Belgian Companies and Associations Code, Book 12, Arts. 12:106 to 12:141: cross-border mergers and divisions

The provisions of this Book on mergers apply to cross-border mergers, subject to the following derogating provisions.

The following are excluded from the scope of this Title:

1° public investment companies with variable capital referred to in Article 15 of the Law of 3 August 2012 on undertakings for collective investment that meet the conditions of Directive 2009/65/EC and on undertakings for investment in receivables;

2° companies in liquidation;

3° credit institutions subject to Book II, Title VIII, of the Law of 25 April 2014 on the status and supervision of credit institutions;

4° companies subject to insolvency proceedings.

A cross-border merger is valid notwithstanding the grant of a cash payment (soulte) exceeding one tenth of the nominal value of the allotted shares or units of the company resulting from the cross-border merger or, in the absence of a nominal value, of their accounting par value, provided that the law applicable to at least one of the foreign companies permits it.

If the company issuing the shares or units is a company without capital, the contribution value, as shown in the annual accounts, of all contributions in cash or in kind made by the partners or shareholders, other than contributions in services (apport en industrie), increased where applicable by the reserves which, under a provision of the articles of association, may be distributed to the partners or shareholders only by means of an amendment of the articles of association, the whole divided by the number of shares or units, is treated as the accounting par value.

From the date on which the cross-border merger takes effect, the cross-border merger has the legal effects referred to in Article 12:13, with the exception of the first subparagraph, 1°, second part, of that Article and, where partners or shareholders have resigned (démission) in accordance with the applicable legal provisions, of the first subparagraph, 2°, of that Article.

A cross-border merger that has taken effect in accordance with the applicable legal provisions may not be declared null and void.

The management bodies of the companies that are to merge draw up common draft terms of cross-border merger by notarial deed or by private deed.

The draft terms of cross-border merger state at least:

1° for each of the merging companies, the legal form, name, object and registered office, and the legal form, name, object and registered office proposed for the company resulting from the cross-border merger;

1° /1 for each of the merging companies, an e-mail address of the company at which any communication from the partners or shareholders, holders of profit-sharing certificates, creditors and employees is deemed to have been validly made;

1° /2 for each of the merging companies, the name, residence and an e-mail address of the notary who will issue the certificate referred to in Article 12:117 and who, where applicable, will record the completion of the merger;

2° the share exchange ratio and, where applicable, the amount of the cash payment (soulte);

3° the terms for the allotment of the shares or units of the company resulting from the cross-border merger;

4° the likely repercussions of the cross-border merger on employment;

5° the date from which the shares or units of the company resulting from the cross-border merger carry the right to participate in profits and any special arrangements relating to that right;

6° the date from which the transactions of the merging companies are treated for accounting purposes as having been carried out on behalf of the company resulting from the cross-border merger; that date may not be earlier than the first day following the end of the financial year for which the annual accounts of the companies involved in the transaction have already been approved;

7° the rights conferred by the company resulting from the cross-border merger on partners or shareholders having special rights and on holders of securities other than units or shares, or the measures proposed concerning them;

8° any special advantages granted to the experts who examine the draft terms of cross-border merger and to the members of the administrative, management, supervisory or controlling bodies of the merging companies;

8° /1 whether the company resulting from the cross-border merger is not governed by Belgian law, or whether the company has received any incentives or subsidies in the five years preceding the cross-border merger;

9° where applicable, the deed of incorporation of the company resulting from the cross-border merger and its articles of association if these are contained in a separate instrument;

10° where applicable, information on the procedures by which the arrangements for the involvement of employees in the definition of their rights to participation in the company resulting from the cross-border merger are determined in accordance with collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022;

11° information on the evaluation of the assets and liabilities transferred to the company resulting from the cross-border merger;

12° the dates of the merging companies’ accounts used to establish the conditions of the cross-border merger;

13° a precise description of the cash compensation (soulte en espèces) allotted to holders of profit-sharing certificates in accordance with Article 12:116/1, § 1;

14° any safeguards, such as guarantees or pledges, to be offered to creditors after the cross-border merger.

The second subparagraph, 2°, 3°, 5° and 13°, does not apply to the draft terms of cross-border merger in the case of a cross-border merger as referred to in Article 12:7, 1°, and in the case of a cross-border merger as referred to in Article 12:7, 2°, where all the shares and other securities conferring voting rights are held directly or indirectly by a single person.

Note. In the second subparagraph, 8°/1, the words “ou que” (“or whether”) appear to be an error. Read with the parallel provisions on cross-border divisions (Article 12:124, 14°) and cross-border conversions (Article 14:18, 10°), the point evidently requires the draft terms to state, where the company resulting from the cross-border merger is not governed by Belgian law, whether the company has received any incentives or subsidies in the five years preceding the cross-border merger. The provision is reproduced as it stands in the official text.

The following documents must be filed in full with the registry of the enterprise court of their registered office and published in full, by each company involved in the merger, in accordance with Articles 2:8 and 2:14, 1°:

1° the common draft terms of merger referred to in Article 12:111;

2° a notice informing the holders of shares and profit-sharing certificates, the creditors and the employees’ representatives of the merging company or, where there are no such representatives, the employees themselves, that they may submit to their respective company comments on the common draft terms of cross-border merger no later than five working days before the date of the meeting of the competent body called to decide on the draft terms of merger.

The filing takes place no later than three months before the decision on the cross-border merger referred to in Article 12:116.

By way of derogation from paragraph 1, a company may make the documents referred to in paragraph 1 available free of charge on the company’s website for an uninterrupted period beginning at least three months before the date of the meeting of the competent body called to decide on the draft terms of merger and not ending before the end of that meeting.

In the case referred to in the first subparagraph, at least the following particulars are filed and published by extract in accordance with Articles 2:8 and 2:14, 1°, no later than three months before the decision on the cross-border merger referred to in Article 12:116:

1° for each of the merging companies, the legal form, name, object and registered office, and the legal form, name, object and registered office proposed for each newly formed company;

2° for each of the merging companies, the register of legal persons, followed by the name of the court of the company’s registered office, and the enterprise number or, for foreign companies where their law so provides, the register in which the company is entered and its registration number in that register;

3° an indication, for each merging company, of the arrangements made for the exercise of the rights of the creditors, the employees, the partners or shareholders and the holders of securities other than shares of the merging companies;

4° a hyperlink to the company’s website where the common draft terms of cross-border merger, the notice referred to in paragraph 1, first subparagraph, 2°, the report referred to in Article 12:114 and complete information on the arrangements referred to in 3° are available online and free of charge.

Where a Belgian private limited liability company, cooperative company or public limited company merges with a company having one of the legal forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the management service of the Crossroads Bank for Enterprises transmits, with a view to making them available to the public and after they have been made available from the file referred to in Article 2:7, the data and documents listed in tables 6.2.1(a) and 6.2.1(b) of Commission Implementing Regulation (EU) 2021/1042 of 18 June 2021 laying down rules for the application of Directive (EU) 2017/1132 of the European Parliament and of the Council as regards technical specifications and procedures for the system of interconnection of registers and repealing Commission Implementing Regulation (EU) 2020/2244, to the European system of interconnection of registers referred to in Article 22 of that Directive.

No later than three months after the publication of the draft terms of merger in the annexes to the Belgian Official Gazette, creditors of the company who are not satisfied with the safeguards offered under Article 12:111, second subparagraph, 14°, have the right, notwithstanding any provision to the contrary, to demand from the company security or any other safeguard for their claims that had arisen but had not yet fallen due at the time of publication and for their claims that were the subject of an action brought before the courts or in arbitration against the company before the publication of the draft terms of merger.

For that purpose and on pain of inadmissibility of the application, the creditor sends a written request simultaneously to the company and to the notary named in the common draft terms of merger.

The company may set aside this demand by paying the claim at its value, after deduction of the discount.

Failing agreement, or if the creditor has not received satisfaction, the more diligent party submits the dispute to the president of the enterprise court of the registered office of the debtor company, sitting in summary proceedings.

Without prejudice to the rights of the parties on the merits, the president determines the security to be provided by the company and sets the period within which it must be provided, unless he or she decides that no security is required, having regard either to the guarantees and privileges that the creditor enjoys or will enjoy or to the solvency of the recipient company.

If the security imposed by the president is not provided within the period that he or she has set, the claim immediately falls due.

The security or other safeguard referred to in the first subparagraph is conditional on the cross-border merger taking effect in accordance with the jurisdiction to which the company resulting from the cross-border merger is subject.

Paragraph 1 does not apply to cross-border mergers where a company being acquired is governed by Belgian law and subject to the supervision of the National Bank of Belgium or of the European Central Bank.

In each company, the management body draws up a detailed written report for the holders of shares and profit-sharing certificates and for the employees, explaining and justifying the legal and economic aspects of the cross-border merger and explaining the implications of the cross-border merger for employees. The report explains in particular the implications of the cross-border merger for the future business of the company.

The company may include the elements referred to in the third and fifth subparagraphs in a single report or in separate reports for the holders of shares and profit-sharing certificates and for the employees respectively, containing the relevant section.

