20181010

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Simont Braun assisted Rewe in one of the largest mergers in the European retail sector

Simont Braun has advised Rewe, the second largest German supermarket chain, on the Belgian legal aspects of the purchase of Lekkerland/Conway, a major wholesaler specialised in consumption on the go, supplying gas stations, kiosks, convenience stores, etc. The transaction was signed on 28 May 2019 and the parties are now waiting for clearance by the competition authorities.

As both Rewe Group and Lekkerland are active in several European countries, their merger implied substantial cross-border aspects and the active cooperation of several top tier law firms, principally in Germany (lead), Belgium, Switzerland, the Netherlands and Spain.

Simont Braun’s Corporate M&A team advised Rewe on the Belgian legal aspects of the transaction, in particular by carrying out a legal due diligence on the Belgian target companies and assisted on the related legal and regulatory questions surrounding the transaction.

Our team is delighted to have contributed to such a landmark European cross-border transaction, in close cooperation with Taylor Wessing Germany (lead firm). Our demonstrated capabilities to act in the framework of international transactions make us a go-to law firm for such matters on the Belgian market. Our integrated multidisciplinary structure and strong linguistic skills were clearly a plus,” highlights Axel Maeterlinck, partner in Simont Braun’s Corporate M&A department.

The Rewe Group generated a turnover over € 61 billion last year, courtesy of its 360,000 employees in 22 European countries. With the merger with Lekkerland, a new European powerhouse is born in the convenience segment. Lekkerland has about 4,900 employees in Europe and generated a turnover of € 12.4 billion euro last financial year. In Belgium, the group operates under the name Conway and its 400 people generate a turnover of € 1.5 billion (source: www.retaildetail.be).

The Simont Braun team was led by partner Axel Maeterlinck, together with partners Fernand de Visscher, Steven Callens and the assistance of counsel Pierre Van Achter and associates Tine Bauwens, Laura Grauer, Julie Kever and Peter Blomme.

UBO Register – Important updates in the FAQ document

An important update of the UBO Register FAQ document has been published by the Federal Public Service Finance on 2 April 2019. It provides a number of clarifications on the scope of the regulations, notably with respect to the notion of senior managing official, the situation in case of a usufruct / bare ownership, co-ownership, shareholders’ agreements… It also confirms that UBOs will have the right to know who consults their data. The updated FAQ document is available here: http://bit.ly/QandA-ubo

For any question, please contact Sandrine Hirsch or Nikita Tissot.

The final text of the new Companies Code has been published

Today has been published the Law of 23 March 2019 introducing the Code of companies and associations and amending certain other regulations (notably the Law on takeover bids). The final text is now available here.

For any assistance, please contact Sandrine Hirsch or Nikita Tissot.

Register of Beneficial Owners – Obligation to identify UBOs

1) INTRODUCTION

The Belgian anti-money laundering regulations (the Law of 18 September 2017 and the Royal Decree of 30 July 2018) require all companies, non-profit-making organisation and foundations, as well as trusts, fiduciaries and other similar legal entities managed from Belgium, which are the responsible “information providers”, to obtain and hold adequate, accurate and up to date information on their “beneficial owners” (UBO) and to transmit it to the UBO Register, managed by the General Administration of the Treasury.

2) DEFINITION OF UBO

UBO are individuals who directly or indirectly exercise effective control over information providers. There are different categories of UBO depending on the type of control exercised and on the type of information provider.

For companies, the following are considered as beneficial owners:

  1. Individual(s) who directly or indirectly has/have ownership of a sufficient percentage of voting rights or own sufficient shares in the company (an indication of a sufficient percentage is the possession, directly or via ownership interest held by one or more companies, of more than 25% of voting rights or of shareholding);
  2. Individual(s) who control via other means (such as via a shareholders’ agreement) ;
  3. In the case no individual(s) is/are found under the first two categories, the senior manager.

Others persons qualify as UBO for non-profit-making organisations, foundations, trusts, fiduciaries or other similar legal entities. If your entity corresponds to one of those, we will provide you with further details.

 3) INFORMATION TO PROVIDE

As mentioned in the Royal Decree, the following information regarding each beneficial owner must be communicated to the UBO Register by the company which is the information provider:

  1. last name, first name, date of birth (day/month/year), citizenship(s), country of residence, complete address of permanent residence, date on which they became the UBO of the company, national registry number or registration number with the Crossroads-Bank for Companies (or overseas equivalent),
  2. the relevant category of UBO to which he/she belongs,
  3. if he/she is a direct or indirect UBO (via one or more other entities),
  4. if the individual(s) meets the criteria alone or in coordination with others,
  5. for indirect beneficial owners, full identification of each of the intermediary entities is required,
  6. the percentage of shares or voting rights owned and,
  7. in case of indirect holding or control, the percentage of shares or weighted voting rights held in the company.

4) ACCESS TO THE REGISTER

The UBO Register is an online register accessible on the FPS Finance website.

UBO Register data are accessible not only to the competent authorities and obliged entities (notably the Ministry of Finance, the tax authorities, the Belgian Financial Intelligence Processing Unit (CTIF), the police, the National Bank of Belgium, the FSMA, company auditors, accountants, lawyers, notaries, bailiffs, etc.), but also, for companies, to all members of the “general public”, in line with the increased transparency principle enshrined in the 5th Anti-Money Laundering directive.

