The law of 8 January 2012 (the "Law") implementing European Directive 2009/109/EC1 regarding the reporting and information requirements for mergers and de-mergers and amending the Belgian Company Code (BCC) has been published in the Belgian Official Gazette of 18 January 2012. It applies to mergers or de-mergers in relation to which the proposal is filed at the clerk's office of the commercial court after its entry into force on 28 January 20122.
1.1 (DE-)MERGER PROPOSAL
The (de-)merger proposal, to be drawn up by the board of all companies participating in the transaction, remains required. It is, however, no longer sufficient to file this proposal with the commercial court with a simple communication relating thereto in the Annexes to the Belgian Official Gazette, unless such communication contains a hyperlink to the respective companies' websites where the entire proposal can be consulted. Otherwise, the proposal must now be published by excerpt in the Annexes to the Belgian Official Gazette3. This amendment is no simplification for companies not having a website. For all other companies, a publication of the proposal by way of communication containing such a hyperlink will only become possible provided that the systems used by the relevant administrations are modernized, allowing the use of such technology. This is currently, however, not (yet) the case.
1.2 MANAGEMENT REPORT
In line with the procedure relating to de-mergers4, the detailed report of the board required in the framework of a merger is now no longer necessary if agreed to by all shareholders and holders of other voting securities of all companies involved in the merger5. In respect of a de-merger by incorporation of new companies, the Law moreover introduces an exemption for the preparation of this report in the event that the shares issued by the newly incorporated companies are issued to the shareholders of the de-merged company pro rata to their rights in the de-merged company6.
1.3 AUDIT REPORT
Following the previous most recent amendments to the rules relating to mergers and de-mergers7, all shareholders and holders of other voting securities of all companies involved in the merger could already agree that the auditor's report relating to the merger proposal was not required8. For de-mergers, this was previously already possible9.
The new Law, however, clarifies10 that the (auditor's) reporting requirements in relation to a contribution in...