No capital requirements for the private company (BV)
Since the entry into force of the Companies and Associations Code (CAC) on 1 May the number of company forms is reduced to four. Much attention goes to the private company and especially the abolishment of the capital concept. Why choose this company form?
The private company is a company with full legal personality without capital in which the shareholders only commit to their contribution. We find the provisions of the CAC which specifically apply to the private company in Book 5 (art. 5:1 - 5:158) of Part 2.The companies.
In the BVBA the minimum capital amounts to 18.550€ whereof at least 6.200€ should be actually paid at incorporation. The new BV is incorporated without capital and without a minimum amount of contribution. However, at the time of incorporation the BV should have sufficient equity capital in function of the intended activity. Before incorporation of the company the founders should provide the notary with a financial plan substantiating the amount of the starting capital for a period of at least two years. The own assets and liabilities of the BV are separated from the capital of the shareholders.
The incorporation is only possible through a notarial deed. This incorporation can be done by one person. The company obtains legal personality as of the day the founding act is deposited.
The shareholders determine the nature and size of the contributions. In exchange for a contribution shares can be issued. The liability of the shareholders is in principle limited to their contribution. The BV should at least issue one share. Minimum one share should have voting rights. In a BVBA the profit distribution and voting rights were propitiate with the shareholders' contribution. This remains the case for the BV unless the shareholders explicitly decide otherwise. In order to give a specific (important) shareholder more control rights, the '1 share = 1 vote' rule can be abolished and plural voting rights are possible.
Articles of association
The articles of association can open the BV for everyone. The 'private' character of the BV is in other words relative.
Concerning the articles of association there is an essential difference with the articles of association for a BVBA, i.e. much more possibilities to derogate from the CAC.
The articles of association can provide for free transferability of the shares and state that shareholders can withdraw from the company at the charge of its capital.
The shareholders of a new BV have the possibility to determine their respective rights. Both the profit distribution and voting rights can be modulated in the articles of association.
The founders are jointly liable for the obligations of the company in case of bankruptcy of the company within three years after obtaining legal personality, when the initial capital was clearly insufficient for the envisaged activity during a period of two years.
The BV is managed by one or more directors, whether or not as a collective body, which can be individuals or legal entities.
Directors can in this capacity not be bound with the company through a labour agreement.
General shareholders meeting
Each year at least one general shareholders meeting should be held at the place, date and hour as stated in the articles of association (cfr. BVBA).
New is that management and, when appropriate, the statutory auditor, can call for a general shareholders meeting within three weeks when shareholders representing one tenth of the issued shares ask to do so.
Remember. In a BVBA this can be done at the request of shareholders representing one fifth of the equity capital.