INVESTMENT LAWS- BELGIUM
Strategic location, centrally situated in the heart of Europe. Serving as residence to the European Union and the North Atlantic Treaty Organization (NATO), Belgium is at the forefront of political and economic activity. Technologically advanced and financially stimulated, with expansive support systems readily available, Belgium is poised for new investment.
For companies seeking a greenfield site, Belgium also offers the critical components of available labour, incentives, proximity to European markets and a quality infrastructure. No prior government authorisation required and no restriction on the transfer of capital into or out of Belgium.
Belgian company law recognises the commercial company in various forms.
The most common forms commercial companies can take are:
- the Company limited by shares (S.A./N.V.),
- the Private Limited Liability Company (S.P.R.L./B.V.B.A.),
- the Co-operative company,
- the European Economic Interest Grouping.
Companies aiming at incorporating in Belgium may decide between operating through a subsidiary (incorporated under Belgian law) or a branch (incorporated under the laws of a foreign country).
The basic characteristics for establishing a corporation as a subsidiary or as a branch are covered hereafter:
FORMATION OF A SUBSIDIARY
- A subsidiary in the form of a company organised under Belgian law is endowed with legal personality and hence forms a legal entity distinct from its parent.
- A subsidiary which takes the form of a Company Limited by Shares (S.A./N.V.) must be incorporated by notarial deed.
- A preliminary financial plan for a 2-year period must also be supplied.
- The articles of association and all documents regarding appointment of the directors and auditors must be filed with the Court of Commerce and must be published in the Belgian Official Gazette within fifteen days.
- The language of the documents is either French or Dutch depending on the region in which the business will be located.
- The components of the setting up costs are:
- the notary fees which are calculated as a decreasing percentage on the subscribed capital
- the registration tax of 0.5% on the subscribed capital
- the costs of publication in the Official Gazette.
- The subsidiary must be registered with the local Trade Register and must also apply for a VAT number (the latter does not entail any additional costs).
Share capital and organisation
COMPANY LIMITED BY SHARES
- The minimum capital requirements and the minimum amount paid-up depend on the form the subsidiary will take. In the case of a Company Limited by Shares, the minimum share capital of 61,500 EUR must be fully subscribed and fully paid up.
- The share capital can also be subscribed in kind, but this requires a valuation report from an authorised auditor. The Company Limited by Shares requires a minimum of two shareholders, who may be individuals or legal entities (Belgian or foreign).
- All the powers of the daily management of the company are in the hands of the Board of Directors constituted by the total number of directors. This body appoints one or several statutory auditors, who must review annually the financial position of the company. The General Meeting shall appoint at least three directors. These directors do not have to be shareholders.
- There are also no residence or nationality requirements.
- The day-to-day management of the company's affairs may be delegated by the Board to one or more directors or even to one or more persons who are not on the Board, such as managers, supervisors or other agents.
- The term of office they are granted by the General Meeting may not exceed six years.
The directors may be re-elected by the General Meeting but also dismissed by it at anytime and without justification.
PRIVATE LIMITED LIABILITY COMPANY
- The Private Limited Liability Company is formed by one or more persons who are responsible only for the assets they brought into the business. The shares are also transferable but under certain specific conditions.
The minimum capital amounts to 18,600 EUR and must be fully subscribed and paid up to the extent of a third (6,200 EUR). This form of company admits only one director.
FORMATION OF A BRANCH
For the purpose of incorporation, the foreign-registered company must file, with the Court of Commerce,
- a copy of its articles of association,
- resolution to set up a Belgian branch and
- the name of the manager or chief executive of the branch and
the powers to be vested in him/her as legal representative of the company in Belgium.
The main cost that will be incurred for setting up such branch office are:
- the fee of the official translation into either French or Dutch of the articles of incorporation and the by-laws of the parent company
the fee of publication in the Belgian Official Gazette.
- The financial statements of the foreign company have to be translated and filed with the National Bank of Belgium.
- The branch must be registered with the local Trade Register and must also apply for a VAT number (the latter does not entail any additional costs).
There is no (minimum) capital required but the parent company has to invest the necessary amount of money in order to carry out the business in Belgium. For the branches having more than 100 employees, a qualified statutory auditor will also have to be appointed. Branches are governed by the same regulations as Belgian companies for management and operations in Belgium.
A subsidiary, under the form of a Company Limited by Shares, is managed by a board of directors comprising at least two directors. No conditions of nationality or residence of these directors are imposed. Powers may be delegated by the board of directors in order to charge one or more persons with daily management of the company. A subsidiary under the form of a Private Limited Liability Company admits only one director. A branch must appoint a legal representative who need not to be a Belgian national, nor a Belgian resident. The structure and the extent of the powers the representative is granted can be freely organized within the branch.
THE ECONOMIC INTEREST GROUPING
These are undertakings with incomplete legal personality that offer companies the possibility of founding a legally independent entity for working together, in order to facilitate, rationalise and develop their economic activities.
The collaboration relationship must take account of the economic activity of the member companies and should act as support (for example joint accounting or canvassing). This type of association cannot be used to found a new business or regroup all activities of the members.