Cross-Border Company Mobility in Belgium: What the Law of 25 May 2023 Changes

Key takeaways

• The law of 25 May 2023 (NUMAC 2023042154), published in the Belgian Official Gazette on 6 June 2023, provides for the first time a unified framework for cross-border company mobility in Belgian law.
• Three operations are now governed by the Code of Companies and Associations: cross-border transformation, cross-border merger and cross-border division, including a novel mechanism, the demerger by separation.
• The common plan must be published at least 3 months before the general meeting; creditors have a 3-month opposition period from publication in the Belgian Official Gazette.
• The Belgian notary issues the preliminary certificate within 2 months and must refuse it if the operation is designed for fraudulent or EU-law-evasion purposes.
• Belgium transposed Directive (EU) 2019/2121 several months late, missing the 31 January 2023 deadline set by the European text.

Cross-border company mobility in Belgium now has a complete and unified legal framework following the law of 25 May 2023, published in the Belgian Official Gazette on 6 June 2023 (NUMAC 2023042154) and in force since 16 June 2023. This law substantially amends the Code of Companies and Associations (CSA) to transpose Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019, on cross-border conversions, mergers and divisions. A complementary law of 18 December 2023, published on 29 December 2023, organises worker participation in companies resulting from these operations.

For directors of Belgian SRL, SA or cooperative companies considering European expansion or international restructuring, this guide covers what the law changes in practice: the three operations now governed by the CSA, the procedure to follow, the notary's role, and shareholder and creditor rights.

Cross-Border Company Mobility in Belgium: the Legal Framework

Before the law of 25 May 2023, Belgian law contained no unified procedure for restructurings involving companies from multiple EU member states. Cross-border mergers relied on a partial framework inherited from Directive 2005/56/EC; cross-border transformations had no dedicated national procedure. Directive (EU) 2019/2121 required member states to adopt a harmonised framework covering all three operations, with strengthened protection for minority shareholders, creditors and workers.

Belgium was required to transpose this text by 31 January 2023. The main law was published several months late, on 6 June 2023. The law of 18 December 2023 completes the framework for worker participation in entities resulting from cross-border operations. The Royal Decree of 26 November 2023, published in the Belgian Official Gazette on 11 December 2023, sets out the applicable accounting treatments for the new forms of restructuring introduced.

The Three Cross-Border Restructuring Operations

The law of 25 May 2023 organises three distinct types of operation in the CSA, each with its own title and provisions.

	Cross-border transformation	Cross-border merger	Cross-border division
CSA articles	Art. 14:15-14:30	Art. 12:106-12:119	Art. 12:120-12:141
Prior dissolution required
Legal personality continuity
Change of applicable law
Novel mechanism in Belgian law

The cross-border transformation (art. 14:15 to 14:30 CSA) allows a Belgian company to adopt the legal form of another EU member state, or a foreign company to adopt a Belgian form, without dissolution or liquidation. Legal personality, rights and obligations are fully maintained. This operation involves a change in the law governing the company.

The cross-border merger (art. 12:106 to 12:119 CSA) organises the absorption of a Belgian company by a company governed by the law of another member state, or vice versa, with universal transfer of assets and liabilities. A simplified procedure applies to mergers between sister companies wholly owned by the same parent (art. 12:7, 2° CSA): no new share issuance, no management report and no expert report are required.

The Demerger by Separation: a Novel Mechanism in Belgian Law

The cross-border division (art. 12:120 to 12:141 CSA) is the most innovative contribution of the reform. It encompasses the standard division (assets split among entities in different member states) and, above all, a mechanism entirely absent from Belgian law before June 2023: the demerger by separation (art. 12:8, 3° CSA).

Its operation differs from the standard division on one decisive point: a Belgian company transfers part of its assets to a newly incorporated company in another member state, but the shares of that new entity are allocated to the demerging company itself, not to its shareholders. The new company thereby becomes a 100% subsidiary of the original company, whose shareholding structure remains intact.

