Company and association law
As of 1 January 2020, the Companies and Associations Code (hereinafter the CSA) applies to all companies and associations.
However, it contains some provisions whose entry into force has been postponed until 1 January 2010.er January 2024.
This is particularly the case for the obligation to bring the statutes into line.
However, the legislator has set the limit at 1er January 2024. If the articles of association have not been adapted by this date, the personal and joint liability of the directors may be called into question for damages suffered by third parties as a result of this failure to amend.
In addition, the CFS has drastically reduced the number of existing company forms.
Special attention should be paid to the situation of cooperative societies. Until the adoption of the SHA, there were two forms: the cooperative society with limited liability (SCRL) and the cooperative society with unlimited liability (SCRI).
The CSA abolishes these two forms of companies and retains only what it calls: the cooperative society (SC). The legislator wanted to return to the original spirit of the cooperative society. Indeed, it observed that many companies had the cooperative form but not the cooperative spirit.
Now, to be a cooperative society within the meaning of the CSA, the society must meet the definition of Article 6:1 of the CSA, which states that " The main object of a cooperative society is the satisfaction of the needs and/or the development of the economic and/or social activities of its shareholders or of interested third parties, in particular by concluding agreements with them with a view to the supply of goods or services or the execution of works within the framework of the activity which the cooperative society carries on or causes to be carried on. (...) "
In other words, the society will have to organise itself on the basis of a classical cooperative model, in accordance with the cooperative principles of the International Cooperative Alliance (ICA), created to reflect a cooperative ideal, which distinguish the following criteria: voluntary and open membership, democratic control by members, economic participation of members, autonomy and independence, education, training and information, cooperation between cooperatives and commitment to the community.
The Belgian legislator has been inspired by these principles and uses them as criteria to determine whether or not a company can be considered a cooperative society.
The capitalist and financial interest of the cooperative, notably for the benefit of the shareholders, must remain secondary to the satisfaction of the needs of its members.
All companies that do not meet this definition will not be able to retain the cooperative form and will have to transform into an SRL. This is particularly the case for certain law firms that opted for this form, due to the particularly flexible rules for the entry and exit of shareholders.
As of 1er On 1 January 2024, companies will therefore automatically be transformed into either an SRL or an SC, depending on whether they are a "fake" or a "real" cooperative.
It should be noted that the CSA provides that a cooperative society which does not meet the definition of Article 6:1 of the CSA may be dissolved by the company's court, at the request of either a shareholder, an interested third party or the public prosecutor. The court may, if necessary, grant the company a period of time to regularise its situation.
It is therefore very important for companies, of all forms, which have not yet proceeded with the transformation, to get active before 1 January 2010.er January 2024.