However, those persons will not have access to the first name, the exact date of birth, the complete address of residence, the national registry number or equivalent of the beneficial owners.

All consultations of the register made by those persons will be recorded and kept for a period of 10 years.

The data held in the register will also be kept for a period of 10 years after the date of loss of legal personality of the information provider or the date on which it ceased its activities.

5) REQUEST FOF DEROGATION

A request for derogation can be made via the UBO Register online platform. In this case, access for the general public to the information is suspended until the General Administration of the Treasury grants or declines to accept the derogation.

In principle, a derogation may only by granted under exceptional circumstances, expressed as follows under in the directive:

“in the event the beneficial owner concerned demonstrates that this access exposes him/her to disproportionate risk, to risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, or in the event the beneficial owner is a minor or incapacitated”. 

A specific request may also be made directly via the General Administration of the Treasury.

Supporting documents which evidence the derogation request must be attached to the official request.

6) DEADLINE

The different entities must transmit the information to the UBO Register before 30 September 2019.

Administrative or criminal fines will apply in case of non-compliance by companies and more particularly by the directors of their obligations. The fines range between 250 EUR and 50,000 EUR.

Thereafter, all modifications must be recorded within a one month period.

Moreover, the information recorded in the Register must be confirmed annually by the information providers. The companies are required to establish a procedure which ensures it is possible to make information available and to keep up to date and correct information, clearly identifying their beneficial owners.

7) FORMALITIES

Companies are required to take the following measures:

  1. Set up internal procedures to facilitate the collection of the requested information and communication of any potential changes relating to it;
  2. Identify the beneficial owners and their corresponding category(ies), and where necessary compile the documents testifying to the veracity of the information communicated (e.g.: a copy of an identity card, a shareholder register, a notarial deed, articles of association of the intermediary company in case of indirect ownership).
  3. Appoint the legal representative or an external representative with an E-ID card who will be responsible for providing the information listed in the Royal Decree via MyMinFin on behalf of the information provider. In the scenario an external representative is chosen, it may be either an internal agent to the information provider or an external agent (e.g. an accountant, a legal advisor, a natural or legal person).

Practical information is available on the website of the Federal Public Service Finance, particularly under the FAQ document.

*     *     *

Sandrine Hirsch and Nikita Tissot

For any question, do not hesitate to contact the authors:
sandrine.hirsch@simontbraun.eu – +32 2 533 17 64
nikita.tissot@simontbraun.eu  – +32 2 533 17 06

 

The new Belgian Code of Companies and Associations has been voted

It’s official: the new Belgian Code of companies and associations has been approved yesterday in its final version by the Belgian Parliament. It will be published in the official gazette in the coming weeks and will gradually come into force as from May 1st, 2019.

For an insight into the reform, please refer to a recent presentation by Paul Alain Foriers: https://bit.ly/2FQ4445.

The full text is available here: https://bit.ly/2GTGvXH For more information on how to comply with the new Code, do not hesitate to contact a member of our corporate team.

Le droit du procès civil – Colloque et parution du Volume 2

Le colloque « Le droit du procès civil – Etat actuel et analyse des réformes à venir » a attiré plus de 300 participants ce lundi 28 janvier à l’ULB.

Fanny Laune et Marc Baetens-Spetchinscky – Le droit du Procès civil

 

Les interventions de Fanny Laune et de Marc Baetens-Spetschinsky sont disponibles ici :

pdfLa déformalisation de l’acte juridictionnel et le régime des nullités par Fanny Laune
pdfIncertitude concernant les conditions de recevabilité de l’appel incident et actualités en matière de délai d’appel par Marc Baetens-Spetschinsky

Ce colloque s’est tenu à l’occasion de la parution du volume 2 du Précis « Droit du Procès civil » (Anthémis), un outil résolument orienté sur la pratique essentiel pour tout praticien de la procédure, auquel Fanny Laune et Marc Baetens-Spetschinsky ont contribué.

Two Partners appointed in the Industrial property Section of the Council for Intellectual Property

The FPS Economy has just appointed, for their legal expertise, Fernand de Visscher as President and Emmanuel Cornu as a member of the Industrial Property section of the Council for Intellectual Property.

The Council for Intellectual Property is an advisory body made up of experts and representatives of various sectors concerned with the intellectual property. Its main mission is to provide the Minister responsible for intellectual property with advice on any matter relating to intellectual property, in particular in the law-making process.

Its president and members are appointed for a term of four years.

 

New Companies and Associations Code – Update January 2019

A number of amendments to the draft law were proposed at the Parliament’s plenary session on 18 December 2018. A new opinion from the Council of State is expected soon.

For an outline of the main changes vis-a-vis the existing regulations, you may refer to the slides prepared by Paul Alain Foriers, Partner in our Corporate M&A department and one of the four legal experts appointed by the Minister of Justice:

pdfLa réforme du droit des sociétés – Quelques questions importantes (available in French only).

For more information on the upcoming reform, do not hesitate to contact Paul Alain ForiersSandrine Hirsch or Nikita Tissot.