This mechanism offers a practical alternative to setting up a subsidiary from scratch in another member state: it allows identified assets to be placed there while keeping the Belgian parent company in its current form. For groups wishing to organise activities in other EU countries without diluting their shareholding or creating an empty entity, this is a new tool whose usefulness extends well beyond purely defensive restructurings.

The Procedure: from the Common Plan to the Notarial Deed

Whatever the operation, the procedure follows an identical sequence of statutory deadlines, structured around the filing of the common plan.

1. 1

   Drafting and filing the common plan

   D - 90 minimum

   The management bodies draft a common restructuring plan, filed with the clerk of the enterprise court and published in the Belgian Official Gazette. The plan must remain accessible on the company's website for at least 3 months before the general meeting date.

2. 2

   Informing and consulting workers

   D - 42 minimum

   Employee representatives are informed and consulted at least 6 weeks before the date of the general meeting. The negotiation procedures on worker participation are organised by the law of 18 December 2023.

3. 3

   Creditor opposition period

   3 months from publication

   Creditors whose claim predates the publication of the plan have 3 months to oppose it before the enterprise court. An upheld opposition suspends the operation until sufficient guarantees are provided or the debt is repaid.

4. 4

   General meeting and vote

   After the 3-month period

   The general meeting decides on the operation. A majority of 75% of validly cast votes is required, with a quorum of at least 50% of the capital and 50% of profit-sharing interests being present or represented.

5. 5

   Notarial certificate and final deed

   Within 2 months

   The Belgian notary issues the preliminary certificate within 2 months of receiving the complete file. This certificate attests to the internal and external legality of all acts and formalities completed on the Belgian side. The notarial deed completing the operation is then executed.

The Belgian Notary at the Centre of Legality Control

The law of 25 May 2023 gives the Belgian notary a strengthened supervisory role, directly derived from the requirements of Directive 2019/2121.

The preliminary certificate is not a mere administrative formality. The notary verifies the internal and external legality of all acts and formalities completed on the Belgian side: regularity of the general meeting vote, compliance with creditor opposition rights, conformity of worker participation procedures, and presence of tax and social-contribution clearance certificates dated less than 30 days before the filing.

The directive also requires an anti-abuse check that the law reproduces in full: the notary must refuse to issue the certificate if the operation is structured for fraudulent purposes, in breach of EU law, or for criminal ends. This refusal may be challenged on appeal but constitutes effective protection against arrangements designed, for example, to circumvent employment obligations in the country of origin.

Once the certificate is issued, the Crossroads Bank for Enterprises (CBE/KBO) acts as the Belgian node in the European Business Registers Interconnection System (BRIS). It transmits data on the company concerned to the foreign registers involved and manages notifications for companies immigrating into Belgium from another member state.

Shareholder Rights and Creditor Protection

The law provides two distinct protection mechanisms for minority shareholders and creditors.

Shareholders who voted against the operation at the general meeting have a withdrawal right: they may request that their shares be bought back at a price corresponding to the actual value of the company. Payment must be made within 2 months of the date on which the operation takes legal effect.

For creditors, the 3-month opposition right is the principal mechanism. If the enterprise court upholds the opposition, the operation is suspended until the company provides sufficient guarantees or repays the disputed claim.

For Belgian companies planning European expansion, setting up a company in Belgium may precede a cross-border operation. For SRL companies wishing to move their registered office abroad, the cross-border transfer of a Belgian company's registered office remains the most direct route.

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Further reading

• Cross-border transfer of a Belgian company's registered office: the steps for moving your registered office out of Belgium, before or after the reform of 25 May 2023
• Dissolution and liquidation of an SRL in Belgium: when cross-border mobility is preferable to dissolution
• The full text of Directive (EU) 2019/2121 is available on EUR-Lex; the law of 25 May 2023 (NUMAC 2023042154) is published on the Belgian Official Gazette portal