BELGIUM Law and Practice Contributed by: Steven De Schrijver and Carl Dotremont, Allegiance Law
employer and the employee have agreed otherwise. Thus, in these particular contexts, there is a legal presumption of transfer of IP economic rights to the employer. It is up to the employee to provide evidence that the presumption does not apply – for example, because the work was not created under the employ- ment contract. 7.7 Currency Control/Central Bank Approval Currency Control The European Central Bank regulates the euro and keeps inflation under control. Central Bank Approval No central bank approval is necessary unless specific cases of M&A arise within the insurance and credit sectors. 8. Recent Legal Developments 8.1 Significant Court Decisions or Legal Developments Besides the screening of foreign investments listed in 7.3 Restrictions on Foreign Investments , there are multiple legal developments affecting the Belgium M&A landscape. New Belgian B2B Rules The Belgian Act of 4 April 2019 entered into force on 1 December 2020, and its effects are still not yet fully known. It introduced a set of rules on prohibited B2B contract clauses that apply to all B2B agree- ments, except those for financial services. It therefore includes M&A contractual arrangements. The rules include a general fairness principle, a black list of clauses that are deemed always abusive, and a grey list of clauses deemed abusive unless proven to the contrary. A clause may be deemed abusive if it creates on its own, or together with other clauses, a clear imbalance between the rights and obligations of the parties that is of a legal and not an econom- ic nature. The core clauses of agreements, such as those on price, fall outside the scope of this balance test. If a clause is deemed abusive, it will be declared null and void.
This relatively new set of rules must be taken into account when drafting M&A agreements. As there is only limited jurisprudence on them so far, it is cur- rently uncertain how strictly these provisions will be interpreted by courts. New Belgian Civil Code The New Belgian Civil Code with an updated Bel- gian contract law entered into force on 1 January 2023, thereby impacting M&A agreements. Existing templates must be reviewed with regard to their rel- evance, whether or not certain clauses may remain in force, and whether others can be changed thanks to new options under the new law. Cybersecurity The Belgian Network and Information Systems Act of 26 April 2024 (the “NIS2 Act”), which transposes the EU’s Network and Information Security (NIS) 2 Directive (the “NIS2 Directive”), came into force on 18 October 2024. Given that its text includes fines similar to those found in the EU’s General Data Protec- tion Regulation (GDPR), it may be a first step towards forcing essential and important organisations to focus more on cybersecurity. However, the most important innovation is the exten- sion of its scope. The NIS2 Act mandates 12 addi- tional sectors to implement cybersecurity risk man- agement measures and follow incident notification obligations. It enhances and streamlines security and reporting requirements by establishing a minimum list of key elements all entities must consider, including incident management, supply chain security, and vul- nerability handling and disclosure. This means that it not only applies to “critical sectors” but also to other important sectors, such as digital services and digi- tal infrastructure (telecommunications, data centres, cloud services, etc). This means that it will also become more important to review a target’s compliance with the NIS2 Act, whenever applicable, during a due diligence. Cyber- security may be the next hot topic in M&A after privacy became much more relevant in transactions.
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