The report referred to in the first subparagraph states, for the holders of shares and profit-sharing certificates:

1° the financial position of the companies that are to merge;

2° the cash compensation (soulte en espèces) referred to in Article 12:116/1 and the method or methods used to determine it, together with the relative weight given to those methods, the valuation to which each method leads and any difficulties encountered;

3° the proposed share exchange ratio and, where applicable, the method or methods used to determine the exchange of shares, together with the relative weight given to those methods, the valuation to which each method leads and any difficulties encountered;

4° the desirability, the conditions and the arrangements of the cross-border merger and the consequences of the cross-border merger for the holders of shares and profit-sharing certificates;

5° the rights and remedies available to the holders of profit-sharing certificates in accordance with Article 12:116/1.

The third subparagraph does not apply if all the holders of shares and profit-sharing certificates have so decided. Companies all of whose shares are held by a single person are not required to apply the third subparagraph.

The report referred to in the first subparagraph states, for the employees:

1° the implications of the cross-border merger for employment relationships and, where applicable, any measures to be taken to safeguard those relationships;

2° any material changes to the applicable conditions of employment or to the locations of the company’s places of business;

3° how the factors set out in 1° and 2° affect any subsidiaries of the company.

The fifth subparagraph does not apply if all the employees of the company and, where applicable, of its subsidiaries form part of the management body.

No later than six weeks before the date of the meeting of the competent body called to decide on the draft terms of merger, the report referred to in the first subparagraph or, where applicable, in the fifth subparagraph is made available, at least in electronic form, to the employees’ representatives or, where there are no representatives, to the employees themselves.

If the employees’ organisations represented on the works council or, failing a works council, in the trade union delegation or, failing both a works council and a trade union delegation, on the committee for prevention and protection at work or, where there are no representatives, the employees themselves deliver an opinion in the context of the information provided for in Article 11 of collective labour agreement No 9 of 9 March 1972 and that opinion reaches the management body in good time, the opinion is annexed to the report referred to in the first subparagraph or, where applicable, in the fifth subparagraph. The management body provides the aforementioned organisations or the employees themselves with a reasoned response to that opinion before the meeting called to decide on the draft terms of merger.

This Article does not apply to the company being acquired in the case of a cross-border merger as referred to in Article 12:7, 1°, and in the case of a cross-border merger as referred to in Article 12:7, 2°, where all the shares and other securities conferring voting rights are held directly or indirectly by a single person.

If both a report in accordance with paragraph 1, third subparagraph, and a report in accordance with Article 12:114, § 1, have been drawn up, Articles 5:121, 5:133, 6:110, 7:179 and 7:197 do not apply, as the case may be, to an acquiring company having the legal form of a private limited liability company, a cooperative company, a public limited company, a European company or a European cooperative society.

In each company, a written report on the draft terms of cross-border merger is drawn up either by the statutory auditor or, where there is no statutory auditor, by a registered auditor or a certified external accountant appointed by the management body or, in general partnerships or limited partnerships, by the general meeting.

The statutory auditor, the registered auditor or the appointed certified external accountant must in particular state whether, in his or her opinion, the cash compensation (soulte en espèces) referred to in Article 12:111, second subparagraph, 13°, and the share exchange ratio are fair and reasonable. In assessing the cash compensation, account is taken of any market price of the shares in the merging companies before the announcement of the draft terms of merger or of the value of the companies, excluding the effects of the proposed merger, as determined in accordance with generally accepted valuation methods.

The report referred to in the first subparagraph must at least:

0° /1 indicate the methods used to determine the proposed cash compensation;

1° indicate the methods used to determine the proposed share exchange ratio;

2° state whether the methods referred to in 0° /1 and 1° are appropriate and indicate the value arrived at using each of those methods, giving an opinion on the relative importance attributed to those methods in arriving at the value adopted and, where different methods are used in the merging companies, also on whether the use of different methods was appropriate;

3° indicate any special valuation difficulties.

(…)

The statutory auditor, the registered auditor or the appointed certified external accountant may obtain from the merging companies all the information that they consider necessary for drawing up the report referred to in this Article.

Instead of the statutory auditor, a registered auditor or the appointed certified external accountant acting on behalf of each of the merging companies, the report referred to in paragraph 1 may be drawn up by one or more statutory auditors, registered auditors or certified external accountants appointed at the joint request of those companies and designated or approved for that purpose by the president of the enterprise court in accordance with Article 588, 17°, of the Judicial Code, if such designation or approval is applied for in Belgium. That independent expert or those independent experts draw up a single written report for all the holders of shares and profit-sharing certificates.

The report referred to in paragraph 1 is not required if all the holders of shares and profit-sharing certificates of each of the companies involved in the cross-border merger have so decided.

Companies all of whose shares are held by one person are not required to apply this Article.

The report referred to in paragraph 1 is not required in the case of a cross-border merger as referred to in Article 12:7, 1°, and in the case of a cross-border merger as referred to in Article 12:7, 2°, where all the shares and other securities conferring voting rights are held directly or indirectly by a single person.

In that case, Articles 5:121, 5:133, 6:108, § 2, 6:110, 7:179 and 7:197 do not apply.

If a report has been drawn up both in accordance with paragraph 1 and in accordance with Article 12:113, § 1, third subparagraph, Articles 5:121, 5:133, 6:110, 7:179 and 7:197 do not apply, as the case may be, to an acquiring company having the legal form of a private limited liability company, a cooperative company, a public limited company, a European company or a European cooperative society.

If a report has been drawn up in accordance with paragraph 1, Articles 7:7, 7:12, 7:13, second subparagraph, second sentence, and 7:14, first subparagraph, 2° and 7°, apply neither to the public limited company nor to the European company nor to the European cooperative society resulting from the merger.

If a report has been drawn up in accordance with paragraph 1, Articles 5:7, 5:9 and 5:12, first subparagraph, 2° and 5°, do not apply to the private limited liability company resulting from the merger.

If a report has been drawn up in accordance with paragraph 1, Articles 6:8, 6:10 and 6:13, first subparagraph, 2° and 5°, do not apply to the cooperative company resulting from the merger.

In each company, the agenda of the general meeting called to decide on the draft terms of merger announces the draft terms of cross-border merger and the reports provided for in Articles 12:113 and 12:114, as well as the right of holders of shares and profit-sharing certificates to obtain those documents free of charge. This obligation does not apply if the management body approves the merger in accordance with Article 12:116, § 1, second subparagraph, and § 2.

A copy of the draft terms of merger and of the reports referred to in Articles 12:113 and 12:114 is communicated to the holders of registered shares and profit-sharing certificates at least six weeks before the general meeting that decides on the merger, in accordance with Article 2:32.

Except in listed companies, a copy is also communicated without delay to the persons who have completed the formalities required by the articles of association for admission to the general meeting referred to in Article 12:116, § 1, first subparagraph.

However, in the case of a cooperative company, the draft terms and the reports referred to in the first subparagraph need not be communicated to the holders of shares and profit-sharing certificates in accordance with the second and third subparagraphs.

In that case, every holder of shares and profit-sharing certificates has the right to inspect those documents at the company’s registered office, in accordance with paragraph 2, no later than six weeks before the date of the meeting that will decide on the draft terms of merger, and to obtain a copy of them, in accordance with paragraph 3, within the same period.

Every holder of shares or profit-sharing certificates also has the right, from the publication of the draft terms of merger in accordance with Article 12:111, at least one month before the date of the general meeting called to decide on the draft terms of cross-border merger, to inspect the following documents at the company’s registered office as soon as they are available:

1° the draft terms of cross-border merger;

2° where applicable, the reports referred to in Articles 12:113 and 12:114;

3° the annual accounts for the last three financial years of each of the merging companies;

4° for private limited liability companies, public limited companies, cooperative companies, European companies and European cooperative societies, the reports of the management body and, if there is a statutory auditor, the reports of the statutory auditor, for the last three financial years;

5° where applicable, where the draft terms of merger are dated at least six months after the end of the financial year to which the last annual accounts relate, an accounting statement closed less than three months before the date of the draft terms of merger and drawn up in accordance with the second to fourth subparagraphs.

That accounting statement is drawn up using the same methods and the same layout as the last annual accounts.

It is not necessary, however, to carry out a new inventory.

The changes to the valuations shown in the last balance sheet may be limited to those resulting from book entries. Account must nevertheless be taken of interim depreciation and provisions and of material changes in value not shown in the books.

The first subparagraph, 5°, does not apply if the company publishes a half-yearly financial report referred to in Article 13 of the Royal Decree of 14 November 2007 on the obligations of issuers of financial instruments admitted to trading on a regulated market and makes it available to the holders of shares and profit-sharing certificates in accordance with this paragraph.

The first subparagraph, 5°, does not apply if all the partners or shareholders and the holders of other securities conferring voting rights of each of the companies involved in the merger have so decided.

Every holder of shares or profit-sharing certificates may obtain, free of charge and on simple request, a full copy or, if he or she so wishes, a partial copy of the documents referred to in paragraph 2, except those that have been sent to him or her pursuant to paragraph 1.

The right referred to in the first subparagraph to obtain a copy free of charge of the documents referred to in paragraph 2, 1°, 3°, 4° and 5°, and in Article 12:113, § 1, third subparagraph, also belongs to creditors who have a right of opposition under Article 12:112/1.

Where a company makes the documents referred to in paragraph 2 available free of charge on the company’s website for an uninterrupted period of six weeks beginning before the date of the meeting (…) of the merging companies called to decide on the draft terms of merger, (…) and not ending before the end of that meeting, (…) it is not required to make the documents referred to in paragraph 2 available at its registered office.

