Mandatory amendment of your company’s articles of association: help I missed the deadline!
On 1th January 2024, the deadline to comply your company’s articles with the provisions of the new Companies and Associations Code (“CAC”, in force since 1th May 2019) expired. Does this mean that your company will have to pay a fine? Could your company be dissolved? You can read about it below.
Relative impact for company forms that remain
If your articles of association were not amended in time then your company will not automatically be dissolved. Note that a “CVBA” that does not qualify with the definition of a cooperative society, had to change its legal form before the deadline. If you have not taken any action, your “unauthorised” cooperative society is currently in an uncertain situation. After all, the CAC provides for the conversion by operation of law to a limited liability company, but does not regulate (the momentum of) the assessment of “unauthorised” character. Moreover, the “unauthorised” cooperative society can be judicially dissolved at the request of any interested party. The court can, however, grant a remedy period. So, it is best to choose to convert your ‘unauthorised’ cooperative society into another company form as soon as possible.
Nor does the expiration of the deadline mean that the supplementary provisions of the CAC now automatically supersede differing provisions or arrangements in the articles of association. In principle, these remain valid as long as they do not conflict with the mandatory provisions of the CAC. Indeed, these mandatory provisions already apply to all companies since 1th January 2020. Statutory provisions that conflict with them, are already considered to be unwritten since this date.
Nor will the company be fined as a sanction. However, the directors will be personally and jointly and severally liable for any damage that the company or any third party would suffer as a result of not complying with the CAC. Such liability, and especially damages, will often remain a rather theoretical point. E.g. what is the damage if your articles of association refer to “capital” instead of “contribution”, or refer to an article from the old Companies Code whilst this article has been resumed in the CAC? Nevertheless, damages are not excluded. Just think of subsidy applications or public tenders, which often require your company to comply with all Belgian legislation.
Greater impact with company forms that disappear
If your company had one of the legal forms listed below and you have not amended the articles of association/legal form, your company has been legally converted (ipso jure) with effect from 1th January 2024 as follows:
- a “Comm.VA” becomes a “NV“ with a sole director;
- an “ESV” and “CVOA” become a “VOF”;
- a “CVBA” not fulfilling the definition of cooperative society becomes a “BV”;
- a “landbouwvennootschap” becomes a “VOF”, and if there was already a silent partner a “CommV”; and
- a “beroepsfederatie” and a “federatie van beroepsverenigingen” becomes a “VZW”.
The legal rules for the new legal form may differ substantially from those in your current legal form. This may lead to e.g. an invalid board of directors, board resolutions becoming null and void, the question may arise whether the company can still be validly represented externally? This may be a stumbling block for closing an important financing.
Additional deadline 30th June 2024
If your company was legally converted into another legal form, the board must convene a shareholders meeting by 30th June 2024 at the latest, to amend the articles of association to reflect the changed legal form. Again, the directors are personally and jointly and severally liable for the damages suffered by the company or third parties as a result of the failure to comply with this obligation. Of course, a causal link between the non-compliance with the obligation and the alleged damages, will have to be demonstrated, which is not always obvious in practice.
Conclusion
Although the penalties are relative and the consequences only have a substantial impact on certain companies, there are no reasons to wait any longer. Moreover, the flexibility of the CAC offers various possibilities to structure your company in a tailor-made way, for example also in function of your succession.
Bart Brunet and Sara Burm
De Langhe Attorneys
