BELGIUM Law and Practice Contributed by: Valerijus Ostrovskis, Bogdan Evtimov, Michael De Boeck and Coline Cauvin, ACQUIS
• having appointed – solely as a result of the exer - cise of one’s voting rights – a majority of the members of the administrative, management or supervisory bodies of a legal person or entity who have held office during the present and previous financial year; • controlling alone – pursuant to an agreement with other shareholders in or members of a legal person or entity – a majority of shareholders’ or members’ voting rights in that legal person or entity; • having the right to exercise a dominant influence over a legal person or entity – pursuant to an agreement entered into with that legal person or entity or pursuant to a provision in its memoran - dum or articles of association – where the law gov - erning that legal person or entity permits its being subject to such agreement or provision; • having the power to exercise the right to exercise a dominant influence referred to in the preceding point, without being the holder of that right; • having the right to use all or part of the assets of a legal person or entity; • managing the business of a legal person or entity on a unified basis, while publishing consolidated accounts; and • sharing jointly and severally the financial liabilities of a legal person or entity, or guaranteeing them. If any of these criteria are satisfied, it is considered that the legal person or entity is controlled by a des - ignated person or entity, unless the contrary can be established on a case-by-case basis. It should be noted that slight grammatical discrepan - cies between the English and Dutch versions of pro - visions in Council Regulation (EU) No 269/2014 have been known to cause confusion in (particularly lower) domestic courts relating to the interpretation of these “owned or controlled” rules. The Dutch language version of Article 2 (2) of Coun - cil Regulation (EU) No 269/2014 refers to verbonden ondernemingen (“connected enterprises”), which is a defined term in the Belgian Code on Companies and Associations. The Belgian Code on Companies and Associations distinguishes between various types of company relations, including “enterprises connected to” and “enterprises associated with”. Connected
enterprises are those sets of enterprises that are con - trolled by, or exercise control over, that other company or with whom those companies are in a consortium. The Belgian Code on Companies and Associations also defines control as the “de facto or legal power to exercise a decisive influence on the appointment of the majority of its directors or on the direction of its management”. Control is irrefutably presumed by law if it results from: • the holding of the majority of the shares in a com - pany; • the right to appoint or terminate the mandate of a majority of the directors or managers; • controlling power organised by the company stat - utes; or • agreements concluded with the sanctioned share - holder or with other shareholders. Assessing whether a sanctioned person or entity has a power of control over an entity through shareholder participation must cumulate the percentage in par - ticipations through several shareholders to take into account the consolidated power of control resulting from different participations. By contrast, the French-language version of Article 2 (2) of Council Regulation (EU) No 269/2014 refers to the word associé (“associated with”). Under Article 1:21 of the Belgian Code on Companies and Asso - ciations, an associated company may be interpreted as any entity linked to the other by virtue of a notable or significant (but not “decisive” and thus “control - ling”) influence in the other company. This influence is presumed, albeit rebuttably, if a 20% shareholding is held. The difference between these equally authoritative versions in the official languages of Belgium has been known to cause some confusion – particularly in courts with less experience of the application of sanctions – when it comes to how to interpret these rules. However, it should be stressed that these terms relating to ownership or control by a directly sanc - tioned entity in EU regulations should be interpreted autonomously and uniformly throughout the EU mem - ber states. Provisions of an EU regulation must be
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