Companies and non-profit organisations can now be set up completely digitally. This is done using the digital platform ‘JustAct’ on Just-on-web, which has replaced the outdated eGriffie website. The aim of ‘JustAct’ is to reduce the administrative hassles associated with incorporation.
Digital incorporation is only possible for legal forms for which a notarised deed is not required. This is the case when establishing a limited partnership (CommV/SComm), a general partnership (VOF/SNC), a European economic interest grouping (EEIG) or a non-profit organisation (VZW/ASBL).
The involvement of a notary is still required when setting up a private company (BV/SRL), a public limited company (NV/SA), a cooperative company (CV/SC) or a non-profit association (IVZW/AISBL). Completely digital incorporation therefore remains impossible for these legal forms.
‘JustAct’ is accessible to anyone and uses a simple step-by-step plan, enabling companies and associations to be set up more efficiently, quickly and cheaply. In a subsequent phase it will also be possible to set up branches, amend articles of association and dismiss and appoint directors. This last possibility will be especially welcome (see below).
Another important step in the digitisation of company records is the articles of association database. Since 1 May 2019, this database has made it possible to consult the articles of association of legal entities that have been incorporated (by notarised deed or otherwise) or have implemented an amendment to the articles of association before a Belgian notary since that date.
In the case of older legal entities that have not yet adapted their articles of association to the Companies and Associations Code (although this should have been done by 31 December 2023 at the latest), the articles of association still have to be consulted at the registry of the business court of the place where the legal entity has its registered office.
Since 1 August 2021, all representation powers listed in the articles of association of legal entities and arising from notarial deeds executed in Belgium, from the legal entity’s incorporation until the most recent amendment of the articles of association, must be stored in the ‘mandates database’. This database is also part of the legal entity’s official records and can be consulted via the articles of association database mentioned above.
The purpose of the mandates database is to make it easier for third parties to look up the representative powers of legal entities.
The obligation to register representation arrangements in the mandates database applies in principle to all legal forms, although it is initially confined to the arrangements recorded in notarised deeds of incorporation and amendment. This means all statutory representation arrangements for, for example, directors, executive directors, liquidators, members of the executive board and members of the supervisory board.
There are three types of representation arrangement: generic (e.g. for every director), functional (e.g. for the managing director) or nominal (e.g. for director X).
Only enforceable representation arrangements have to be listed in the mandates database – in other words, not any quantitative or qualitative limitations of authority.
As a result of digitisation, in the corporate context as elsewhere documents and contracts are increasingly being signed electronically. Minutes and reports are often signed completely electronically these days.
There are various types of electronic signature that can be used, depending on the type of document that needs to be signed.
This signature is very simple and quick to carry out, but less verifiable than the other forms of electronic signature because it cannot be clearly assigned to an individual.
Example: PIN code or password, scanned signature, clicking on an ‘I agree’ button
An AES requires additional steps for user authentication: the signatory is asked to provide a valid document to confirm his or her identity, as well as a unique passcode after the signing process.
Advanced electronic signatures also require a digital certificate to be generated and attached to the digital envelope as part of the signing process.
Example: DocuSign, Adobe Sign, SignHere
A QES includes the most extensive identification process and must meet certain government specifications. This type of signature is equivalent to a handwritten pen-and-paper signature.
Example: Itsme
More information about electronic signatures can be found in our earlier contribution.
Traditionally, communication between the company and its shareholders took place by ordinary or registered post. Today there is the option of using electronic communication. Both shareholders and directors can provide an email address to be used for all communication about the company.
The company itself can include an email address in its articles of association, via which it can then be legally contacted by all stakeholders.
This means, for example, that the convening notices for a general meeting can now be sent by email. To persons for whom the company does not have an email address, the notice will still be sent by ordinary/registered post, on the same day as the electronic notice is sent.
The Companies and Associations Code states that the administrative body may offer holders of securities (shares, subscription rights, certificates and convertible bonds) the possibility of attending the general meeting remotely via an electronic means of communication made available by the company (e.g. Microsoft Teams or Zoom).
This electronic means of communication must at least enable security-holders to follow discussions during the meeting directly, simultaneously and continuously and must enable shareholders to exercise their voting rights on all matters on which the meeting must decide. It must also allow them to take part in the discussions and ask questions.
Note that the general meeting’s officers must still be physically present at a meeting location, even if the shareholders are taking part electronically. In other words, a fully electronic general meeting cannot yet be held.
It is now also possible to create a register of shares in electronic form. The Federation of Notaries (FedNot) and the Institute for Tax Advisors and Accountants (IAB-IEC) have joined forces to create a secure digital securities register: ‘eStox’.
A digital register of shares can be consulted at any time and anywhere. Moreover, the register cannot be lost, potentially avoiding protracted arguments and possibly even legal proceedings as a result. The risk of manipulation by ill-intentioned parties and the possibility of inaccurate or illegible information being included are also drastically reduced.
Discretion is also assured: only the notary, certified accountant or tax advisor chosen by the company is given full access. Specifically added third parties (e.g. the company secretary) can also be given access rights if the company so wishes.
Although the digitisation of Belgian company law has definitely made progress, one aspect is still somewhat stuck in the past: publications of decisions made by the company’s decision-making bodies in the Belgian Official Gazette (such as dismissals and appointments, and relocations of the registered office). These remain on paper until further notice, with official announcements and changes still needing to be signed in the original and numerous additional documents having to be submitted in hard copy. It is a striking anomaly in an era where digitisation has become the norm.
