- Toon Rummens - Leo Peeters
- NV/SA , Public Limited Liability Company , CCA , Management , director's liability , director , board of directors
In the NV/SAs, the choice can be made between three systems of governance. There is a lot more flexibility. Below we explain how the management of NV/SA's can be organised.
1. Three governance systems
For the management of the NV/SA, there is a choice between three systems:
- The monistic collegial board:
This corresponds to the former regime, in which a board of directors (from now on: "bestuursorgaan/conseil de direction"), manages the company as a single collegial governance body.
The board of directors must be composed of at least three directors.
- A single director:
The CCA provides for the possibility of opting for a single director, who may or may not have unlimited liability.
This alternative was introduced to deal with the consequences of the abolishment of the limited partnership (Comm. V.A.), for example with respect to estate planning.
This sole director can either be an individual or a legal entity. However, in a listed company, this single director must always be an NV/SA, which has a collegial board of directors.
The single director may be granted a right of veto for amendments to the articles of association, for distributions to shareholders and for its own dismissal. The general meeting of shareholders however, can terminate its mandate at any time without its consent, if there are legitimate reasons to do so, subject to compliance with the attendance and majority requirements for the amendment to the articles of association.
- A dual management body:
In this regime, management is entrusted to two bodies, a supervisory board and a board of directors. The supervisory board has a supervisory function.
The following conditions apply in this context:
- both bodies are collegial bodies;
- each body must have at least three members (i.e. a total of six);
- double mandates are prohibited: one member of one body may not be a member of the other, not even the CEO;
- the powers are exclusive, i.e. each body is entrusted with its own set of tasks which are clearly defined in advance in the articles of association. The overall business strategy and control of the board of directors belong to the supervisory board, while the board of directors is responsible for the operational management;
- the members of the board of directors are appointed by the supervisory board, whose members in turn are appointed by the general meeting of shareholders.
2. Day-to-day management
The management body of the NV/SA had the right to appoint a day-to-day management. The latter can be one or more persons, acting individually or collectively.
The law gives a clear description of the competences of the day-to-day management. Day-to-day management relates to actions and decisions that don't exceed the needs of the daily life of the company, as well as actions and decisions that are justified because they are less important or urgent.
3. Directors cannot be employees
It is extremely important to know that no director (member of the board of directors, the supervisory board or the day-to-day management) can an employee, unless there is clear segregation of duties.
4. The ad nutum dismissal of directors is no longer of mandatory law
The rule that each director of an NV/SA may be removed ad nutum is no longer of mandatory law.
However, this rule remains the general rule, but other arrangements can be made.
Each company can therefore provide for a different regime in its articles of association and, for example, introduce protection against dismissal in the form of notice and/or compensation.
5. Permanent representatives
In the NV/SA the permanent representative of a director that is itself a legal entity cannot be duplicated: the permanent representative of a director-legal person cannot be simultaneously a director in personal name in the same company.
Moreover, directors that are legal entities can only be permanently represented by an individual and not by (a cascade of) legal entities.
6. Conflicts of interest and director's liability
Directors with a conflict of interest must abstain from deliberating and voting. If as a result no director can take part in the vote, the vote must take place at the general shareholders' meeting, after which the day-to-day management has to execute the decision.
The (extra)contractual liability of directors is limited to a maximum amount (cap). This amount can rise from 125,000 to 12 million euros depending on the size of the company (turnover and balance sheet total).
This limitation of liability does not apply in the event of a regularly occurring minor fault, serious fault, fraudulent intent or intent to harm or in the event of unpaid social security contributions, VAT and withholding tax.