BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
approval by the FSMA. Finally, the bidder should pub - lish the results of the public takeover bid upon expiry of the acceptance period, together with the amount of the securities it holds following the completion of the bid.
committees, such as an audit committee, may also be involved to perform their specific role vis-à-vis the business combination. While the creation of a special committee might be recommended in the event of certain conflicts of inter - est, this is not required under Belgian law. Mandatory statutory conflict of interest procedures require the conflicted directors to disclose their conflict and to abstain from the decision-making process (both the deliberation and the vote). The remaining directors can subsequently proceed with the deliberation and decision. Should all directors be conflicted, they are required to submit the envisaged decision or trans - action to the general meeting of the shareholders for their approval. However, the board of directors of a listed company is required to create a special commit - tee for every decision or transaction of the company or its non-listed subsidiaries relating to an affiliated individual or company that is not a subsidiary. This special committee, composed of three independent directors and one or more independent experts, pre - pares a written and motivated report to advise the board of directors on the envisaged decision or trans - action. 8.3 Business Judgement Rule The Belgian (soft law) Corporate Governance Codes for listed companies (2020 Belgian Code on Corporate Governance) and non-listed companies (2020 UNIZO Code on good governance) provide that the board of directors may create specialised committees to advise on specific matters and strategic decisions, without delegating such decisions. In addition, the articles of association or internal rules of the board of directors could explicitly provide for the creation of specialised committees. It is, however, rather uncommon for a board of direc - tors to formally create a special or ad hoc commit - tee to advise on business combinations. It is more common to set up informal specific ad hoc working groups tasked with advising and monitoring busi - ness combinations. The composition and functioning of these groups are flexible and will depend on the specific needs of the business combination. Other committees, such as an audit committee, may also
8. Duties of Directors 8.1 Principal Directors’ Duties
As a general rule, directors are required to act in the best interest of the company. The interest of the company is principally determined by the collective profit interest of the current and future shareholders of the company. This remains, however, a highly fac - tual (rather than purely legal) assessment and may include (or better, overlap with) the interests of other stakeholders (such as employees or creditors). However, within the context of a takeover bid on listed shares, the target’s board of directors should take into account the (broader) overall interests of the target and its securityholders, as well as its creditors and employees, when explaining the board of directors’ position with regard to the bid in the response mem - orandum and its possible consequences regarding employment. 8.2 Special or Ad Hoc Committees The Belgian (soft law) Corporate Governance Codes for listed companies (2020 Belgian Code on Corporate Governance) and non-listed companies (2020 UNIZO Code on good governance) provide that the board of directors may create specialised committees to advise on specific matters and strategic decisions, without delegating such decisions. In addition, the articles of association or internal rules of the board of directors could explicitly provide for the creation of specialised committees. It is, however, rather uncommon for a board of direc - tors to formally create a special or ad hoc commit - tee to advise on business combinations. It is more common to set up informal specific ad hoc working groups tasked with advising and monitoring busi - ness combinations. The composition and functioning of these groups are flexible and will depend on the specific needs of the business combination. Other
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