Paragraph 3 does not apply if the company’s website allows the partners, the shareholders, the holders of profit-sharing certificates and the creditors having a right of opposition under Article 12:112/1, throughout the period referred to in the first subparagraph, to download and print the documents referred to in paragraph 2, the reports referred to in Articles 12:113 and 12:114 being, however, inaccessible to creditors, but the document referred to in Article 12:113, § 1, third subparagraph, 1°, being included. In that case, the information remains on the company’s website and may be downloaded and printed until at least one month after the date of the meeting of each of the companies called to decide on the draft terms of merger.

On expiry of the period referred to in Article 12:112/1, without prejudice to the special provisions set out in this Article and subject to more stringent provisions in the articles of association, the general meeting decides on the cross-border merger of the company in compliance with the following quorum and majority rules:

1° those attending or represented at the meeting must represent not only at least half of the capital or, if the company has no capital, half of the total number of shares or units issued, but also half of the number of profit-sharing certificates, if any. If this condition is not met, a new convening notice is required. The second meeting may validly deliberate and decide, whatever the number of shares or profit-sharing certificates present or represented;

2° a) a proposal for a cross-border merger is adopted only if it obtains three quarters of the votes, abstentions being disregarded in both the numerator and the denominator;

b) (…)

By way of derogation from the first subparagraph, approval by the general meeting of the company being acquired is not required in the case of a cross-border merger as referred to in Article 12:7, 1°, and in the case of a cross-border merger as referred to in Article 12:7, 2°, where all the shares and other securities conferring voting rights are held directly or indirectly by a single person.

Notwithstanding any provision to the contrary in the articles of association, the profit-sharing certificates of a company being acquired carry one vote per security in that vote. They may not be allotted, in total, a number of votes greater than half of the number allotted to all the shares, nor be counted in the vote for a number of votes greater than two thirds of the number of votes cast by the shares. If the votes subject to the limitation are cast in different directions, the reduction is made proportionally; fractions of votes are disregarded.

Where an acquiring company having the legal form of a private limited liability company, a cooperative company, a public limited company, a European company or a European cooperative society holds at least 90% (…) of the shares, units and other securities conferring voting rights in the company being acquired, approval by the general meeting of the acquiring company of the merger and of the change in the number of shares of the acquiring company and, where applicable, in its capital as a result of that merger is not required in so far as the following conditions are met:

1° the draft terms of merger referred to in Article 12:112 are filed, for the acquiring company, no later than six weeks before its decision on the merger;

2° without prejudice to the exceptions referred to in Article 12:115, every partner or shareholder of the acquiring company has the right, at least six weeks before the date referred to in 1°, to inspect the documents mentioned in Article 12:115, § 2, at the company’s registered office.

One or more holders of shares and/or profit-sharing certificates of the acquiring company who hold 5% of the shares and profit-sharing certificates issued or who, in a public limited company or a European company, represent 5% of the subscribed capital nevertheless have the right to have a general meeting of that company convened to decide on the draft terms of merger. (…)

In the cases mentioned in paragraph 1, second subparagraph, and paragraph 2, first subparagraph, the management body of the company being acquired decides, on expiry of the period referred to in Article 12:112/1, on the approval of the merger and, where applicable, on the change in the number of shares of the acquiring company and, where applicable, in its capital as a result of the merger. Articles 5:134 to 5:137 and 7:198 to 7:203 do not apply to such a decision.

Note. The official text gives the decision in both cases to the management body “of the company being acquired” (“de la société absorbée”). That fits the case of § 1, second subparagraph, but not that of § 2, first subparagraph, where the approval dispensed with is that of the general meeting of the acquiring company and the decision concerns the number of shares and the capital of the acquiring company. In that case the decision evidently falls to the management body of the acquiring company, as under the parallel domestic provision (Article 12:30, § 6, second subparagraph). The text is translated as it stands.

(…)

If there are several classes of shares, units or securities, whether or not representing the capital stated in the articles of association, and if the cross-border merger entails a change in their respective rights, Article 5:102, third subparagraph, Article 6:87, third subparagraph, or Article 7:155, third subparagraph, applies by analogy. The general meeting may, however, validly deliberate and decide only if the quorum and majority requirements laid down in paragraph 1 are met in each class.

By way of derogation from paragraphs 1 to 4, the consent of all the partners or shareholders is required:

1° in acquiring companies or companies to be acquired that are general partnerships;

2° in companies to be acquired where the acquiring company is:

a) a general partnership;

b) a limited partnership.

In the cases referred to in the first subparagraph, 2°, the unanimous consent of the holders of securities not representing the capital is, where applicable, required.

The consent of a partner or shareholder of a Belgian company who has or will have unlimited liability for the debts of a company involved in the cross-border merger is always required.

In a limited partnership, the consent of all the general partners is also required.

The general meeting or, in the case referred to in paragraph 1, second subparagraph, and paragraph 2, the management body of each of the merging companies may make implementation of the cross-border merger conditional on express ratification by it of the arrangements decided on for employee participation in the company resulting from the cross-border merger.

In the case of a cross-border merger by acquisition, the general meeting of the acquiring company adopts, immediately after the decision on the cross-border merger, any amendments to its articles of association, including provisions that would amend its object, (…) subject to the quorum and majority requirements laid down by this Code. As long as that amendment of the articles of association has not been made, the decision on the cross-border merger has no effect.

In the case of a cross-border merger by formation of a new company, the general meeting of each company involved in the merger must approve, immediately after the decision on the cross-border merger, the draft deed of incorporation and the articles of association of the new company, in accordance with the same quorum and majority rules as those required for the decision on the merger. Failing this, the decision on the merger has no effect. Articles 5:4, 6:5 and 7:3 do not apply.

In each company involved in the merger, the minutes of the general meeting or, in the cases referred to in paragraph 1, second subparagraph, and paragraph 2, second subparagraph, of the management body that decides on the merger are drawn up as a notarial deed.

That deed reproduces, where applicable, the conclusions of the report referred to in Article 12:114.

Note. The reference to “paragraph 2, second subparagraph” appears to be an error: § 2, second subparagraph, gives holders of 5% the right to have a general meeting convened, in which case the general meeting decides. The management body decides on the merger in the cases of § 1, second subparagraph, and § 2, first subparagraph, as § 2, third subparagraph, § 7 and Article 12:115, § 1, show. The reference should read “paragraph 2, first subparagraph”.

The deeds recording the merger decisions taken by the acquiring company and by the company or companies being acquired, in so far as they are governed by Belgian law, are filed and published by extract in accordance with Articles 2:8 and 2:14, 1°; where applicable, the deed amending the articles of association of the acquiring company is also filed and published in accordance with Articles 2:8 and 2:14, 1°. Articles 2:7, 2:8 and 2:13 apply to the deed of incorporation of the new company, in so far as it is governed by Belgian law.

Those deeds are published simultaneously within ten days of the filing of the deed.

If the company resulting from the cross-border merger is a foreign company, every holder of shares or profit-sharing certificates of a company being acquired who voted against the common draft terms of cross-border merger at the general meeting and notified the company of this before the vote, where applicable at the e-mail address mentioned in the draft terms of merger or at the e-mail address referred to in Article 2:31, has the right to resign (démission) from the company if and in so far as he or she exercises that right at the general meeting that decides to proceed with a cross-border merger.

Resignation entitles the holder to repayment of the security at a value equivalent to the value of the security mentioned in the draft terms of merger referred to in Article 12:111, second subparagraph, 13°.

Payment of that withdrawal share may be made only after the company has satisfied the creditors who asserted their rights within the three-month period referred to in Article 12:112/1, unless an enforceable court decision has rejected their claims to obtain a guarantee, but may not take place later than two months after the date on which the merger takes effect in accordance with the jurisdiction to which the company resulting from the cross-border merger is subject.

Articles 5:142, 5:143, 6:115, 6:116 and 7:212 do not apply.

Nor do Articles 5:145, 5:154, 6:120 and 7:215 apply.

A holder of shares or profit-sharing certificates who voted against the common draft terms of cross-border merger at the general meeting in the manner provided for in the first subparagraph and who is not satisfied with the cash compensation (soulte en espèces) offered under Article 12:111, second subparagraph, 13°, may bring the dispute before the president of the enterprise court of the registered office of the merging company, sitting in summary proceedings, within one month of the date of the general meeting that decides on the cross-border merger. That challenge does not release the company from paying the cash compensation offered, referred to in Article 12:111, second subparagraph, 13°, within the limits set in the third subparagraph.

Repayment may also be made by the acquiring company.

The units or shares of the resigning partner or shareholder are cancelled at the moment when the cross-border merger takes effect under the law of the jurisdiction to which the company resulting from the cross-border merger is subject.

Every partner or shareholder who has not exercised the right of resignation referred to in paragraph 1, who indicated, no later than at the general meeting, that he or she is not satisfied with the exchange of units or shares proposed in Article 12:111, second subparagraph, 2°, and who voted against the common draft terms of cross-border merger at the general meeting and had this recorded as such in the minutes of the general meeting, may apply to the president of the enterprise court of the registered office of the merging company, ruling in summary proceedings, for a cash payment, within thirty days of the date of the general meeting called to decide on the cross-border merger.

With the consent of the partner or shareholder, the cash payment referred to in the first subparagraph may be replaced by an allotment of units in the acquiring company or by other consideration in kind.

