Among the unlimited liability companies are the partnerships. Partnerships include the simple partnership (maatschap/société simple), the general partnership (VOF/SNC) and the limited partnership (CommV/SComm). These partnerships are formed intuitu personae and entail unlimited and joint and several liability of the partners (in principle, with the exception of the “silent partner” in the limited partnership). These companies are less formal and can be formed by private agreement. Unfortunately, in practice, lack of knowledge or bad advice (at the time of incorporation or later, e.g. at the time of sale) often leads to undesirable situations (especially in the event of insolvency). Are there capital requirements to be taken into account when setting up different types of companies? As mentioned above, the new Companies Code has completely abolished capital requirements for the private limited company (BV/SRL). A minimum capital of at least EUR 61,500 is required for the formation of a public limited company (NV/SA). However, indifferent of the minimum capital requirement the limited liability companies must always have a sufficient initial capital at the time of incorporation to conduct the proposed activity for a period of two years. The amount of this initial capital must be substantiated in the financial plan. This initial capital must be fully plegded and - unless otherwise provided for in the memorandum and articles of association - must in principle be fully paid up at the time of incorporation. The responsibility for this also lies with the founder(s), whose personal liability has also been retained. Are there any general requirements or restrictions on the appointment of directors, such as a local residence or nationality requirement? From a company law perspective, there are few or no restrictions on directors or representatives of Belgian companies. - There is no statutory nationality requirement. However, nothing prevents the company’s articles of association from stipulating a nationality requirement. - No residency requirement. Directors who are resident abroad, irrespective of their nationality, are deemed to be resident (for the purposes of their directorship and for the duration thereof) at the address of the company’s registered office. However, local representation may be practical for administrative purposes or may be required by other legislation to obtain licences for certain activities (e.g. customs warehousing). - No age requirement. Again, the articles of association may provide for such requirements. Indeed, it does not seem appropriate that minors could be entrusted with a management mandate. - No educational or competence requirements. However, depending on the sector in which one operates (e.g. financial or insurance sector, regulated professions, etc.), there may be competence or training requirements. It should be noted, however, that the directorship must be exercised by virtue of the self-employed status. This does not preclude a director from being an employee at the same time, for other duties and under the authority of a body or agent within the same company. Not to be overlooked is the financial cap on directors’ liability in the new code. One change that has received less attention is that it is now possible for any type of company to adopt internal regulations, if the articles of association so provide. This is a welcome technique to regulate the internal kitchen in a way that binds both the company and its organs, and to strike a balance between the articles of association on the one hand and shareholders’ agreements on the other. What are the different types of vehicles/ legal forms for doing business in Belgium? In general, a distinction can be made between companies with full legal personality and companies without (full) legal personality. The main difference is the limited or unlimited liability of the shareholders. And, of course, the extent to which the company is regulated (including with regard to financial reporting, profit distribution, liability, formalities and disclosure, etc.). The choice between an incorporated and an unincorporated company depends on many factors. Ultimately, however, the specific needs of the proposed activity must always be taken into account. Obviously, it is preferable not to carry out a high-risk activity in a company with unlimited liability. Among the limited liability companies, the most common are the public limited company (NV/SA), the private limited company (BV/SRL) and the cooperative society (CV/SC). These companies can only be formed by notarial deed. There are strict reporting requirements and the liability of shareholders is generally limited to their contributions. WWW.LAWYER-MONTHLY.COM 21
RkJQdWJsaXNoZXIy Mjk3Mzkz