What happened in 2020, and what is to expect in 2021?
Every day in December, Simont Braun shared legal highlights of 2020 and upcoming events for 2021 in its End-of-Year Countdown.
Here is a recap of each highlight by area of practice:
1. Corporate law
2. Intellectual property
3. Digital finance & Financial services
3. Civil law and Dispute resolution
4. Real Estate & Public law.
Corporate law
Golden year of remote corporate meetings and e-signatures
Since 1 January 2020, the new Companies and Associations Code allows remote shareholders and board meetings in writing or via electronic means of communication under certain conditions. With Covid-19, the Belgian government further facilitated the process and temporarily removed the legal obligation for such remote meetings to be authorised by the articles of association.
An ambitious draft bill of 27 October 2020 now notably proposes to incorporate this measure into the Companies and Associations Code. Let’s see how it progresses in 2021…
The growing use of electronic signature in business relations also plays a major role in organising these remote corporate meetings. For more information, see our previous news here [1] authored by Sandrine Hirsch [2] and Axel Maeterlinck [3].
Simpler rules for companies’ internal regulations
Since 1 January 2020, the new Code of Companies and Associations applies to companies and associations created before 1 May 2019. The new Code modernises and simplifies Belgian corporate law.
Recently, the Constitutional Court further softened the rules regarding internal regulations (“règlement d’ordre intérieur” / “intern reglement”), stating that they may even contain provisions affecting the rights of shareholders or members, the powers of the corporate bodies and the organisation and procedures of the general meeting. In such cases, these internal regulations must be approved by a resolution meeting the attendance and majority requirements for an amendment of the articles of association.
The impact of the Shareholder Rights Directive II (SRD II) on listed companies
The SRD II has now effect in Belgium.
The law of 28 April 2020 amends the Companies and Associations Code, for example, concerning the regulation of intra-group conflicts, which is likely to apply much more frequently following the extension of its scope of application to “related parties” as defined in IAS 24.
This law also modifies the Transparency Law, allowing listed companies to request information from the relevant intermediary regarding the identity of their shareholders and their shares whatever the importance of their holdings.
The Belgian law is available here [4]. Let’s see how it goes in practice…
UBO Register: new obligations
Since 11 October 2020, all entities reporting to the UBO Register must file any document proving that the information on their ultimate beneficial owners is “adequate, accurate and up-to-date”. These documents can be, for example, the share register, articles of association, notarial deeds, etc. Their access is restricted to the competent authorities.
We remind you that all modifications must be recorded in the UBO-register within a one-month period and that the information recorded must be confirmed annually.
For more information, see our previous news here [5] authored by Sandrine Hirsch [2] and Nikita Tissot [6].
Intellectual property
The protection of geographical indications under international trade agreements
Since 26 February 2020, the Geneva Act of the Lisbon Agreement on Appellations of Origin is binding the EU Member States.
We are eager to learn the next step: which PDO-PGI will be placed on the multilateral register and deserve protection in all countries of the Lisbon Union?
We guess all 3732 current records on the EU’s e-Ambrosia GI register will not have the privilege, but only a few reputed geographical product names. Let’s wait and see!
New regulatory framework for patent attorneys
On 1 December 2020, the first part of the reform came into force. It includes the rules governing access to the profession of patent attorney and the creation of a Belgian Institute for Patent Attorneys, which will notably represent the patent attorneys active in Belgium, enforce ethical rules and organise continuous training.
For a pragmatic overview of the new law by Emmanuel Cornu [7], click here [8].
Don’t forget to stay tuned for the second part of the reform coming in 2021.
Design protection under review by the EU Commission
Are you a designer or a company owning IP rights? Be aware that the EU Commission thinks about reforming national and EU design laws.
The 6 key lines of attack are:
– raising awareness on the benefits of design protection,
– increasing harmonisation of the protection across the EU,
– simplifying the design registration process,
– ensuring consistency with trademark and copyright laws,
– taking better account of the increasing digitalisation and
– introducing rules on spare parts, crucial in the automotive sector.
The full examination and its highlights are available here [9]. We will keep you posted!
What does 2021 hold for the Vertical Block Exemption Regulation (VBER)?
The VBER is currently under review by the EU Commission. Will it be prolonged, revised, replaced? How will the future rules impact current and upcoming business models?
Let’s see what 2021 has in store for us!
For more information, see the European Commission’s press release here [10].
Digital finance and financial services
The impact of Brexit on the Belgian payments scene
The 2016 UK Brexit referendum results will finally kick in on 1 January 2021, but a lot has already happened.
Several UK e-money and payments institutions, mainly focusing on money remittance, FX and B2B services, have chosen Belgium as their post-Brexit EU hub. Around 20% of all Belgian payment institutions have now a Brexit background, adding a lot of maturity to the sector.
