The ‘new’ Companies and Associations Code (CAC) celebrates its fifth anniversary on 1 May 2024. A lot of ink has already flowed concerning the introduction of the CAC and, more specifically, the board of directors’ obligation to amend the articles of association to comply with the provisions of the CAC by 1 January 2024 at the latest.
In the meantime, the deadline for amendment is well past, and it appears that one third(!) of companies and associations have not yet brought their articles of association into line with the CAC. This negligence is not without risk, as we now see a trend among some corporate court clerks to refuse to publish notices such as transfer of the registered office, resignation or appointment of directors, etc., in the Belgian Official Gazette, if the company’s articles of association have not been adapted in compliance with the CAC.
In what follows we discuss the risks of non-amendment of the articles of association, which, partly due to this new practice, may be real.
The risks of failure to amend or lateness in amending your articles of association
The law introducing the CAC provides that members of the board are personally and severally liable for damage suffered by the company or third parties as a result of non-compliance with this obligation.
For a long time, failure to amend the articles of association was considered rather as a theoretical risk. In practice, however, failure to amend the articles of association can actually do harm in some cases, making directors’ liability a concrete reality.
In order to qualify for certain accreditations and subsidies, for example, a company’s articles of association must have been brought into line with the CAC. The loss of an accreditation or a (missed) opportunity for a subsidy may therefore constitute damage causally related to failure to amend the articles of association. Banks and insurance companies also attach great importance to regulatory compliance. A bank may refuse a loan if the articles of association have not been amended, possibly in combination with non-compliance with UBO formalities. Worryingly, we are noticing a new trend among certain court clerks, who refuse to proceed with publication if the articles of association have not been amended to comply with the CAC. Such refusals to publish range from mildly inconvenient to causing serious complications.
Failure to publish a board’s decisions (on time) in the Belgian Official Gazette can lead to a scenario where the resignation or appointment of directors is not published, so that the company cannot be correctly represented. In addition, a refusal to publish may incur significant costs, for example when a merger or separation proposal is not published on time.
The adage “prevention is better than cure” is very appropriate here. While avoiding liability is a sound reason for amending the articles of association, there are other advantages too. After all, an amendment of the articles of association gives directors and shareholders the opportunity to scrutinise the often outdated provisions of the articles of association and amend them if necessary.
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This article was written by Azeddine El Bastani, a specialist in company law, mergers and acquisitions.