Belgium: Be Aware Special Newsflash 2019

Last Updated: 23 September 2019
Article by Eddy Lievens, Pierre Dion and Wouter Verhelst

New Belgian Code of Companies and Associations: some points of attention from an HR perspective

The new Belgian Code of Companies and Associations (BCCA) entered into force on 1 May 2019 for companies incorporated after said date.

For the existing companies at aforementioned date, the BCCA will enter into force as of 1 January 2020, unless they decide to voluntarily opt in to the rules before 1 January 2020. They moreover have the obligation to update their bylaws according to the terms of the BCCA prior to 1 January 2024. Our corporate colleagues have issued several newsletters concerning this important legal reform. We kindly refer to these newsletters if you would like to find out more about the BCCA.

Below, we will however focus on some items of the reform which may have an impact from an HR-perspective within the most commonly used limited liability companies (hereinafter referred to as the LLC), i.e. public limited liability companies (NV/SA) and private limited liability companies (BV/SRL).


Discharge protections in bylaws or appointment decision


As a rule of thumb under the former Belgian corporate laws, a director mandate within an NV/SA was revocable at all times, without notice or indemnity. This is called the ad nutum revocability of mandates.

For the mandates of managing director or of members of management committees (directiecomité, comité de direction), it was possible to determine deviating terms of discharge of their mandates in the bylaws or appointment decision, for example by imposing the obligation to respect a notice period and/or to pay a severance indemnity.

This was however not possible for director mandates, which were previously only revocable ad nutum by the company, with no legal possibility to provide for deviating terms of discharge by the company.

Under the BCCA, the aforementioned management committee will be abolished.

In an NV/SA, one will however be able to choose to implement a two-tier governance structure, comprising of a supervisory board (raad van toezicht, conseil de surveillance) and a management board (directieraad, conseil de direction) (please refer to the Governance in Public Limited Liability Companies newsletter of our corporate colleagues) which creates a proper dual governance structure similar to but more elaborate than the situation of the management committee under the former Belgian corporate laws. The decision to implement the dual governance structure will no longer be made by the board of directors of the company but requires an amendment of the articles of association through a decision of the shareholders of the company. Important to note is also that, contrary to what was the case with the previous management committee, the composition of the supervisory board and management board must be strictly distinguished; as such, members of the one board cannot be a member of the other one as well.

Further, the BCCA changes the rules in relation to the ad nutum revocability of director mandates as it allows derogation from it.


For directors who were not appointed in the articles of association, the BCCA does not entail much change in terms of ad nutum revocability: this principle remains applicable, unless specific arrangements are confirmed in the bylaws or appointment decision.

Like before, directors that have been appointed in the articles of association can however only be dismissed by a decision of the shareholders amending the articles of association, or for a legitimate reason (see further below).

For both types of LLC: introduction of (relatively) new concept of discharge for legitimate reason

If the bylaws or the appointment decision provides for specific terms of discharge, the director mandates can nevertheless still be terminated effective immediately, without notice or indemnity, for a legitimate reason.

This is relatively new concept in Belgian company laws: relatively, because a similar notion already applied to directors appointed in the articles of association of a BVBA/SPRL (which are to change into BV/SRL), and new because this notion did not exist yet for the other types of director mandates within LLCs.

The BCCA however does not define what is to be considered as a legitimate reason, nor does it impose specific formalities (merits, timing, etc.) to lawfully invoke a legitimate reason.The preparatory works of the BCCA vaguely refer to e.g. a serious criminal offence which relates to the professional cooperation between the mandate holder and the company, or tax fraud.

It is possible to specifically define this notion in agreement with the mandate holder, or in the appointment decision. That being said, though, we will in any event need to wait on the case law on this topic to have better view on what can be lawfully considered as such a legitimate reason.

Companies could however strengthen their case by providing for examples of circumstances which would justify a discharge for legitimate reason in the appointment decision or in the consultancy or management agreement with the mandate holder.

Action points:

  1. Update the bylaws, to confirm the application of the ad nutum revocability principle (even if such an explicit reference is not legally required), or to confirm the specific terms of discharge of the corporate mandates (which can also be individually determined in the appointment decision respecting at all times the terms of the bylaws).
  2. Compare terms of discharge with the terms of the mandate holder's consultancy or management agreement: synchronizing the terms of termination of the consultancy/management agreement with the terms of discharge confirmed in the bylaws or appointment decision will be essential to avoid additional dismissal burden.

Self-employed director mandate

Since the implementation of the new BCCA, it is (finally!) legally confirmed that director mandates in LLCs must be executed on a self-employed basis by the mandate holder. These cannot be executed as being a regular employee.

For directors of an NV/SA this does not change much, as this principle already applied to all of them. The same basically applies for directors of a BVBA/SPRL, but before the BCCA, some authors argued that it remained theoretically possible to execute their mandates under a regular employment contract..

For members of management committees (directiecomité, comité de direction) within an NV/SA , however, the situation was a bit more ambiguous: before, some argued that the activities linked to the membership to a management committee could, under some circumstances, be executed in the framework of an employment contract.

The BCCA explicitly confirms that director mandates within an NV/SA and a BV/SRL must be executed on a self-employed basis.

If an NV/SA chooses to implement a two-tier governance system (see above), the members of the management board and supervisory board must execute their mandates within these boards on a self-employed basis.

Therefore, if such an NV/SA wishes to appoint members of its previous management committee into its supervisory board or management board, it must first ensure that they execute their mandates on a self-employed basis by the time the BCCA is applicable to the company.

Does this mean that a director mandate holder within an LLC cannot be bound by a regular employment contract?

The answer is no.

Indeed, a director mandate holder can still be bound by a regular employment contract to execute tasks which are strictly distinguished from his or her activities in the capacity of director mandate holder (e.g. tasks of technical nature), but only if:

  1. There is a subordination link between the employee and the company, i.e. the company can validly execute employer's authority over the employee during the execution of the tasks under his or her employment contract. This will for example in principle not be possible if a regular employment contract is signed with the sole director of a BV/SRL or an NV/SA; and
  2. Salary must be paid to the employee in compensation for executing his or her employment contract. This could then for example be combined with a non-remunerated director mandate.

Action points in case of combination between an employment relationship and a director mandate:

  1. Verify if the employee's tasks and obligations under the employment relationship are strictly distinguished from those he or she executes in the capacity of director mandate holder, and update terms accordingly.
  2. Where appropriate, we recommend to explicitly confirm that the mandate is executed on a non-remunerated basis, to avoid confusion between the employee's salary entitlements under his or her employment relationship, and fees he or she would receive in consideration of his or her director mandate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions