Companies: an update on online incorporation
September 2021 – A recent law opens the door to online incorporation of companies. You have a company in five days. That's what the minister promises in the preparatory work... The trick is simple: you still have to go through the notary, but the deed of incorporation for legal persons can now also be dematerialised. This will speed up the procedure considerably.
European Directive
The law is the result of a European directive that gives the national legislator four tasks:
certain forms of company must be able to be incorporated entirely online
certain company information should be submitted and accessed online
branches must be able to register fully online
information on existing governmental prohibitions should be exchanged.
This law only addresses the first three of these issues. The exchange of information will be dealt with later.
The CSA
The current Companies and Societies Code (CSA) has already taken the Directive into account to a large extent, so that only the purely digital aspects remain to be regulated.
The law therefore contains provisions on the following
the electronic form of the instrument of incorporation
the remote receipt of a deed (without physical appearance before a notary)
The electronic filing of incorporation deeds and amending deeds is already regulated (via the notary's eDepot system). The online registration of branches is also already provided for in the CSA, but has yet to be put into practice through royal decrees.
Power of representation
The new law provides that from now on, the register of legal persons of the Crossroads Bank for Enterprises will mention not only the identity of the directors, but also the powers of representation which are part of the articles of association.
This information was already available, but only in the annexes to the Belgian Official Gazette. From now on, it will also be made available in a structured manner in the register of legal persons.
The aim is to create a kind of database of mandates. This information must be included in the articles of association. In concrete terms, a kind of qualification in the form of a metadata that can be linked to the relevant provision (single-person representation, double signature clause, etc.) will be available in addition to the literal statutory provision in question. The obligation applies to all legal forms whose articles of association are filed in the publicly searchable database system of articles of association. For companies incorporated before the entry into force, this new obligation applies at the next filing of a new coordinated version of the articles of association.
Five or ten days
Once the law is in force, a legal person can be incorporated within ten days. Where the legal person is formed exclusively by natural persons, the incorporation can even be completed within five working days from the receipt of the memorandum of association and the payment of the publication fee. This period applies only to online incorporations.
Online incorporation
In order to allow for all these new provisions, the Notaries Act also had to be amended. It is one thing to replace a physical appearance before the notary with a video conference. Replacing the handwritten signature of a deed with a digital signature is another.
The new law is not specifically aimed at the online incorporation of companies. The government has, in fact, developed a legal framework for the dematerialisation of all deeds of incorporation of a legal person received in authentic form, not only those of SRLs and SAs. Other authentic legal forms can now be received in dematerialised form (we are thinking here of the incorporation of the SC, the AISBL, the private foundation...), but also legal forms which do not have to be received in authentic form and which voluntarily opt for this form (the SNC, the SComm, the ASBL...).
In addition, these authentic instruments of incorporation in dematerialised form can be received at a distance, i.e. during a videoconference with the notary. In principle, this concerns all authentic instruments of incorporation (other than the incorporation of a foundation by means of a will). However, contributions in kind are excluded from remote incorporation.
The notary may, however, require physical presence, e.g. in order to avoid impersonation or in the context of the applicants' legal capacity.
The notary will also accept the electronic signature, even if it comes from another EU Member State. However, there are still many practical objections to this.
The law also regulates the problem of signatures in a different time zone (the date and time at which the document is authenticated is the date and time at which the notary signs) and the fact that the employee of the notary's office who receives a power of attorney in dematerialised form must give his private address (he may elect domicile in the notary's office).
The law largely came into force on 1 August 2021, but it will probably be some time before it is actually implemented and made a reality for notaries. The coronavirus crisis has taught us that this can happen very quickly.
