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On 4 June 2018, the "draft legislation introducing the Companies and Associations Code" was filed in the Chamber, marking one of the most far-reaching corporate law reforms since the introduction of the coordinated laws on commercial companies on 30 November 1935.

The WVV ("CAC") is on its way

This extensive reform of corporate law corresponds with the introduction of the “Companies and Associations Code” (abbreviated as "WVV” - in Dutch “Wetboek van Vennootschappen en Verenigingen”) and is based on three key aspects: (i) a thorough simplification, (ii) a far-reaching flexibilisation, and (iii) an adaptation to a number of changes from the European level.

 

Limiting the number of legal entity types

In the context of the thorough simplification of corporate law, the number of (Belgian) legal entity types will be reduced dramatically. After all, the current Companies Code has 18 legal entity types (including the European legal entities).

The new legislation provides only 4 basic types:

  • The partnership;
  • The private company ("BV");
  • The limited liability company ("NV");
  • The cooperative company ("CV").

 

Limited companies and partnerships in the WVV

The partnership will become the most basic type of unlimited company that can exist both with or without a legal personality.

A partnership having legal personality can be modelled as a general partnership ("VOF") if it has unlimited partners or as a limited partnership ("CommV") if it has at least one silent partner.

In areas where the three remaining limited companies (BV, NV, CV) have a strongly overlapping scope in practice, they will be reinforced in terms of their distinguishing features.The BV will becomes the most essential type of limited company for SMEs.

 

Which legal entity types will disappear

With the introduction of the WVV, the following types of legal entities will disappear:

  • The temporary and the silent trading company
    The partnership can have both a quiet and a temporary character under the new law. As a result, there is no further need for a separate legal entity type.
  • The cooperative company (with unlimited liability (CVOA))
    The CVOA is increasingly rare under the current law. The cooperative company with limited liability will continue to exist, but will only be able to be used by companies that effectively propagate cooperative principles, which means that, as their main objective, they exist to meet the needs of shareholders or to develop the socio-economic activities of shareholders. If one wishes to establish a company with a legal personality, but with unlimited liability of its partners, one must revert to the VOF under the new legislation.
  • The partnership limited by shares (Comm. VA)
    The main reason for establishing a Comm. VA under the current laws is to create a limited company whose shares are freely transferable, but where a seemingly irremovable statutory director/managing partner can be appointed. Due to the flexibilisation of the NV and especially of the BV, the characteristics of a Comm. VA can be perfectly achieved under these new legal entity types.
  • The economic partnership (ESV)
    An ESV is a company that can be established by contract for a definite or indefinite period of time, by natural persons or legal entities, with the sole purpose of facilitating or developing the economic activities of its members, or to improve or increase their results. The objective of this rare legal entity type can be perfectly realised as a VOF, a CV or a non-profit organisation (VZW).
  • The agricultural company
    The agricultural company strongly resembles a VOF or a CommV, and is mainly used because it provides access to certain civil rights (e.g. leaseholds) and tax benefits. Under the new legislation, the agricultural company will disappear as a separate legal entity type, but the VOF, the CommV, the BV and the CV can be recognised as an agricultural company to provide continued access to the aforementioned benefits.
  • The company with social purpose
    At present, a company can assume the status of a company with a social purpose if it meets certain conditions. In the new WVV, this possibility will only be open to a CV, which can request recognition as a social enterprise.

 

Ratification

The new WVV will most likely take effect on 1 January 2019. After ratification of the new code, no new companies can be incorporated under or converted into a discontinued legal entity type.

For existing companies with an abolished legal entity type, a transitional arrangement will apply until 1 January 2024. For these companies the current Companies Code will continue to apply until the point in time that they are converted into another legal entity type, with the exception of a number of mandatory provisions from the new WVV that will apply immediately.

If they have not yet been converted into another legal entity type by 1 January 2024, they will be converted automatically by operation of law as follows:

  • The Comm. VA will become a limited liability company (‘NV’) with a sole director;
  • The agricultural company will become a VOF, or if there are silent partners, a CommV;
  • The ESV will become a VOF;
  • The CVOA will become a VOF;
  • The CVBA that does not meet the definition of a cooperative company will become a BV.

 

Sanctions

The members of the executive bodies of companies that are automatically converted in this way must convene a general meeting within six months of this conversion with a view to amending the articles of association. They are personally and severally liable for the damage suffered by the company or third parties due to non-compliance with this obligation.

 

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Bert Lutin
Bert Lutin
Partner Tax & Legal Services
Carl Boudewyn
Carl Boudewyn
Senior Manager Tax & Legal Services