2021 will be a stress test and reveal how smooth the migration will be for payment service users.
A European legal framework for crypto-assets in 2021?
In September 2020, as part of its digital finance strategy, the European Commission proposed a draft regulation on markets in crypto-assets (MiCA) to regulate crypto-assets and related services not yet captured by existing EU regulations.
By bringing a legal framework for crypto-assets, MiCA intends to facilitate digital innovation while ensuring consumer protection and financial stability.
If adopted, this regulation will be a major development for FinTechs in 2021. We will keep you posted!
An EU single AML/CFT supervision body for financial institutions and an EU AML Regulation in 2021?
In November 2020, the EU finance ministers agreed to set up a single EU supervision body to prevent money laundering and terrorist financing. It would have direct supervisory competences regarding some categories of obliged entities (among which, credit institutions, payment institutions, e-money institutions and virtual asset service providers), and the power to take over supervision from national supervisors under exceptional circumstances.
They further agreed to support and invite the EU Commission to present a legislative proposal for an anti-money laundering and counter-terrorist financing regulation with a view to an even application of the provisions throughout the EU.
The Commission is expected to present legal proposals in this respect in early 2021. For more information, click here [11].
Outsourcing and cloud services under the financial supervisors’ radar in 2021?
On 1 January 2021, the EIOPA’s Guidelines on outsourcing to cloud service providers [12] will come into force. Existing cloud arrangements will have to be put in line with these new requirements by 31 December 2022.
These guidelines show the supervisors’ increasing focus on (cloud) outsourcing arrangements. With the development of technology, many if not all financial actors outsource IT and other related services to external providers, thereby spreading the risk of the financial sector to non-related actors (e.g. ICT).
The EU and national supervisors have noticed this trend, and we can expect an increasing and direct control of key ICT providers by the financial supervisors in the near future.
Civil law and dispute resolution
Judicial reorganisation procedure (“PRJ/WCO”): two upcoming laws
The first draft bill facilitates access to the PRJ/WCO.
The second one applies to PRJ/WCO by transfer under judicial authority and requires the assignee to motivate its choice not to take over certain employees of the transferred enterprise on technical, economic & organisational grounds independent of the transfer itself.
Read here [13] the key takeaways of these two draft bills by Fanny Laune [14].
Stay tuned to learn more about these upcoming novelties in insolvency law!
Alternative dispute resolution (‘ADR’) is the new black in Brussels
On 3 September 2020, the Brussels French-speaking court for enterprises created a special section dedicated to conciliation, a well-known ADR mode.
A hearing before this section aims to help the parties reach a settlement with the support of a conciliator judge trained to ADR.
This measure is a big step to foster ADR in Brussels.
The roaring twenties’ complete makeover of the 1804 Belgian Civil Code
On 1 November 2020, the brand new Civil Code and the book on evidence came into force. On 1 September 2021, it will be the turn of the book on property law.
Recently, the new Belgian government also confirmed its commitment to proceed, in 2021, with the reform of the Law of obligations prepared by an expert commission including Rafaël Jafferali [15] and Sander Van Loock [16].
This reform strikes a new balance between strengthening party autonomy and expanding the courts’ role where necessary.
New rules on evidence: same old same old?
On 1 November 2020, the new book VIII on evidence of the new Civil Code entered into force. Although the new rules do not seem to deviate from the old ones radically, new principles might prove to be game-changers and will at least modify the way litigators deal with evidence.
For the 10 key takeaways of the new book VIII, see our previous news here [17] authored by Béatrice Thieffry [18] and Charles-Edouard Lambert [19].
The most iconic change is probably that the judge may now shift the burden of proof in exceptional circumstances and with a special motivation.
Real estate and public law
Upcoming (r)evolution of Belgian property law?
Manuela von Kuegelgen [20] explains 10 key practical takeaways of the upcoming reform here [21].
On 1 September 2021, Book III of the new civil Code on property law will come into force. The new rules are more transparent, flexible and modern, but many questions remain, and discussions will be intense for a while…
Don’t wait until the last minute to adapt your contracts. How? Where to start? Read our highlight here [21] or contact our team [22] for assistance.
The strengthening of public cooperation
When can public authorities cooperate without going through a public procurement procedure?
Laura Grauer [23] highlights the conditions for such cooperation here [24], based on the CJEU’s recent decision clarifying the requirements that such cooperation must fulfil to remain outside the scope of public procurement rules.
Compulsory insurance in the construction sector: perfectly imperfect
One year ago, it became mandatory for service providers others than architects to cover for their civil liability and professional indemnity.
Nevertheless, in 2020, it is still not clear what needs to be insured by whom.
Thomas Braun [25] and Alexia Faes [26] clarify the existing rules here [27].
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