterprises' professional activities. In case of doubt, the court of enterprises will be competent.
The court of enterprises is also competent for any and all disputes between former, current or future shareholders, partners or members relating to the company, foundation or association concerned.
3. Rules of evidence
Notwithstanding any formal requirements, the rule of evidence by all means is extended to all enterprises (new article 1348bis of the Belgian Civil Code). This means that evidence between or against enterprises, as defined in the new article I.1.1° ELC, can be provided by all legal means, unless stipulated otherwise.
All means include evidence of the digital society, such as text messages, iMessage, e-mails, Whatsapp.
The accounts of an enterprise may be accepted as evidence between or against an enterprise. The accounts of an enterprise cannot, however, be used as evidence against a person who does not qualify as an enterprise.
An accepted invoice constitutes evidence against the enterprise concerned. If an enterprise, as defined in the new article I.1.1° ELC, does not protest an invoice within a reasonable time span, the enterprise will be deemed to have accepted the invoice and the invoice will constitute proof of the underlying obligations.
4. Registration with the CBE
To date, any commercial company (handelsonderneming / entreprise commercial), craft undertaking (ambachtsonderneming / entreprise artisanale) and non-commercial company established under private law (niet-handelsonderneming naar privaat recht / entreprise non commercial de droit privé) was required to register with the CBE.
With the Reform Act, this registration requirement has been extended to:
1. any legal person established under Belgian law
2. any other organisation without legal personality established under Belgian law
3. any enterprise with a seat, branch office or business unit in Belgium
The first two categories cover any legal person and any organisation without legal personality that is established under Belgian law, even if there is no activity in Belgium.
Natural persons carrying out a professional activity fall within the third category: he or she is subject to the registration requirement as soon as there is a seat, branch office or business unit in Belgium.
5. Accounting rules
The scope of application of the accounting requirements is aligned with the new enterprise definition. Any natural person carrying out a professional activity on a self-employed basis in Belgium, associations and foundations, and organisations without legal personality are now also subject to the accounting obligations imposed by Book III ELC.