New Companies and Associations Code – Starts applying to existing companies: In January, the new Belgian Companies and Associations Code will come into effect for existing Belgian companies and (i) the mandatory provisions of the new Code and (ii) the provisions of suppletive law of the Code that do not conflict with the existing articles of associations (AoAs) of those companies will start to apply. Existing companies have until January 2024 to adapt their AoAs to conform to the provisions of the new Code. However, if companies modify their AoAs between January 2020 and January 2024 for any other reason (e.g., a capital increase/decrease), then they must modify their AoAs entirely at that time to adapt to the new Code. It is advisable to start preparing for a change of the AoA, so that an unexpected “in extremis” adaptation to the new Code is avoided. This also avoids the dual application of the former and new legal rules in the same group of (existing) companies.

Watch our video for details on the transitional regime. 

Second Shareholders’ Rights Directive (SRD2): A draft Law implementing the so-called "Second Shareholders’ Rights Directive" (SRD2) is scheduled to be adopted at the beginning of next year. In addition to the changes to the remuneration report and the remuneration policy, the draft Law also provides for new rules on e.g. related party transactions, the organisation of shareholders’ meetings (confirmation of votes and electronic shareholders’ meetings).

Sustainable Finance:The Sustainable Finance Package developed by the European Commission is steadily taking shape. With the package, the EU wants to foster sustainable investments in the EU through regulation of the financial markets and players. The regulations on EU sustainability benchmarks and on sustainability-linked disclosures apply as of December 2019 and March 2021 respectively, whereas the EU taxonomy regulation, the EU’s classification of environmentally sustainable economic activities, is still under negotiation.

New Companies and Associations Code – Impact on financial transactions: The new Belgian Companies Code applies to all Belgian companies as of 1 January 2020. Market practice in finance transactions is still developing, in particular with respect to bond issues, change of control provisions, corporate authorisations and the use of securities in BV/SRL, but the first trends are starting to emerge. Corporates will be keen to benefit from the Companies Code’s flexibility in their upcoming finance transactions.

Read more in our newsletter.

Antitrust dawn raids in the retail and pharmaceutical sectors: It remains to be seen whether the BCA will follow up on multiple dawn raids taking place in both the retail and pharmaceutical sectors. After conducting dawn raids in the retail distribution sector mid-May, the BCA announced at the beginning of October that it was “inspecting pharmaceutical companies over suspected antitrust practices that aim to prevent biosimilar medicines from entering the market”. Both sectors are currently under high scrutiny and more investigations may follow.

Exchange of information in associations of undertakings: The BCA has issued a guidance note on the exchange of information between the members of certain undertakings of associations in which the members are competitors. The guidance note focuses on the creation of periodic reviews of the markets, price comparisons, information on future market developments and the creation of price determination tools. This guidance note shows the BCA’s interest in such cases and may be a hint for future investigative priorities into associations of undertakings.

Competition in the digital world: The BCA is eager to contribute to the further development of a digital competition policy for the next European Commission, as set out in a joint memorandum by the Belgian, Dutch and Luxembourg competition authorities. This may also be reflected in the BCA’s future enforcement priorities.

Phase two of the corporate income tax reform: In 2020, phase two of the corporate income tax reform will come into force. Among others, the standard corporate income tax rate will be reduced to 25% with the additional crisis surcharge being abolished. In addition, the real estate exit tax is being increased to 15% (after being decreased from 16.5% to 12.5% in phase one). Finally, some other measures will become applicable, such as administrative fines and the secret commissions tax, which will no longer be considered as a tax deductible expense.

Excess profit rulings: We are awaiting the decision of the EU Court of Justice with respect to the appeal against the judgment of the EU General Court, which stated that the excess profit ruling system does not constitute an illegal State aid "scheme".

Digital taxation & other anti-BEPS measures: In 2019, within the context of BEPS Action 1 addressing the tax challenges of the digital economy, the OECD proposed a "two pillar" approach. Under pillar one, the OECD proposes a new nexus that would allocate the right for market jurisdictions to tax a residual profit for large consumer-facing businesses. Under pillar 2, the remaining BEPS concerns would be addressed through both an income inclusion rule and a tax on base eroding payments. This approach does not yet represent the consensus view of the different States. Instead, it serves to facilitate negotiations with the aim of reaching an agreement by the first half of 2020

Clean Energy Package: While a small part of the Clean Energy Package came into force at the end of 2018 (Regulation on Governance) and in 2019 (ACER and Risk-preparedness Regulations), 2020 will see the implementation and/or entry into force of the bulk of the package, including the new power market design (new Electricity Regulation and Directive) and rules on energy efficiency and the energy performance of buildings. The new Renewables Directive must be transposed by 2021. Throughout 2020, the Commission will be running implementation dialogues with Member States.

Read our report here.

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Watch our video here.

Offshore wind and CRM: The (new) federal government is due to establish detailed conditions and procedural rules for the new market-wide capacity remuneration mechanism, and for the competitive tender for new offshore renewable power generation capacity. In addition, it must establish completion dates and a compensation mechanism for each section of the extension to the Modular Offshore Grid, to which the future wind parks will have to connect. With the current political stalemate, timing for all these decisions is uncertain.

Read our client alert here.

Deadline CCTV notifications: New CCTV systems in Belgium must be notified to the police services via the official website www.declarationcamera.be / www.aangiftecamera.be. The two-year transitional period put in place for existing CCTV will end on 25 May 2020. This means that all existing CCTV that were previously notified to the Data Protection Authority before 25 May 2018 must be notified again to the police services by 25 May 2020 at the latest. Notifications must be kept up to date and must be revalidated by the controllers at least once a year. Controllers must also remember to update the registers to be kept under Article 30 GDPR with specific information about CCTV.

Social elections: In May 2020, new social elections must be held for works councils and committees for prevention and protection at work within a number of companies that reach certain thresholds depending upon the number of employees.