The officiating notary must verify and certify the existence and legality, both internal and external, of the acts and formalities incumbent on the company for which he or she officiates. To that end, he or she issues, without delay and no later than two months after the date of receipt of the documents and information referred to in the second subparagraph, a certificate conclusively attesting to the proper completion of the acts and formalities to be completed prior to the cross-border merger that are provided for in this Section.

When submitting its application for a pre-merger certificate to the notary referred to in the first subparagraph, the merging company governed by Belgian law attaches the following documents, in so far as those documents have not previously been sent to the notary:

1° the common draft terms of cross-border merger;

2° where applicable, the report and the attached opinion referred to in Article 12:113, and the report referred to in Article 12:114;

3° all comments submitted in accordance with Article 12:112, § 1, first subparagraph, 2°;

4° information on the approval referred to in Article 12:116 by the general meeting or, in the case referred to in Article 12:116, § 2, third subparagraph, by the management body;

5° information on the number of employees at the time the common draft terms of cross-border merger were drawn up;

6° information on the existence of subsidiaries and their geographical location;

7° a certificate issued by the administration of the Federal Public Service Finance responsible for the collection and recovery of tax and non-tax claims, showing whether any sums are owed by the company in respect of the tax and non-tax claims whose collection and recovery are handled by that administration, a certificate issued by the contribution collection bodies stating whether any social security contributions, contribution surcharges and late-payment interest are owed by the company, and a certificate issued by the contribution collection bodies stating whether any claims referred to in Article 16bis of Royal Decree No 38 of 27 July 1967 organising the social status of self-employed persons are owed by the company; those certificates are issued within thirty days from the submission of the application and may not be more than thirty days old when they are sent to the notary. The King may determine the requirements that this certificate must meet.

That application may be submitted by ordinary post or by e-mail.

The notary referred to in the first subparagraph verifies:

1° whether the common draft terms of cross-border merger contain information on the procedures by which, in accordance with collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022, the arrangements for employee participation are determined and on the possible options for those arrangements;

2° the documents referred to in the second subparagraph;

3° where applicable, the statement by the merging companies that the procedure referred to in collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022, has been initiated.

If the notary finds that the acts and formalities to be completed prior to the cross-border merger have not been completed, or that creditors seeking in court additional security or any other guarantee in accordance with Article 12:112/1 have not been satisfied, unless an enforceable court decision has rejected their claims, he or she does not issue the pre-merger certificate and informs the company of the reasons for that decision. In that case, the notary may grant a period to remedy the situation, which may not exceed two months.

If the notary finds that a cross-border merger has been carried out for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Union or national law, or for criminal purposes, he or she does not issue the pre-merger certificate. In making that assessment, the notary must take into account all relevant facts and circumstances of which he or she has become aware – such as indicative factors, if relevant and not taken in isolation – in the course of the scrutiny referred to in the first subparagraph, in particular through consultation of the public authorities referred to in the second subparagraph, 7°.

The period referred to in the first subparagraph may be extended by a maximum of two months so that the notary can take into account additional information or carry out additional investigations.

If the notary considers that, owing to the complexity of the cross-border procedure, the certificate cannot be issued within the periods mentioned in the first and seventh subparagraphs, he or she informs the company of the reasons for the delay before those periods expire.

For the purposes of the scrutiny referred to in the first subparagraph, the notary may request the necessary information from the company and from any relevant public authority and may also call on an independent expert.

The certificate referred to in the first subparagraph is filed and published in accordance with Articles 2:8 and 2:14, 1°.

Where a Belgian private limited liability company, cooperative company or public limited company merges with a company having one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the management service of the Crossroads Bank for Enterprises transmits the certificate referred to in the first subparagraph, together with the related data mentioned in Commission Implementing Regulation (EU) 2021/1042 of 18 June 2021 laying down rules for the application of Directive (EU) 2017/1132 of the European Parliament and of the Council as regards technical specifications and procedures for the system of interconnection of registers and repealing Commission Implementing Regulation (EU) 2020/2244, via the European system of interconnection of registers referred to in Article 22 of that Directive and after they have been made available from the file referred to in Article 2:7, to the register of the Member State of the company resulting from the merger, with a view to making them available to the public.

If the company resulting from the cross-border merger is governed by Belgian law, the notary records the completion of the merger in a notarial deed, after satisfying himself or herself that the merging companies have approved the common draft terms of cross-border merger in the same terms and, where applicable, that the arrangements for employee participation have been formally determined in accordance with collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022.

To that end, each merging company submits to the notary referred to in the first subparagraph (…) a copy of the common draft terms of cross-border merger approved, in accordance with Article 12:116, by the general meeting or the management body, as the case may be, together with documents establishing that it has complied with the relevant applicable foreign requirements.

In the case of a merging company having one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the notary consults the pre-merger certificate, which the notary accepts as conclusive evidence that the applicable foreign requirements have been complied with.

The certificate is forwarded by the management service of the Crossroads Bank for Enterprises to an electronic database system which forms part of the file of the legal person and is managed by the Royal Federation of Belgian Notaries (FEDNOT), after its receipt via the European system of interconnection of registers referred to in Article 22 of that Directive.

The deed of cross-border merger is filed and published by extract in accordance with Articles 2:8 and 2:14, 1°.

If the company resulting from the cross-border merger is governed by Belgian law, the cross-border merger (…) takes effect on the date on which the officiating notary records the completion of the merger in accordance with Article 12:118. In the case of a cross-border merger by formation of a new company, the new company must also have been formed.

(…)

Where the company resulting from the merger is a Belgian private limited liability company, cooperative company or public limited company and the merging companies have one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the management service of the Crossroads Bank for Enterprises notifies the registers of the Member States of the merging companies that the cross-border merger has taken effect, via the European system of interconnection of registers referred to in Article 22 of that Directive.

If a company being acquired is governed by Belgian law, its registration in the Belgian register of legal persons may be removed only after receipt of the notification from the foreign register that the merger has taken effect. The management service of the Crossroads Bank for Enterprises publishes that notification in accordance with Article 2:14, 1°, and amends the data entered in the Belgian register of legal persons accordingly.

In the absence of the notification by the foreign register referred to in the first subparagraph, the management body of the company being acquired publishes the fact that the merger has taken effect in accordance with Article 2:14, 1°, thereby filing proof that the merger has taken effect.

The provisions of this Book on divisions apply to cross-border divisions, subject to the following derogating provisions.

The following are excluded from the scope of this Title:

1° public investment companies with variable capital referred to in Article 15 of the Law of 3 August 2012 on undertakings for collective investment that meet the conditions of Directive 2009/65/EC and on undertakings for investment in receivables;

2° companies in liquidation;

3° credit institutions subject to Book II, Title VIII, of the Law of 25 April 2014 on the status and supervision of credit institutions;

4° companies subject to insolvency proceedings.

A cross-border division is validly effected notwithstanding a cash payment (soulte) exceeding one tenth of the nominal value or, in the absence of a nominal value, of the accounting par value of the shares issued by the company resulting from the cross-border division, provided that the law governing at least one of the foreign companies involved in the division permits it.

If the company issuing the shares is a company without capital, the accounting par value is deemed to be the contribution value, as shown in the annual accounts, of all contributions in cash or in kind made by the partners or shareholders, other than contributions in services (apport en industrie), increased, where applicable, by the reserves which, under a provision of the articles of association, may be distributed to the partners or shareholders only by amending the articles of association, the whole divided by the number of shares or units.

From the date on which the cross-border division takes effect, a cross-border division has the legal effects referred to in Article 12:13, with the exception of the first subparagraph, 1°, second part, of that Article and, where partners or shareholders have resigned (démission) in accordance with the applicable legal provisions, of the first subparagraph, 2°, of that Article.

A cross-border division that has taken effect in accordance with the applicable legal provisions may not be declared null and void.

The management bodies of the companies taking part in the division draw up common draft terms of division by notarial deed or by private deed.

The draft terms of cross-border division must state at least:

1° the legal form, name, object and registered office of the companies taking part in the division and, where applicable, of the new company or companies;

2° for each of the companies taking part in the division, an e-mail address of the company to which any communication from the partners or shareholders, holders of profit-sharing certificates, creditors and employees is deemed to have been validly made;

3° for each of the companies taking part in the division, the name, residence and an e-mail address of the notary who will issue the certificate referred to in Article 12:138 and before whom, where applicable, the deed of cross-border division will be executed;

4° where applicable, the deed of incorporation of the new company or companies and their articles of association if these are contained in a separate deed; and, where applicable, any amendment to the articles of association of the company being divided in the case of a transaction treated as a division as referred to in Article 12:8, 1° and 3°;

5° the share exchange ratio and, where applicable, the amount of the cash payment (soulte);

6° the arrangements for the delivery of the shares or units of the recipient or new company;

7° in the case of a cross-border division by formation of new companies, the proposed indicative timetable for the cross-border division;

8° the likely repercussions of the cross-border division on employment;

9° the date from which the shares or units of the recipient or new company or companies entitle the holders to share in the profits, and any special conditions affecting that entitlement;

10° the date from which the transactions of the company being divided are treated for accounting purposes as having been carried out on behalf of one of the recipient or new companies, which date may not be earlier than the first day following the end of the financial year for which the annual accounts of the companies involved in the transaction have already been approved;

