Belgian corporate governance practices for listed companies have been partially codified in the Belgian Company Code (BCC). The BCC contains mandatory provisions on, for example, the establishment of an audit committee and a remuneration committee, requirements with respect to the determination and disclosure of executive remuneration, requirements for independent directors, and the issuance of a corporate governance statement. Compliance with these mandatory provisions is ensured, for the most part, by the listed company's auditor and the Financial Services and Markets Authority (FSMA).
In addition, other financial and ad hoc disclosure requirements for listed companies are laid down in the Royal Decree of 14 November 2007 on the obligations of issuers whose financial instruments are admitted for trading on a regulated market. Listed companies must also disclose the transparency notices they receive from their shareholders pursuant to the Act of 2 May 2007 and the Royal Decree of 14 February 2008.
The other main source of guidance with respect to corporate governance for Belgian listed companies is the Corporate Governance Code 2009 (the 2009 Code),2 published on 12 March 2009 and also known as the Daems Code. The 2009 Code is an initiative of the non-governmental Corporate Governance Committee, composed of representatives from bodies such as the FSMA (formerly the CBFA), the Federation of Belgian Enterprises, Euronext Brussels, the Belgian Institute of Chartered Accountants and the Central Economic Council. The 2009 Code replaced the Corporate Governance Code 2004 (the Lippens Code). The FSMA monitors compliance by listed companies with the ‘comply or explain' principle applicable to the 2009 Code. The 2009 Code is intended to apply to Belgian companies whose securities are listed on a regulated market.3
In 2010, the 2009 Code was named the mandatorily applicable corporate governance code for certain listed Belgian companies, more specifically those whose shares are listed on a regulated market (in Belgium or another Member State of the European Economic Area (EEA)) or whose shares are traded on a multilateral trading facility (MTF) (i.e., in Belgium, mainly the Vrije Markt/Marché Libre and Alternext),4 provided they have other securities listed on a regulated market (e.g., in Belgium, Euronext Brussels or the market for derivatives of Euronext Brussels). The BCC obliges such companies to adhere to the provisions of the 2009 Code or to explain in their corporate governance statement, which forms part of the annual report, why they have not done so, assuming of course that the provisions in question are not of mandatory application. This means that listed companies that fail to explain why they have not abided by certain provisions of the 2009 Code will be deemed to be in violation of Belgian law. In other words, listed companies are not required by law to comply with the 2009 Code, but they are required to explain why they have not done so. In addition, compliance is highly recommended since it gives credibility and authority to listed companies. Non-compliance can indeed adversely affect public opinion about a company.
The Belgian corporate governance rules have thus evolved over the past few years from soft law (the Lippens Code and the 2009 Code) to hard law (BCC), and the process is ongoing. The 2009 Code has been under review since 2017. The Corporate Governance Committee intends to update the 2009 Code and incorporate the changes in the BCC.5 European legislation is often the driving force behind Belgian legislative proposals.
One of the most important recent legislative actions in the area of corporate governance is the adoption of rules that oblige listed companies to ensure that at least one-third of the members of their board of directors is of a different gender than the other members.6 This action is based on a January 2011 recommendation on gender diversity of the Corporate Governance Committee. Indeed, the means of increasing the number of women on management boards has been widely debated. The legislature finally decided to use hard law rather than soft law (such as a recommendation in the 2009 Code) to achieve this goal.
Specific, more stringent corporate governance rules are applicable to financial institutions.
In addition to the 2009 Code, which is applicable to listed companies, the Buysse Code II contains corporate governance recommendations for unlisted companies. The Buysse Code II was published in 2009 to update the Buysse Code 2005; compliance with this code is voluntary in nature.
On 21 November 2016, the Corporate Governance Committee announced that in 2017 it would review the 2009 Belgian Code on Corporate Governance. The Committee is tasked with ensuring that the provisions of the Belgian Code on Corporate Governance remain relevant to listed companies and are regularly updated on the basis of actual practice, legislation and international standards.
The decision was prompted by several considerations, one being the introduction of new regulations, at both national and European level. Secondly, Belgium is currently reviewing its Companies Code. It is of the utmost importance for listed companies to have compatible reference frameworks. Consequently, in consultation with the staff of Justice Minister Koen Geens, the Committee will endeavour to time the review of the 2009 Code to coincide, as far as possible, with the revision of the Companies Code. However, the Code will also have to take account of interesting international trends and best practices. For instance, there is a trend towards relying more on the behaviour of the members of the Board and of the executive management as well as on the corporate culture and the culture within the Board of Directors in particular.
The Committee intends to focus on a clearly readable Code that is suitable for any type of listed company, regardless of its size, its governance model or its shareholder structure. "It is important that the Code regains its added value and is not just viewed by the listed companies as an exercise in compliance", said Committee Chairman Thomas Leysen.
More detailed information regarding corporate governance rules applicable to listed companies in Belgium is available at https://thelawreviews.co.uk/edition/the-corporate-governance-review-edition-7/1140902/belgium
For developments from the Corporate Governance Committee: https://www.corporategovernancecommittee.be/en/whats-new/news
GUBERNA and the FEDERATION OF ENTREPRISES IN BELGIUM (VBO-FEB) published their 2015 study on the application of the Belgian Corporate Governance Code 2009 of the BEL 20, the BEL Mid and the BEL Small. (available here)
The Belgian Directors' Desk (Deloitte)
Corporate Governance Committee
Stuiversstraat/Rue des Sols 8
B - 1000 Brussels
T + 32 2 515 08 59