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Create your company from your couch with a single mouse click ? As of August 1st, 2021, you can !

electronic contracts

Every year, more than 32.000 new companies are created in Belgium.

Under Belgian law, it is mandatory that shareholders appear in person before the notary in order to create a company.  In order to be authenticated, the deed of incorporation must be signed in front of a notary public.

Did you know that as of the 1st of August 2021 , it will be possible to form a company with a single mouse click?

In this article, you will discover :

  • the legal formalities to follow for the constitution of a company (under Belgian law)

  • the recent digital (r)evolutions in corporate law

  • the change that will make it possible to create a company with a simple mouse click as of the 1st of August 2021.

 

The legal formalities for the constitution of a company

A deed of constitution of a company or association requires in principle an authentic deed to be signed before a notary public. There are some exceptions, such as a limited and collective partnership, which can be constituted by a private deed or an agreement between the founders.

A deed of incorporation must include at least the following information :

  • the legal name of the company (including the commercial name if any)

  •  the company address

  • the purpose or objective of the company

  • the duration of the company

  • the way the company will be represented

  • the amount of capital and the number of shares

In addition, the following documents must be presented before the notary by the founders:

  • the financial or business plan

  • the bank number with the confirmation by the bank of the amount of the capital (in the event of a cash contribution)

  • a report of a certified auditor (in the event of a contribution in kind)

Any deed of incorporation once signed, whether it is notarized or not, must be filed within 30 calendar days at the registry of the commercial court of the jurisdiction where the registered office of the company is established.

The company or association only acquires legal personality, and thus officially exists, after the registration of the deed of incorporation at the registry.

 

The recent digital (r)evolutions in corporate law

As of May 2019, the Federation of Belgian Notaries (Fednot) has taken an important first step in rendering the formalities for the incorporation of a company less complex with the introduction of the possibility to hold videoconferences.

This made it no longer necessary for both founders to be physically present at the office of the common notary appointed for the establishment of the act of incorporation.

Each founder can simply go to the office of a notary of his choice and participate in the process of the incorporation of the company by notarial or authentic deed remotely.

This is very convenient in the case of founders living far from each other or abroad.

In May 2020, in the midst of the COVID health crisis, the Federation of Belgian notaries introduced another digital innovation: the possibility of granting power of attorney electronically for the signature of a notarial or authentic deed. (Please see  my previous blogs for an overview of the different types of electronic signatures under Belgian law).

This modification was made possible by the law of 30th April 2020, published in the Belgian official Gazette and entered into force on the 4th of May 2020.

The principle is simple: a signatory party to the notarial deed can give an electronic authentic power of attorney to a person present at the office of the notary, such as an employee.

In order to be able to issue a digital power of attorney, each signatory party must have:

  • an internet connection 
  • an electronic identity card that can be authenticated with a pin code or the “itsme” app

This enables the identification of the parties and the electronic signature of the notarial deed without the parties being physically present at the offices but connected to the internet.

The employee, representing the principal, signs the authentic deed on paper during the videoconference based on the digital power of attorney given. 

The digitalization process also includes the option to deposit a notarial deed electronically via the e-Depot application.  This can also be used by the notary public to modify company data in the authoritative sources.

In addition, the e-Griffie application makes it possible to electronically submit a deed of incorporation at the registry online. The application is available on the website of the Department of Justice.

In addition to being extremely simple, electronic filing speeds up the registration process considerably.  It triggers the filing of the extract of the deed at the Crossroads Bank for Companies and accelerates the publication of the articles of incorporation in the Belgian Official Gazette.

 

The creation of a company with a simple mouse click as of the 1st of August 2021

This most recent change is the result of two things:

Thanks to this change of law, it will be possible to sign the deed of incorporation remotely from your couch by means of a single mouse click as of the 1st of August 2021.

The contents that a deed of incorporation must include will remain unchanged.   

Conclusion

The most recent development that foresees a paperless incorporation of a company by means of a single mouse click is certainly a very important step forward in the process of digitalization of the Belgian Company Act.

Despite this important change, I am of the opinion that the intervention of a notary remains essential. The notary is the best suited person to assist the shareholders in choosing the most appropriate legal form and drafting the article of association of their company.

However, this will be the case as the notary will remain the trusted advisor to the signatory parties during the digitalizing process.

Do you have questions about this recent change and what it could mean for your business ?  Do not hesitate to contact me.

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