11° the rights conferred by the recipient or new company or companies on the partners or shareholders of the company being divided who have special rights and on the holders of securities other than shares, or the measures proposed concerning them;

12° the safeguards, such as guarantees or pledges, that will be offered to creditors after the cross-border division;

13° any special advantages granted to the experts who examine the draft terms of cross-border division and to the members of the administrative, management, supervisory or controlling bodies of the companies taking part in the division;

14° if the company being divided is governed by Belgian law, whether the company has received any incentives or subsidies in the five years preceding the cross-border division;

15° where applicable, the allocation to the partners or shareholders of the company being divided of shares or units and other securities of the recipient or new companies, of the company being divided, or of both, and the criterion on which that allocation is based;

16° a precise description of the cash compensation (soulte en espèces) allotted to holders of shares and profit-sharing certificates in accordance with Article 12:137, § 1;

17° where applicable, information on the procedures by which, where applicable, the arrangements for the involvement of employees in the definition of their participation rights in the recipient or new company or companies are determined in accordance with collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022;

18° the precise description and allocation of the assets and liabilities to be transferred to each of the recipient or new companies, or of the assets or liabilities retained by the company being divided in the case of a transaction treated as a division as referred to in Article 12:8, where applicable and without prejudice to the application of Article 12:60 and Article 12:76, including the assets or liabilities not explicitly allocated in the draft terms of cross-border division, such as assets or liabilities unknown on the date on which the draft terms of cross-border division are drawn up;

19° information on the valuation of the assets and liabilities allocated to each company taking part in the cross-border division;

20° the date of the accounts of the company being divided used to establish the conditions of the cross-border division.

For draft terms of cross-border division concerning a transaction treated as a division as referred to in Article 12:8, 2°, the second subparagraph, 5°, 6°, 9°, 11° and 15°, does not apply.

For draft terms of cross-border division concerning a transaction treated as a division as referred to in Article 12:8, 3°, the second subparagraph, 5°, 6°, 9°, 11°, 15° and 16°, does not apply.

The following documents must be filed and published in full by each company involved in the division at the registry of the enterprise court of the company’s registered office, in accordance with Articles 2:8 and 2:14, 1°:

1° the common draft terms of division referred to in Article 12:124;

2° a notice to the holders of shares and profit-sharing certificates, the creditors and the employees’ representatives of the companies taking part in the division or, where there are no such representatives, to the employees themselves, informing them that they may submit comments on the common draft terms of division to their respective company no later than five working days before the date of the meeting of the competent body called upon to decide on the draft terms of division.

The filing takes place no later than three months before the decision on the cross-border division referred to in Article 12:131.

By way of derogation from paragraph 1, a company may make the documents referred to in paragraph 1 available free of charge on the company’s website for an uninterrupted period of at least three months before the date of the meeting of the competent body called upon to decide on the draft terms of division and not ending before the end of that meeting.

In the case referred to in the first subparagraph, at least the following particulars are filed and published by extract in accordance with Articles 2:8 and 2:14, 1°, no later than three months before the decision on the cross-border division referred to in Article 12:131:

1° for each of the companies taking part in the division, the legal form, name, object and registered office and, where applicable, the legal form, name, object and registered office proposed for each newly formed company;

2° for each of the companies taking part in the division, the register of legal persons, followed by the name of the court of the company’s registered office, and the enterprise number or, for foreign companies where the law governing them so provides, the register in which the company is entered and its registration number in that register;

3° an indication, for each of the companies taking part in the division, of the arrangements made for the exercise of the rights of creditors, employees, partners or shareholders and holders of securities other than shares;

4° a hyperlink to the company’s website where the draft terms of cross-border division, the notice referred to in paragraph 1, first subparagraph, 2°, the report referred to in Article 12:128 and complete information on the arrangements referred to in 3° are available online and free of charge.

Where a Belgian private limited liability company, cooperative company or public limited company is divided by the formation of new companies and at least one of the new companies has one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the management service of the Crossroads Bank for Enterprises forwards, with a view to making them available to the public and after they have been made available from the file referred to in Article 2:7, the data and documents listed in tables 6.3.1(a) and 6.3.1(b) of Commission Implementing Regulation (EU) 2021/1042 of 18 June 2021 laying down rules for the application of Directive (EU) 2017/1132 of the European Parliament and of the Council as regards technical specifications and procedures for the system of interconnection of registers and repealing Commission Implementing Regulation (EU) 2020/2244, to the European system of interconnection of registers referred to in Article 22 of that Directive.

No later than three months after the publication of the draft terms of division in the annexes to the Belgian Official Gazette, creditors of the debtor company who are not satisfied with the safeguards offered under Article 12:124, second subparagraph, 12°, have, notwithstanding any provision to the contrary, the right to require the company to provide security or any other safeguard for their claims that have arisen but have not yet fallen due at the time of publication and for their claims that are the subject of an action brought against the company before the courts or in arbitration before the publication of the draft terms of division.

To that end, and on pain of inadmissibility of the request, the creditor sends a written request simultaneously to the debtor company and to the notary named in the draft terms of division.

The company being divided or the recipient company may set the request aside by paying the claim at its value, after deduction of the discount.

Failing agreement, or if the creditor has not obtained satisfaction, the more diligent party submits the dispute to the president of the enterprise court of the registered office of the debtor company, sitting in summary proceedings.

Without prejudice to the rights of the parties on the merits, the president determines the security to be provided by the debtor company and sets the period within which it must be provided, unless he or she decides that no security is required, having regard either to the guarantees and privileges that the creditor enjoys or will enjoy or to the solvency of the recipient company.

If the security ordered by the president is not provided within the period that he or she has set, the claim becomes immediately due and the recipient or newly formed companies and, in the case of a transaction treated as a division as referred to in Article 12:8, the company being divided are jointly and severally liable for that obligation.

The security or any other safeguard referred to in the first subparagraph is conditional on the cross-border division taking effect in accordance with the applicable legal provisions.

In each company, the management body draws up a detailed written report for the holders of shares and profit-sharing certificates and for the employees, explaining and justifying the legal and economic aspects of the cross-border division and explaining the implications of the cross-border division for employees. The report sets out, in particular, the implications of the cross-border division for the future business of the company.

The company may include the elements referred to in the third and fifth subparagraphs in a single report or in a separate report intended for the holders of shares and profit-sharing certificates and for the employees respectively, containing the relevant section.

The report referred to in the first subparagraph states, for the holders of shares and profit-sharing certificates:

1° the financial position of the companies taking part in the division;

2° the cash compensation (soulte en espèces) referred to in Article 12:137 and the method or methods used to determine it, as well as the relative weight given to those methods, the valuation to which each method leads and any difficulties encountered;

3° the proposed share exchange ratio and, where applicable, the method or methods used to determine the exchange of shares, as well as the relative weight given to those methods, the valuation to which each method leads and any difficulties encountered;

4° the advisability, the conditions and the terms of the cross-border division and the consequences of the cross-border division for the holders of shares and profit-sharing certificates;

5° the rights and remedies available to the holders of shares and profit-sharing certificates in accordance with Article 12:137.

The third subparagraph does not apply if all the holders of shares and profit-sharing certificates have so decided. Companies all of whose shares are held by one person need not apply the third subparagraph.

The report referred to in the first subparagraph states, for the employees:

1° the implications of the cross-border division for employment relationships and, where applicable, any measures to be taken to safeguard those relationships;

2° any material changes in the applicable conditions of employment or in the locations of the company’s places of business;

3° how the factors set out in 1° and 2° affect any subsidiaries of the company.

The fifth subparagraph does not apply if all the employees of the company and, where applicable, of its subsidiaries are members of the management body.

No later than six weeks before the date of the meeting of the competent body called upon to decide on the draft terms of division, the report referred to in the first subparagraph or, where applicable, in the fifth subparagraph is made available to the employees’ representatives or, where there are no representatives, to the employees themselves, at least in electronic form.

If the employees’ organisations represented on the works council or, failing a works council, on the trade union delegation or, failing a works council and a trade union delegation, on the committee for prevention and protection at work, or, where there are no representatives, the employees themselves deliver an opinion in the context of the information provided for in Article 11 of collective labour agreement No 9 of 9 March 1972 and that opinion reaches the management body in time, the opinion is attached to the report referred to in the first subparagraph or, where applicable, in the fifth subparagraph. The management body provides the aforementioned organisations or the employees themselves with a reasoned response to that opinion before the meeting called upon to decide on the draft terms of division.

In the case of a transaction treated as a division as referred to in Article 12:8, 2° and 3°, this Article does not apply.

In the case of a cross-border division by acquisition, Articles 5:121, 5:133, 6:110, 7:179 and 7:197 do not apply, as the case may be, to an acquiring company having the legal form of a private limited liability company, a cooperative company, a public limited company, a European company or a European cooperative society, if both a report in accordance with paragraph 1, third subparagraph, and a report in accordance with Article 12:128, § 1, have been drawn up.

In the case of a cross-border division by formation of new companies, paragraph 1, third subparagraph, does not apply where the shares of each of the new companies are issued to the partners or shareholders of the company being divided in proportion to their rights in the capital of that company or, if the company has no capital, to their share in the equity.

A written report on the draft terms of cross-border division is drawn up in each company either by the statutory auditor or, where there is no statutory auditor, by a registered auditor or a certified external accountant appointed by the management body, or, in general partnerships or limited partnerships, by the general meeting.

