A BV without share capital

The new Companies and Associations Code (CAC) entered into force on 1 May 2019. Even since you cannot longer set up a BVBA but a BV. Since you do not have any share capital anymore ... but what do you have then?

Minimum share capital for a BVBA

When you set up a BVBA before the CAC, you should foresee a minimum share capital of 18.550. This should not be fully paid up: on each share 20% should be paid, and in total at least 6.200. For a one-man company the minimum capital to pay up was 12.400.

All this was left with the new CAC: a BV does not have share capital, so there is no minimum capital to be paid up.

Equity capital

This does not mean that you start a BV without one cent. Under the new CAC the founders should make sure that the BV has own capital which is 'sufficient for the indented activities'. In other words: as a founder, you have the responsibility to assure that the company has sufficient financial means.

Sufficient financial means does not only mean the money you put into the company. Also, other finance sources can be taken into account. This is particularly the case for subordinated loans (whether or not from shareholders). From an accounting perspective this is borrowed capital, but in order to determine whether or not your company has sufficient financial means to start, this is irrelevant.

Sufficient equity capital

If at the occasion of the start of a company you do not foresee sufficient funding, you violate the general standard of care and you commit a 'mistake'. And mistakes lead to responsibility. In order to allow judges to assess whether or not you were negligent (and also to somehow protect founders against themselves), you should draft a financial plan. As such this is not new, but the obligation became broader and more severe.

The financial plan contains the following information:

A detailed description of the intended activity;

An overview of all financial sources at the time of incorporation (including possible securities provided);

Opening balance sheet and projected balance sheets after twelve and twenty-four months;

Projected income statements after twelve and twenty-four months;

A budget of the expected income and costs for a period of at least two years after the incorporation; and

A description of the hypotheses used to estimate the projected turnover and profitability.

It is a good idea for starting entrepreneurs to ask for professional assistance: in such case the name of the expert should also be mentioned in the financial plan.

The notary keeps the plan together with the articles of associations: this is not made public.

Responsibility

If the company goes bankrupt within three years after incorporation, you as founder can be held personally liable when it shows that the start capital was 'clearly' insufficient to bridge the two first operational years.

Contrary to a BVBA, you can act as 'subscriber' in the articles of association. This means that you only make the contribution of your means after the incorporation. In the past, this was also possible for the NV: however, you were not considered as founder. The founder or founders should hold at least one third of the shares.

No share capital is no safe-conduct to start frivolous financial adventures. As it is the case for the BVBA you can with a BV be personally liable for the debts of the company when it shows that you were negligent at the start.