BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
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 com - panies (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 del - egating 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 directors to formally create a special or ad hoc committee to advise on business combinations. It is more common to set up informal specific ad hoc working groups tasked with advising and monitoring business combinations. The compo - sition and functioning of these groups are flex - ible and will depend on the specific needs of the business combination. Other 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 con - flicts of interest, this is not required under Bel - gian law. Mandatory statutory conflict of inter - est procedures require the conflicted directors to disclose their conflict and to abstain from the decision-making process (both the delibera - tion 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 transaction to the general meeting of the share - holders for their approval. However, the board of directors of a listed company is required to create a special committee for every decision or transaction of the company or its non-listed
Within the context of public takeover bids, cer - tain transactional documents should be dis - closed and published in full. The prospectus will be published upon its approval by the FSMA. If the bidder controls the target, an independ - ent expert’s report will also be published as an annexe to the prospectus. The target’s board of directors then has five working days following the approval of the prospectus to submit a draft response memorandum to the FSMA. The target should publish the response memorandum upon approval by the FSMA. Finally, the bidder should publish the results of the public takeover bid upon expiry of the acceptance period, together with the amount of the securities it holds follow - ing the completion of the bid. 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 factual (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 memoran - dum and its possible consequences regarding employment. 8. Duties of Directors 8.1 Principal Directors’ Duties
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