The statutory auditor, the registered auditor or the appointed certified external accountant must in particular state whether, in his or her opinion, the cash compensation (soulte en espèces) referred to in Article 12:124, second subparagraph, 15°, and the share exchange ratio are fair and reasonable. In assessing the cash compensation, account is taken of any market price of the shares or units in the company being divided before the announcement of the draft terms of division or of the value of the company, excluding the effects of the proposed division, as determined according to generally accepted valuation methods.

The report referred to in the first subparagraph must at least:

1° state the methods used to determine the proposed cash compensation;

2° state the methods used to determine the proposed share exchange ratio;

3° state whether the methods referred to in 1° and 2° are appropriate and indicate the valuation to which each of those methods leads, giving an opinion on the relative weight given to those methods in arriving at the value adopted; and, if different methods are used in the companies taking part in the division by acquisition, also whether the use of different methods was appropriate;

4° where applicable, state any particular valuation difficulties.

The statutory auditor, the registered auditor or the appointed certified external accountant may obtain from the companies involved in the division all the information they consider necessary for drawing up the report referred to in this Article.

Note. The cash compensation is described in Article 12:124, second subparagraph, 16°; 15° concerns the allocation of shares or units and other securities to the partners or shareholders. The reference should read “16°”. Article 12:137, § 1, second and eighth subparagraphs, contains the same erroneous reference to 15°. The provision is reproduced as it stands in the official text.

In the case of a cross-border division by acquisition, instead of the statutory auditor or a registered auditor or the appointed certified external accountant acting on behalf of each of the companies taking part in the division, the report referred to in paragraph 1 may be drawn up by one or more statutory auditors or registered auditors or appointed certified external accountants appointed or approved for that purpose, at the joint request of those companies, by the president of the enterprise court in accordance with Article 588, 17°, of the Judicial Code, if such appointment or approval is requested in Belgium. The independent expert or experts draw up a single written report intended for all the holders of shares and profit-sharing certificates.

The report referred to in paragraph 1 is not required if all the holders of shares and profit-sharing certificates of each of the companies taking part in the division have so decided.

Companies all of whose shares are held by one person need not apply this Article.

In the case of a transaction treated as a division as referred to in Article 12:8, 2° and 3°, this Article does not apply.

In the case of a cross-border division by acquisition, Articles 5:121, 5:133, 6:110, 7:179 and 7:197 do not apply, as the case may be, to an acquiring company having the legal form of a private limited liability company, a cooperative company, a public limited company, a European company or a European cooperative society, if both a report in accordance with paragraph 1 and a report in accordance with Article 12:127, § 1, third subparagraph, have been drawn up.

In the case of a cross-border division by formation of new companies, this Article does not apply where the shares of each of the new companies are issued to the partners or shareholders of the company being divided in proportion to their rights in the capital of that company or, if the company has no capital, to their share in the equity.

In each company, the agenda of the general meeting called upon to decide on the draft terms of division announces the draft terms of division and the reports provided for in Articles 12:127 and 12:128, as well as the possibility for holders of shares and profit-sharing certificates to obtain those documents free of charge. In the case of a cross-border division by acquisition, this obligation does not apply if the management body approves the division in accordance with Article 12:131, § 2.

A copy of the draft terms of division and of the reports referred to in Articles 12:127 and 12:128 is communicated to the holders of registered shares and profit-sharing certificates at least six weeks before the general meeting that decides on the division, in accordance with Article 2:32.

Except in listed companies, a copy is also communicated without delay to the persons who have completed the formalities required by the articles of association to be admitted to the general meeting.

However, in the case of a cooperative company, the draft terms and the reports referred to in the first subparagraph need not be communicated to the holders of shares and profit-sharing certificates in accordance with the second and third subparagraphs.

In that case, every holder of shares and profit-sharing certificates is entitled to inspect those documents at the company’s registered office in accordance with paragraph 2 no later than six weeks before the date of the meeting called upon to decide on the draft terms of division, and to obtain a copy of them, in accordance with paragraph 3, within the same period.

Every holder of shares or profit-sharing certificates is also entitled, from the publication of the draft terms of division in accordance with Article 12:124, to inspect the following documents at the company’s registered office as soon as they are available:

1° the draft terms of cross-border division;

2° where applicable, the reports referred to in Articles 12:127 and 12:128;

3° the annual accounts for the last three financial years of each company involved in the division;

4° in the case of the private limited liability company, the cooperative company, the public limited company, the European company and the European cooperative society, the reports of the management body and the reports of the statutory auditor on the last three financial years, if any;

5° where applicable, where the draft terms of division are dated at least six months after the end of the financial year to which the latest annual accounts relate: an accounting statement closed less than three months before the date of the draft terms of division and drawn up in accordance with the second to fourth subparagraphs.

That accounting statement is drawn up using the same methods and the same layout as the latest annual accounts.

A new inventory need not, however, be taken.

The valuations shown in the balance sheet need only be altered to reflect entries in the books. However, account must be taken of interim depreciation and provisions and of material changes in value not shown in the books.

The first subparagraph, 5°, does not apply if the company publishes a half-yearly financial report referred to in Article 13 of the Royal Decree of 14 November 2007 on the obligations of issuers of financial instruments admitted to trading on a regulated market and makes it available, in accordance with this subparagraph, to the holders of shares and profit-sharing certificates.

In the case of a cross-border division by acquisition, the first subparagraph, 5°, does not apply if all the partners or shareholders and holders of securities conferring voting rights in each company involved in the division have so decided.

In the case of a cross-border division by formation of new companies, the first subparagraph, 2° and 5°, does not apply where the shares of each of the new companies are issued to the partners or shareholders of the company being divided in proportion to their rights in the capital of that company or, if the company has no capital, to their share in the equity.

In the case of a transaction treated as a division as referred to in Article 12:8, 3°, the first subparagraph, 2° and 5°, does not apply.

Every holder of shares or profit-sharing certificates may obtain, free of charge and on simple request, a full copy or, if he or she so wishes, a partial copy of the documents referred to in paragraph 2, first subparagraph, with the exception of those that have been sent to him or her in accordance with paragraph 1.

The right referred to in the first subparagraph to obtain free of charge a copy of the documents referred to in paragraph 2, first subparagraph, 1°, 3°, 4° and 5°, and in Article 12:127, § 1, third subparagraph, 1°, also belongs to creditors who have a right of opposition under Article 12:126.

If a company makes the documents referred to in paragraph 2, first subparagraph, available free of charge on its website for an uninterrupted period of six weeks beginning before the date of the meeting called upon to decide on the draft terms of division and not ending before the end of that meeting, it need not make the documents referred to in paragraph 2 available at its registered office.

Paragraph 3 does not apply if the company’s website enables the partners, the shareholders, the holders of profit-sharing certificates and the creditors having a right of opposition under Article 12:126, throughout the period referred to in the first subparagraph, to download and print the documents referred to in paragraph 2, first subparagraph, the reports referred to in Articles 12:127 and 12:128 being, however, inaccessible to creditors, but the document referred to in Article 12:127, § 1, third subparagraph, 1°, being included. In that case, the information remains on the company’s website and may be downloaded and printed until at least one month after the date of the meeting called upon to decide on the draft terms of division.

In the case of a transaction treated as a division as referred to in Article 12:8, 3°, a company may participate in the division as a recipient company only where the company being divided meets the conditions required to become a partner or shareholder in the recipient company.

On expiry of the period referred to in Article 12:126, first subparagraph, without prejudice to the special provisions laid down in this Article and subject to more stringent provisions of the articles of association, the general meeting decides on the division of the company in compliance with the following quorum and majority rules:

1° those attending or represented at the meeting must represent not only at least half of the capital or, where the company has no capital, half of the total number of shares or units issued, but also half of the number of profit-sharing certificates, if any. If this condition is not met, a new convening notice is required. The second meeting may validly deliberate and decide, whatever the number of shares or profit-sharing certificates present or represented;

2° draft terms of cross-border division are adopted only if they obtain three quarters of the votes, abstentions being disregarded in both the numerator and the denominator.

Notwithstanding any provision to the contrary in the articles of association, the profit-sharing certificates of a company being divided carry one vote per security in this vote. They may not, in aggregate, be allotted a number of votes exceeding half of the number allotted to all the shares, nor be counted in the vote for a number of votes exceeding two thirds of the number of votes cast by the shares. If the votes subject to the limitation are cast in different directions, the reduction is made proportionally; fractions of votes are disregarded.

In the case of a cross-border division by acquisition, the general meeting of the company being divided need not give its approval if the recipient companies together hold all the shares, units and profit-sharing certificates of the company being divided and all the other securities conferring voting rights at the general meeting of the company being divided, and if the following conditions are met:

1° the filing prescribed by Article 12:124 takes place for each of the companies participating in the division at least three months before the division takes effect;

2° each partner or shareholder of the companies participating in the division is entitled, at least three months before the division takes effect, to inspect the documents mentioned in Article 12:129, § 2, first subparagraph, at the company’s registered office. The exceptions referred to in Article 12:127, fourth subparagraph, Article 12:128, § 2, and Article 12:129, §§ 2, 3 and 4, continue to apply;

3° the information referred to in Article 12:63 covers all changes in the assets and liabilities since the date on which the draft terms of division were drawn up.

In that case, the management body of the company being divided decides on the approval of the division on expiry of the period referred to in Article 12:126, first subparagraph.

