The directors of a public limited company (societe anonyme/naamloze vennootschap) are elected by ordinary majority at the general shareholders' meeting (Article 55, §2 Company Laws). A provision in the charter providing for a higher majority is uncommon but valid. Generally, directors are elected by the annual shareholders' meeting which approves the annual accounts. However, they can also be elected at any other validly held extraordinary shareholders' meeting. Directors must be appointed by the entire shareholders' meeting. If different classes of shares are to be granted specific rights with respect to the representation on the board, this is to be organised through the exclusive right of presentation of candidates for election, not through an election by these shares only.
Directors may, but need not, be shareholders. There are no statutory conditions for eligibility as a director. In fact, Belgian law does not have a nationality, residence or age requirement with respect to directors of a Belgian company. The only requirement is that the candidate-director must have the necessary legal capacity to perform the duties of a director, and that no legal prohibitions or incompatibilities exist. For example, persons who have been declared bankrupt (and who have not been reinstated), or who have been convicted of financial offences cannot act as director of a public limited company. Both physical persons and legal entities may perform the functions of a director.
A director must accept his election. He may do so either explicitly or implicitly (e.g., by attending a board meeting).
According to Article 55, §3 of the Company Laws, directors may not be elected for a term exceeding six years. However, they are eligible for re-election, unless otherwise provided in the charter. If not specified, the duration of their office is for six years.
Each appointment must be published in the Annexes to the Belgian State Gazette (Article 12, §1, 3a) Company Laws). Such appointment is only enforceable by the company vis-à-vis third parties as of the day of its publication, unless the company can prove that the third party had prior knowledge thereof (Article 10, §4 Company Laws). On the other hand, third parties may always invoke (for their own benefit) an appointment which has not yet been published.
The content of this article is intended to provide general information on the subject matter. It is therefore not a substitute for specialist advice.
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