A step forward in adapting Belgian company law to the digital age
Full online formations of Belgian companies and associations possible as from 1 August 2021
On 15 July 2021, the law on the use of digital tools for the constitution of companies and associations was published in the Belgian State Gazette. This law partially transposes Directive (EU) 2019/1151 (the Digitalisation Directive). Under the new rules, it will be possible, as from 1 August 2021, to create Belgian companies and associations fully online, without the need of physical presence before a business registry or intermediary (notary), except where there is a genuine suspicion of fraud.
Scope of application
The scope of application of the new rules is broader than the Directive’s and facilitates the full online formation of any type of (Belgian) legal entity, not only limited liability companies such as SRLs/BVs or SAs/NVs. The online procedure is not available for incorporations by way of contribution in kind (given the complexity of these operations).
How will online formation work in practice?
The online formation of a company or association will take place through a meeting held via videoconference, in the presence of a notary. Each party (or its representative) may sign the deed completely electronically with an e-signature (e.g. through DocuSign, AdobeSign or other e-signature providers). This will allow parties to sign the incorporation deed at different moments or even on a different day, depending on their availability. As is already the case today, the incorporation deed then can be (instantly) electronically filed with the clerk’s office at which time the company acquires legal personality.
What are the safeguards?
The legislator still considers the involvement of a notary an important safeguard against fraud, money laundering, or other misuse of the legal personality of a company. The notary may demand the physical presence of the parties where there is a genuine suspicion of fraud.
Relevance of the new rules
The Digitalisation Directive is a strong push towards the use of digital technologies throughout a company's life-cycle. In a number of EU Member States (e.g. France and Estonia) it is already common practice to form (certain types of) companies fully online (with same day registration). Against this (competitive) background, digitalisation of the Belgian procedure became urgent. Although the (remote) intervention (and cost) of a notary remains, it is a step forward that appearance in person for the (cash) formation of Belgian companies and associations has been abolished. It's one obstacle less for the rapid formation of companies and associations.