One or more holders of shares and/or profit-sharing certificates of the company being divided who hold 5% of the units or shares and profit-sharing certificates issued or who, in a public limited company or a European company, represent 5% of the subscribed capital nevertheless have the right to have the general meeting of that company convened to decide on the draft terms of division.

If there are several classes of shares or securities, whether or not representing the stated capital, and if the cross-border division entails a change in their respective rights, Article 5:102, third subparagraph, Article 6:87, third subparagraph, or Article 7:155, third subparagraph, applies by analogy. However, the general meeting may validly deliberate and decide only if, in each class, it meets the quorum and majority requirements laid down in paragraph 1.

By way of derogation from paragraphs 1 to 3, the consent of all the partners and shareholders is required:

1° in general partnerships;

2° in the company being divided where at least one of the recipient or new companies is:

a) a general partnership;

b) a limited partnership.

In the cases referred to in the first subparagraph, 2°, the unanimous consent of the holders of units not representing the share capital is, where applicable, required.

The consent of a partner or shareholder of a Belgian company who has or will have unlimited liability for the debts of a company participating in the cross-border division is always required.

In a limited partnership, the consent of all the general partners is also required.

Where the draft terms of division provide that the shares or units of the recipient or new companies will not be allotted to the partners or shareholders of the company being divided in proportion to their rights in the capital of the company being divided or, where the company has no capital, to their share in the equity, the decision of the company being divided to participate in the division is taken by the general meeting acting unanimously.

The general meeting or, in the case referred to in paragraph 2, the management body may make the implementation of the cross-border division conditional on its express ratification of the arrangements decided on for employee participation in the new companies.

Note. In § 2, first subparagraph, 1°, the reference to Article 12:124 appears to be an error: Article 12:124 governs the drawing up and content of the draft terms of cross-border division, while their filing is prescribed by Article 12:125, § 1. The parallel merger provision, Article 12:116, § 2, 1°, refers to the filing Article (Article 12:112). The reference is reproduced as it stands in the official text.

In the case of a transaction treated as a division as referred to in Article 12:8, 3°, Article 12:71 does not apply.

In each company participating in the division, the minutes of the general meeting or, in the case referred to in Article 12:131, § 2, of the management body deciding on the division are drawn up as a notarial deed by the notary designated in the draft terms of division referred to in Article 12:124.

That notarial deed reproduces, where applicable, the conclusions of the report drawn up by the statutory auditor, the registered auditor or the certified external accountant.

In the case of a cross-border division by acquisition, the general meeting of a recipient company adopts, immediately after the decision to participate in the division, any amendments to its articles of association, including provisions that would change its object, subject to the quorum and majority requirements laid down in this Code. Failing this, the decision on the cross-border division has no effect.

In the case of a cross-border division by formation of new companies, immediately after the decision on the cross-border division, the draft deed of incorporation and the articles of association of each of the new companies are approved by the general meeting of the company being divided, subject to the same quorum and majority requirements as those required for a decision on a cross-border division. Failing this, the decision on the cross-border division has no effect.

Subject to the arrangements laid down in paragraph 2, the deed recording the decision on the division taken by the general meeting or, in the case referred to in Article 12:131, § 2, by the management body of the company being divided and, in the case of a cross-border division by acquisition, by the recipient companies, is filed and published by extract in accordance with Articles 2:8 and 2:14, 1°.

In the case of a cross-border division by acquisition, the deeds amending the articles of association of a recipient company are, where applicable, filed and published in accordance with Articles 2:8 and 2:14, 1°.

The deed and the extracts of deeds referred to in paragraph 1 are published simultaneously within ten days of the filing of the deed recording the decision on the cross-border division taken by the general meeting or, in the case referred to in Article 12:131, § 2, by the management body of the company being divided.

A recipient company may itself carry out the publication formalities concerning the company being divided.

Any holder of shares or profit-sharing certificates who acquires shares in a recipient company that is not governed by Belgian law, who voted against the draft terms of cross-border division at the general meeting of the company being divided and notified the company of this before the vote, where applicable at the e-mail address stated in the draft terms of division or at the e-mail address referred to in Article 2:31, has the right to resign (démission) from the company if and in so far as he or she exercises that right at the general meeting that decides to carry out a cross-border division.

The resignation entitles the holder to repayment of the security at a value equivalent to the value of the security stated in the draft terms of division referred to in Article 12:124, second subparagraph, 15°.

Payment of that withdrawal share may be made only after the company has satisfied the creditors who asserted their rights within the three-month period referred to in Article 12:126, first subparagraph, unless an enforceable court decision has rejected their claims to obtain a guarantee, but may not take place later than two months after the date on which the cross-border division takes effect in accordance with the applicable legal provisions.

Articles 5:142, 5:143, 6:115, 6:116 and 7:212 do not apply.

Nor do Articles 5:145, 5:154, 6:120 and 7:215 apply.

Without prejudice to Article 12:17, the recipient companies remain jointly and severally liable to pay for the security. That liability is limited to the net assets allocated to each of those companies.

In the case of a transaction treated as a division, the company being divided is regarded as a recipient company for the purposes of paragraph 1, sixth subparagraph, the liability of the company being divided being limited to the net assets it retains.

A holder of shares or profit-sharing certificates who voted against the draft terms of cross-border division at the general meeting in the manner provided for in the first subparagraph and who is not satisfied with the cash compensation (soulte en espèces) offered in Article 12:124, second subparagraph, 15°, may bring the dispute before the president of the enterprise court of the registered office of the company being divided, sitting in summary proceedings, within one month of the date of the general meeting called to decide on the cross-border division. That dispute does not release the company from paying the cash compensation offered, referred to in Article 12:124, second subparagraph, 15°, within the limits laid down in the third subparagraph.

Repayment may also be made by the recipient companies.

The shares of the resigning partner or shareholder are cancelled at the time the cross-border division takes effect in accordance with the applicable legal provisions.

Each partner or shareholder who has not exercised the right of resignation referred to in paragraph 1, who, at the latest at the general meeting, indicated that he or she is not satisfied with the exchange of units or shares proposed in Article 12:124, second subparagraph, 5°, and who voted against the draft terms of cross-border division at the general meeting of the company being divided and had this recorded as such in the minutes of the general meeting, may apply to the president of the enterprise court of the registered office of the company being divided, ruling in summary proceedings, for a cash payment within thirty days of the date of the general meeting called to decide on the cross-border division.

With the consent of the partner or shareholder, the cash payment referred to in the first subparagraph may be replaced by an allotment of shares or by other consideration in kind.

In the case of a transaction treated as a division referred to in Article 12:8, 2° and 3°, this Article does not apply.

Note. In § 1, second and eighth subparagraphs, the references to Article 12:124, second subparagraph, 15°, appear to be an error: 15° concerns the allocation of shares and other securities among the partners or shareholders of the company being divided, while the cash compensation offered to dissenting holders is described in 16°, which refers back to Article 12:137, § 1. The parallel merger provision, Article 12:116/1, § 1, refers to the corresponding point, Article 12:111, second subparagraph, 13°. The same incorrect reference appears in Article 12:128, § 1, second subparagraph. The references are reproduced as they stand in the official text.

The notary referred to in Article 12:133 must verify and certify the existence and the legality, both internal and external, of the acts and formalities incumbent on the company for which he or she officiates. To that end, he or she issues without delay, and at the latest within two months of the date of receipt of the documents and information referred to in the second subparagraph, a certificate conclusively attesting the proper completion of the acts and formalities preceding the cross-border division.

In the case of a cross-border division by acquisition, each company participating in the division that is governed by Belgian law or, in the case of a division by formation of new companies, the company being divided that is governed by Belgian law attaches the following documents to its application to the notary referred to in the first subparagraph for the pre-division certificate, in so far as those documents have not previously been sent to the notary:

1° the draft terms of cross-border division;

2° where applicable, the report and the attached opinion referred to in Article 12:127, and the report referred to in Article 12:128;

3° all comments submitted in accordance with Article 12:125, § 1, first subparagraph, 2°;

4° information on the approval referred to in Article 12:130 by the general meeting or, in the case referred to in Article 12:131, § 2, by the management body;

5° information on the number of employees at the time the draft terms of cross-border division were drawn up;

6° information on the existence of subsidiaries and their geographical location;

7° a certificate issued by the administration of the Federal Public Service Finance responsible for the collection and recovery of tax and non-tax claims, showing whether any sums are owed by the company in respect of tax and non-tax claims whose collection and recovery are handled by that administration, a certificate issued by the contribution collection bodies stating whether social security contributions, contribution surcharges and late-payment interest are owed by the company, and a certificate issued by the contribution collection bodies stating whether claims referred to in Article 16bis of Royal Decree No 38 of 27 July 1967 organising the social status of self-employed persons are owed by the company; those certificates are issued within thirty days of the submission of the application and may not be more than thirty days old when they are sent to the notary. The King may determine the requirements that this certificate must meet.

That application may be submitted by ordinary post or by e-mail.

The notary referred to in the first subparagraph verifies:

1° whether the draft terms of cross-border division contain information on the procedures by which, in accordance with collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022, the arrangements for employee participation are determined, and on the possible options for those arrangements;

2° the documents referred to in the second subparagraph;

3° where applicable, a statement by the company that the procedure referred to in collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022, has been initiated.

