What is the impact of the European Mobility Directive if I want to convert, split, merge or restructure my company?

The law of 25 May 2023 transposes the European Mobility Directive (on cross-border conversions, mergers and demergers) into Belgian law. The new rules came into force on 16 June 2023 and also impact national reorganisations. 

Impact on national restructuring

Previously, a silent merger was possible only when the acquiring company owned 100% of the shares of the subsidiary. Now, this is also possible when the shares of the merging companies are (in)directly owned by one person or held in the same proportion by the same persons. 

In addition, a disproportionate partial demerger is now also possible. This means that, in the case of a partial demerger, shares in the demerged company can also be issued to the shareholders of the demerged company.

Attention: the definition of restructuring operations from the Income Tax Code (ITC) has an autonomous character. In order to defuse disputes over the tax neutrality of operations, the government is likely to align the definitions of the ITC with those of the Companies and Associations Code as soon as possible.

Impact on cross-border procedure

The main changes are:

  • Notification to shareholders, creditors and employees so they can submit comments in advance;
  • More detailed reporting, including a distinction between information intended for shareholders and for employees;
  • Extension of mandatory waiting period to 3 months between filing and execution of deed;
  • Introduction of an exit right for shareholders who disagree with the proposal. They may receive an exit allowance;
  • Stronger role for the notary public to conduct a preventive check beforehand. The notary public must provide an attestation showing that the preparation of the cross-border transaction has been carried out correctly, that creditors were satisfied, and that the transaction was not set up for unlawful, fraudulent or criminal purposes. Moreover, starting from 15 December 2023, applications for such an attestation must be accompanied by certificates showing that no debts are outstanding.

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