regarding the composition, functioning or decision-making of the board of directors. What about directors’ liability? When thinking about directors’ liability, we should distinguish between internal liability (towards the company) and external liability (towards third parties). Internal liability (to the company) In relation to the company, directors have a legal duty to look after the interests of the company and to act loyally and in good faith. In practice, this means, among other things, that directors have a noncompete obligation and a duty of discretion and confidentiality towards the company. The corporate opportunity doctrine, whereby directors must develop business opportunities within the company (and not misappropriate them for their own benefit), is also gradually finding its way into Belgian practice on the basis of the duty of loyalty. Directors are liable to the company (on both contractual and non-contractual For listed companies, gender quotas should also be taken into account. How is the company governed and managed, i.e. by directors or others? And how do they make decisions? The operation and management of companies in Belgium varies according to the legal structure chosen. In a limited company (BV/SRL) and a cooperative society (CV/SC), management is delegated to one or more directors. In principle, the board of directors in these companies does not act collectively but competitively (each director can take all actions). The articles of association may provide that they form a college (i.e. decide by majority). What is often overlooked in practice, however, is that opting for a collegiate board also entails joint and several liability on the part of the directors. Directors in these companies are in principle appointed for an indefinite period and can be removed at any time. Directors in these companies can also be appointed in the articles of association (which offers better protection against dismissal, for example if a director is also a minority shareholder and wants to retain some control). In a public limited company (NV/SA), the management can be organised in different ways. One can opt for a “monistic” board (i.e. a board consisting in principle of at least three directors, or a sole director if the articles of association so provide) or a “dualistic” board (i.e. a supervisory board with an executive committee below it). In public limited companies (NV/SA), the principle of collegiate management applies. This means that decisions are taken by majority vote. However, other arrangements are possible. Directors in public limited companies (NV/SA) are appointed for a maximum of six years. A sole director may be appointed for an indefinite period and may also be appointed by the articles of association. The day-to-day management of both private limited companies (BV/SRL), cooperative societies (CV/SC) and public limited companies (NV/SA) may be entrusted to one or more persons acting individually or jointly as a board. Exactly what this day-to-day management entails has been defined by the Supreme Court in the past, a definition that will be enshrined in law in 2019. It includes, on the one hand, decisions that do not go beyond the needs of the day-to-day life of the company and, on the other hand, acts or decisions that, because of their minor importance or urgency, do not justify the intervention of the governing body. The principle of competitive governance applies to partnerships. This means that each director has full powers and can take all decisions in the name and on behalf of the company alone. Much can be regulated in the articles of association or internal regulations 22 LAWYER MONTHLY DECEMBER 2023
RkJQdWJsaXNoZXIy Mjk3Mzkz