If the notary finds that the acts and formalities preceding the cross-border division have not been completed or that the creditors claiming additional security or any other guarantee in court in accordance with Article 12:126 have not obtained satisfaction, unless an enforceable court decision has rejected their claims, he or she does not issue the pre-division certificate and informs the company of the reasons for that decision. In that case, the notary may grant a period for regularisation of no more than two months.

If the notary finds that a cross-border division has been carried out for abusive or fraudulent purposes leading to or aimed at the evasion or circumvention of Union or national law, or for criminal purposes, he or she does not issue the pre-division certificate. In that assessment, the notary must take into account all relevant facts and circumstances of which he or she has become aware – as indicative factors, if relevant and not taken in isolation – in the course of the scrutiny referred to in the first subparagraph, in particular through consultation of the public authorities referred to in the second subparagraph, 7°.

The period referred to in the first subparagraph may be extended by no more than two months so that the notary can take into account additional information or carry out additional investigations.

If the notary considers that, owing to the complexity of the cross-border procedure, the certificate cannot be issued within the periods mentioned in the first and seventh subparagraphs, he or she informs the company of the reasons for the delay before those periods expire.

For the purposes of the scrutiny referred to in the first subparagraph, the notary may request the necessary information from the company and from any relevant public authority and may also call on an independent expert.

The certificate referred to in the first subparagraph is filed and published in accordance with Articles 2:8 and 2:14, 1°.

Where the company being divided is a Belgian private limited liability company, cooperative company or public limited company and all the new companies have one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the management service of the Crossroads Bank for Enterprises transmits the certificate referred to in the first subparagraph, together with the related data mentioned in Commission Implementing Regulation (EU) 2021/1042 of 18 June 2021 laying down rules for the application of Directive (EU) 2017/1132 of the European Parliament and of the Council as regards technical specifications and procedures for the system of interconnection of registers and repealing Commission Implementing Regulation (EU) 2020/2244, through the European system of interconnection of registers referred to in Article 22 of that Directive and after they have been made available from the file referred to in Article 2:7, to the registers of the Member States of the new companies, with a view to making them available to the public.

Note. In the second subparagraph, 4°, the reference to Article 12:130 appears to be an error: Article 12:130 concerns participation as a recipient company in a transaction treated as a division, while the approval of the division by the general meeting or, in the case referred to in Article 12:131, § 2, by the management body is governed by Article 12:131. The parallel merger provision, Article 12:117, second subparagraph, 4°, refers to the approval Article (Article 12:116). The reference is reproduced as it stands in the official text.

In the case of a cross-border division by formation of new companies, each of the new companies governed by Belgian law is subject, as regards its formation and subject to paragraphs 2 and 3, to all the conditions laid down in this Code for the form of company chosen. Articles 5:4, 6:5 and 7:3 do not apply.

Whatever the form of the new company, its formation must be recorded in a notarial deed. That deed reproduces, where applicable, the conclusions of the report referred to in Article 12:128 of the statutory auditor, the registered auditor or the certified external accountant. Where applicable, the notary must also check that the arrangements for employee participation have been formally determined in accordance with collective labour agreement No 94 of 29 April 2008, as amended by collective labour agreement No 94/1 of 20 December 2022.

Where the company being divided is governed by foreign law, it presents to the notary executing the deed referred to in the first subparagraph a copy of the draft terms of cross-border division approved by the competent body, together with documents showing that it has complied with the foreign requirements applicable in the matter.

As regards a company being divided that has one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the notary consults the pre-division certificate, which he or she accepts as conclusive evidence that the applicable foreign requirements have been complied with.

The certificate is sent by the management service of the Crossroads Bank for Enterprises, after receipt through the European system of interconnection of registers referred to in Article 22 of that Directive, to an electronic database system which forms part of the file of the legal person and is managed by the Royal Federation of Belgian Notaries (FEDNOT).

Where a report has been drawn up in accordance with Article 12:128, Articles 7:7, 7:12, 7:13, second subparagraph, second sentence, and 7:14, first subparagraph, 2° and 7°, do not apply to the public limited company, the European company and the European cooperative society resulting from the cross-border division by formation of new companies.

Where a report has been drawn up in accordance with Article 12:128, Articles 5:7, 5:9 and 5:12, first subparagraph, 2° and 5°, do not apply to the private limited liability company resulting from the cross-border division by formation of new companies.

Where a report has been drawn up in accordance with Article 12:128, Articles 6:8, 6:10 and 6:13, first subparagraph, 2° and 5°, do not apply to the cooperative company resulting from the cross-border division by formation of new companies.

Articles 2:7, 2:8, 2:12, § 1, first subparagraph, and 2:13 apply to the deed of incorporation of each new company governed by Belgian law.

Where the cross-border division by formation of new companies involves only companies having one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 and at least one of the new companies is a Belgian private limited liability company, cooperative company or public limited company, the management service of the Crossroads Bank for Enterprises notifies the register of the Member State of the company being divided, through the European system of interconnection of registers referred to in Article 22 of that Directive, of the registration of that new company in the Belgian register of legal persons.

Where the company being divided is a Belgian private limited liability company, cooperative company or public limited company and all the new companies are companies having one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the management service of the Crossroads Bank for Enterprises, after receiving, through the aforementioned system of interconnection of registers, the notifications from the registers of the Member States of the new companies, removes the registration of the company being divided from the Belgian register of legal persons, if that company ceases to exist as a result of the division.

The management service of the Crossroads Bank for Enterprises publishes the removal in accordance with Article 2:14, 1°, transmits it to the European system of interconnection of registers referred to in Article 22 of that Directive with a view to making it available to the public, and amends the data recorded in the Belgian register of legal persons.

If one or more of the new companies are governed by Belgian law, the division by formation of new companies takes effect provided that the new companies have been formed in accordance with the law applicable to them, and at the earliest on the date on which the officiating notary has recorded the completion of the division at the request of the company being divided, on presentation of the certificates and other documents evidencing the transaction and the formation. To that end, the competent foreign authorities of the company or companies governed by foreign law issue a certificate attesting the proper completion of the acts and formalities preceding the division and, where applicable, the formation, in accordance with the law applicable to those companies.

The deed of the officiating notary is filed and published by extract in accordance with Articles 2:8 and 2:14, 1°.

Where all the foreign companies concerned have one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the company being divided is a foreign company and at least one of the new companies is a Belgian private limited liability company, cooperative company or public limited company, the management service of the Crossroads Bank for Enterprises publishes in accordance with Article 2:14, 1°, the notification, received through the European system of interconnection of registers referred to in Article 22 of that Directive, that the cross-border division by formation of new companies has taken effect.

If only the company being divided is governed by Belgian law, the law applicable to the new companies determines the time at which the division takes effect. However, the division by formation of new companies takes effect only if the officiating notary has issued the certificate mentioned in Article 12:138.

The registration in the Belgian register of legal persons may be removed no earlier than on receipt by the competent foreign authorities of evidence that the division has taken effect. The management body of the company being divided publishes that removal in the annexes to the Belgian Official Gazette.

By way of derogation from paragraphs 1 and 2, if the company being divided is a Belgian private limited liability company, cooperative company or public limited company and all the new companies have one of the forms listed in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017, the cross-border division by formation of new companies takes effect on the date on which the management service of the Crossroads Bank for Enterprises has received all the communications referred to in Article 12:139, § 6, provided that the deed referred to in Article 133 has been executed and the certificate referred to in Article 138 has been issued.

The management service of the Crossroads Bank for Enterprises transmits the fact that the cross-border division referred to in the first subparagraph has taken effect to the registers of the Member States of the new companies through the European system of interconnection of registers referred to in Article 22 of Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017.

Note. In § 3, first subparagraph, the references to “Article 133” and “Article 138” omit the Book number: Articles 12:133 (notarial deed recording the division decision) and 12:138 (pre-division certificate) are evidently meant. The references are reproduced as they stand in the official text.

If one or more of the recipient companies are governed by Belgian law, the cross-border division by acquisition takes effect provided that the companies concerned have adopted concurring decisions in accordance with the law applicable to them, and at the earliest on the date on which the officiating notary records the completion of the division at the request of the companies participating in the division by acquisition, on presentation of the certificates and other documents evidencing the transaction. To that end, the competent foreign authorities of the company or companies governed by foreign law issue a certificate conclusively attesting the proper completion of the acts and formalities preceding the division in accordance with the law governing those companies.

The deed of the officiating notary is filed and published by extract in accordance with Articles 2:8 and 2:14, 1°.

If only the company being divided is governed by Belgian law, the law governing the recipient companies determines the time at which the cross-border division by acquisition takes effect. However, the cross-border division by acquisition takes effect only if the companies concerned have adopted concurring decisions and the officiating notary has issued the certificate mentioned in Article 12:135.

The registration in the Belgian register of legal persons may be removed no earlier than on receipt by the competent foreign authorities of evidence that the division has taken effect. The management body of the company being divided publishes that removal in the annexes to the Belgian Official Gazette.

Note. In § 2, first subparagraph, the reference to Article 12:135 appears to be an error: Article 12:135 concerns the approval of the deeds of incorporation of the new companies in a division by formation of new companies, while the certificate issued by the notary is the pre-division certificate under Article 12:138, to which the parallel provision for a division by formation of new companies (Article 12:140, § 2) correctly refers. The reference is reproduced as it stands in the official text.