One shareholder in NV and BV: it is possible, but ...

One shareholder in NV and BV: it is possible, but  ...

Since the corporate law reform of 1 May 2019 with the introduction of the Companies and Associations Code (CAC), BVs and NVs can be founded with only one shareholder. Of course they can also continue to work if they become “one-headed” during their existence. But there are procedures to be followed.

Only the BV and the NV

The CAC provides for single ownership (the possibility that there is only one shareholder) only for the BV and the NV. The other company forms (the cooperative company, the VOF, the partnership and the limited partnership) cannot be single-headed.
The sole shareholder can be a private person as well as another legal person. By the way, you may own several single-headed companies. This does not affect the limited liability of the company.

This was different under the previous scheme: if a company (NV or BVBA) became single-headed, then the sole shareholder became jointly liable for all obligations of the company that arose after the moment the company became single-headed (in case that single-shareholding lasted longer than 1 year).
Under the previous code, an NV could not be established by one shareholder. It was possible for a BVBA, but then the pay-up requirements were higher than if you were to set up a company with several people.

New rules, old obligations

The old scheme provided that the “public” had to be warned if there was only one partner left. After all, creditors who enter into an agreement with a company must nevertheless be aware of the fact that in the course of its existence the company has fallen back from several shareholders to only one shareholder and that this shareholder becomes jointly and severally liable for the obligations of the company. Hence the publication obligation.

Although the current legislation has removed all restrictions on single-headedness of NVs and BVs, there is still a publication obligation. The code explicitly states: "The fact that all shares are united in one hand, as well as the identity of the sole shareholder, must be recorded in the company file for the private limited company and the limited liability company".

This obligation was slightly amended by the repair law in the course of 2020. For the NV it was already in the code from the beginning. With the repair act, the publication is now also mandatory when all shares of a BV are united in one hand.

If the company was incorporated by one person, there is no separate publication obligation since the one-headedness is stated in the deed of incorporation. It is therefore only if the NV or BV falls back on one shareholder in the course of its existence, that a mention must be made in the company file. You can find that company file at the registry of the commercial court.

Some practical considerations

The law does not determine how much time you have to take the necessary steps. Doctrine is of the opinion that there is a 30 days period since that is also the timing which applies for the filing of the first version of the articles of association and the deed of incorporation.
Not only must it be stated in the company file that the shares are united in one hand. The filing must also be published in the annexes to the Belgian Official Journal.

If this information is not communicated to the registry of the commercial court, the board is liable for violating the provisions of the code and it becomes liable for damage to third parties. But in any case, only the (limited) capital of the company must be taken into account when calculating the damage. Ultimately, that liability is not too bad.