The transposition of the Shareholders’ Rights Directive and the first adaptions of the BCC
Since 1 May 2019 the new Companies’ and Associations’ Code (BCC) has been applicable to new companies and associations. As of 1 January 2020, the mandatory provisions will also enter into force for existing companies and associations.
Nevertheless, a draft bill has already been submitted on 4 October 2019 to amend certain provisions of the BCC. In addition, this draft bill also includes the (late) transposition of the revised Shareholders’ Rights Directive (2017/828/EU).
Below is a brief explanation of the proposed novelties:
- Transposition of the Shareholders’ Rights Directive
The aim of the Shareholders’ Rights Directive is to promote the long-term engagement of shareholders in listed companies. The new rules should also create more transparency between listed companies and their investors. This should be obtained via different measures (see hereinafter).
The Shareholders’ Rights Directive is a so-called “minimum harmonization directive”. This means that Member States may impose additional obligations or take additional measures to achieve the objectives of the Directive. Belgium, however, opted for a verbatim transposition.
Direct communication between listed companies and their shareholders
In order to promote the involvement of shareholders, it is, according to the legislator, necessary that the company is able to communicate directly with its shareholders and that the latter are able to exercise their rights more easily.
To make this possible, listed companies are required to identify their shareholders. Therefore, the intermediaries through whom shares are held (in dematerialized form, e.g. an investment company) will be obliged to provide information about the identity of the shareholders (e.g. their name, contact details and the number of shares held).
Transparent remuneration policy
Listed companies must develop a remuneration policy and draw up a remuneration report upon which shareholders must vote. The obligations regarding the remuneration report under current Belgian law will continue to exist, but in addition, companies will be obliged to publish the individual remuneration of all persons in the management of the company. In this respect, the Shareholders’ Rights Directive tightens the current principles.
Transactions with related parties
Finally, there are new rules on related party transactions, which will have to be made public at the time of the transaction.
- Improvements to the BCC
Besides the transposition of the aforementioned Shareholders’ Rights Directive, the draft bill intends to already make a number of amendments to the BCC. These proposed amendments mainly consist of additions to omissions, rectifications and harmonization of wordings.
For example, in the provisions referring to the spouse of a shareholder, a reference to the legally cohabitating partner is added.
Moreover, the procedure for the exclusion and resignation of shareholders is harmonized for the ‘BV/SRL’ (private company) and the ‘CV/SC’ (cooperative company), whereby the impossibility of doing so during the first three financial years is abolished within the BV.
The draft bill also clarifies that a listed BV must have a collegial management body.
For the ‘NV/SA’ (public limited liability company), it is confirmed, among other things, that the requirement of a two-thirds majority within the general meeting to introduce double voting rights is mandatory (which means that a relaxation of this quota is not possible).
The objective of the draft bill appears to be the enhancement of the readability and coherence of the BCC, without making any major substantive changes.
Once the draft bill is adopted, the following timeline would apply:
- The amendments to the BCC will enter into force the day they are published in the Belgian Official Gazette;
- The transposition of the Shareholders’ Rights Directive will enter into force in accordance with general law, being ten days after publication in the Belgian Official Gazette;
- Finally, the provisions on the identification of shareholders will only enter into force on 3 September 2020.
 Draft bill of 4 October 2019 to transpose Directive (EU) 2017/828 of the European Parliament and of the Council of 17 May 2017 amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement, and regarding corporates’ and associations’ provisions, 0553/001, see www.dekamer.be/FLWB/PDF/55/0553/55K0553001.pdf.