The entry of the new Code of Companies and Associations (‘CCA’) is accompanied by the abolition of various types of companies. The Cooperative Company with Limited Liability (‘CVBA/SCRL’) is one of the legal forms that eventually managed to survive but is simply renamed “the Cooperative Company” (‘CV/SC’). This transformation entails that the CV/SC regains its original individuality.
In practical terms, the return of the CV/SC to its original basis means that the CV/SC will be reserved exclusively for “real” partnerships. In order to meet this condition, the CCA requires that the company’s main purpose is “to meet the needs of shareholders and/or to stimulate their economic/social activities”. From now on, the articles of association of the CV/SC must also explicitly state the cooperative purpose and values of the company.
This way, cooperative thinking takes the upper hand, inspired by the seven ‘International Cooperative Alliance’ (ICA) principles:
- Voluntary and open membership;
- Democratic member control;
- Members’ economic participation;
- Autonomy and independence;
- Education, training and information;
- Cooperation among cooperatives;
- Concern for the community.
The definition of a cooperative company in the Companies Code (‘W.Venn./CS’) – “a cooperative company is a company that is composed of a variable number of partners with variable contributions” – should therefore be replaced in the CCA by a definition with the emphasis on sharing common objectives. The distinction between limited and unlimited liability cooperatives is also abolished, since the CVOA/SCRI will disappear completely. In addition, as in the BV/SRL, the concept of capital is abandoned and the CV/SC will therefore become a “capitalless” company.
Other typical elements of the CVBA/SCRL remain present in the new CV/SC. This includes the possibility to enter and exit as a shareholder without amending the articles of association and the minimum requirement of three founder-shareholders. The incorporation of a CV/SC with less than three shareholders may be annulled. A CV/SC which, in the course of its existence, has fewer than three shareholders may lead to judicial dissolution, unless the situation is regulated within the period granted by the court.
The definition of a cooperative company in the Companies Code should be replaced in the CCA by a definition with the emphasis on sharing common objectives.
If a company meets the legal definition of the CV/SC, it can become a certified CV/SC and/or be recognised as a social enterprise. The company can thus benefit from the advantages associated with this qualification, including a tax exemption of a part of the dividends distributed to natural persons and a broad application of the reduced tax rate for the company. In order to obtain certification, the company must of course meet additional conditions. A certified CV/SC therefore automatically meets the conditions for taking the legal form of a CV/SC, but not every CV/SC will meet the conditions for being certified.
What if there is a lack of cooperative thinking?
We could wonder what will happen to existing CVBA/SCRLs that do not meet the new legal requirements of a CV/SC. These ‘false’ cooperative companies need to be transformed into a suitable legal form.
In such conversions, the BV/SRL will often be the most suitable company form. In the new CCA, the legal regimes of the CV/SC and the BV/SRL show many similarities, except for certain exclusions. Naturally, this facilitates the transformation.
As from 1 January 2020, the (mandatory) rules of the BV/SRL will apply to those CVBA/SCRLs that do not meet the new definition of the CV/SC. In a subsequent phase, i.e. on 1 January 2024, these existing companies will actually be converted into a BV/SRL, insofar as this conversion has not yet been carried out.
As from 1 January 2020, the (mandatory) rules of the BV/SRL will apply to those CVBA/SCRLs that do not meet the new definition of the CV/SC.
Liberal Professionals
The professional companies with which the liberal professions (such as doctors and lawyers) carry out their activities today, are most likely to be affected by the changes made. The fact is that many liberal professionals organise themselves through a CVBA/SCRL. This is partly due to the possibility of excluding shareholders and having shares of the excluded shareholders redeemed by the company. It is not necessary to amend the articles of association or to take into account stricter rules such as those for the purchase of own shares. As these companies do not meet the requirements of the cooperatives envisaged by the CCA, the liberal professions must also opt for a different legal form.
However, the introduction of the CCA ensures that the flexibility that once made the CVBA/SCRL so popular can be found in the BV/SRL. For example, the BV/SRLs’ articles of association may provide for the possibility of exclusion and withdrawal from the company’s assets.
For professional companies, it is also advisable to adopt the company form of the BV/SRL and, if desired, to negotiate a flexible statutory exit mechanism.
Adapted sanction
The legislator takes the pursuit of cooperative thinking seriously, as shown by the provision of a severe sanction: in case of disregard, the court may proceed to dissolve the concerned company at the request of the public prosecutor’s office or of any interested party. This applies both to companies set up as a CV/SC without complying with the legal requirements and to companies that no longer comply with them in the course of their existence.
The term ‘interested party’ must be interpreted in its usual sense and can, for example, relate to a (minority) shareholder, but can also be an interested third party or a competitor of the company.
However, the court may grant a regularisation period during which the company can either take the necessary measures to comply (again) with the legal requirements, or can convert to another company form.
Would you like more information about the Cooperative Company in the CCA? Please contact Lien Verhasselt (lien.verhasselt@deminor.com).
