Key takeaways
- Cross-border transformation (CSA, Book 14, art. 14:15-14:30) allows a Belgian company to migrate to another EU member state while retaining its legal personality.
- The Law of 25 May 2023 transposed Directive (EU) 2019/2121 into Belgian law; the rules apply to projects filed from 16 June 2023.
- The decision requires a three-quarters majority of votes at an extraordinary general meeting, with a quorum of at least half the capital, after a three-month publication period.
- The Belgian notary issues a preliminary compliance certificate without which registration abroad cannot take place.
- Exit tax (art. 210, § 1, 4°, CIR 92) applies to latent capital gains and certain reserves on transfer, unless the company retains a permanent establishment in Belgium.
Relocating a Belgian company's registered office abroad is not a straightforward administrative formality. Since the Law of 25 May 2023, which transposed Directive (EU) 2019/2121 into Belgian law, cross-border registered office transfers from Belgium are governed by a specific procedure: cross-border transformation, codified in Book 14, Chapter 3 of the Code of Companies and Associations (CSA). This procedure allows a company to migrate to another EU member state without prior dissolution, while retaining its legal personality. It also involves a tax dimension that cannot be overlooked: exit tax, which applies to latent capital gains at the date of transfer. Here is what directors need to know before starting the process.
Cross-border transformation: an intra-EU mobility tool
Before the Law of 25 May 2023, Belgian law treated a cross-border registered office transfer as a dissolution followed by reconstruction, with a break in legal personality. Directive (EU) 2019/2121, adopted on 27 November 2019 and transposed by this law, changed that approach.
A Belgian BV (SRL) or NV (SA) can now adopt the legal form of another EU member state and move its registered office there without interrupting its legal existence. The company's contracts, claims, debts and rights migrate with it. The Crossroads Bank for Enterprises (CBE) only strikes the company off the Belgian register after receiving proof of registration in the foreign register: it is that deregistration that marks the legal effect of the transfer.
Prerequisites for emigration
Not all companies can use cross-border transformation. The CSA sets out several cumulative conditions that must be met before the process can begin.
Conditions to verify before starting the procedure
Destination in the European Union
The CSA's cross-border transformation procedure covers only transfers to another EU member state. A move to Switzerland, the United Kingdom or the United States follows an entirely different regime.
Compatible legal form in the host state
The company must be able to adopt a legal form recognised by the local law of the destination country. The Directive requires the host state to accept the form resulting from the transformation.
No insolvency proceedings
Emigration is prohibited if the company is subject to bankruptcy, judicial reorganisation or any other collective insolvency procedure.
Tax and social obligations in order
Before issuing its certificate, the notary verifies that the required attestations from the SPF Finances and the NSSO have been obtained. Outstanding obligations towards these administrations must be settled.
The emigration procedure, step by step
The procedure is governed by articles 14:18 to 14:27 of the CSA and unfolds in several successive phases.
- 1
Drafting the transformation project
The board of directors or manager drafts a cross-border transformation project specifying the new legal form, new company name, the registered office in the host state and the identity of the acting notary.
- 2
Filing and publication in the Belgian Official Gazette
The project is filed at the registry of the competent enterprise court and published in the Annexes of the Belgian Official Gazette. This date triggers the three-month period before the general meeting.
- 3
Board report
The board or manager drafts a report setting out the legal and economic grounds for the transaction and its impact on members, creditors and employees.
- 4
Creditor opposition period
During the 3 monthsDuring the period preceding the general meeting, creditors may oppose the transformation and request adequate guarantees. If no agreement is reached, they may apply to the enterprise court. The notarial certificate cannot be issued until their rights are settled.
- 5
Extraordinary general meeting
Month 3+The EGM takes place at the earliest three months after publication of the project. The decision is adopted by a three-quarters majority of votes, with a quorum of at least half the capital or shares present or represented. Dissenting members have withdrawal rights.
- 6
Preliminary compliance certificate from the notary
Up to 2 monthsThe Belgian notary verifies that the entire procedure has been correctly carried out and issues a preliminary compliance certificate. The notary has two months to do so. Without this certificate, registration in the foreign register is impossible.
- 7
Registration abroad and deregistration from the CBE
The company presents the Belgian notarial certificate to the host state's register for inscription. The CBE then deregisters the company from the Belgian register. The transfer takes legal effect on the date of that deregistration.
The central role of the Belgian notary
The notary acts as a legal filter in the emigration procedure. Before issuing the preliminary compliance certificate, the notary verifies that all formalities have been correctly completed and that the transaction does not serve abusive, fraudulent or criminal purposes.
Two situations block issuance of the certificate: opposing creditors have not yet obtained satisfaction or their opposition is still awaiting a final court ruling; or a procedural irregularity has been identified in the conduct of the operation.
This notarial oversight replaces the judicial review that applied before the Law of 25 May 2023. Its introduction strengthens legal certainty while simplifying the process, since a judge's involvement is no longer required outside creditor disputes.
Since 1 December 2023, two additional attestations are required (Royal Decree of 20 October 2023, amending art. 14:26 CSA): a tax certificate from the SPF Finances and a certificate from the NSSO confirming the absence of social security debts, both dated no more than thirty days before the notary issues the compliance certificate.
Exit tax and the tax consequences of the transfer
The exit tax base comprises three elements: current-year profits up to the transfer date, latent capital gains on assets (the difference between their real value and their net tax value), and certain reserves or provisions that become taxable. The total is subject to the applicable corporate tax rate: 20% for SMEs meeting the reduced-rate conditions, 25% for all others.
An important exception applies when the company retains a permanent establishment in Belgium after the transfer of registered office. Assets attributable to that establishment remain within the Belgian tax base and are not subject to exit tax immediately: they are only taxed on their effective realisation. This mechanism is consistent with EU freedom of establishment principles and the case law of the Court of Justice of the European Union.
Before initiating any procedure, consulting an accountant or tax adviser is essential to quantify the exit tax exposure and assess structural alternatives. Our teams can support this analysis through our company advisory services.
Is your company considering an international move?
Cross-border transformation requires thorough legal and tax preparation. Our experts support directors at every stage of the procedure.
Transfer to a non-EU country
For a move to Switzerland, the United Kingdom, the United States or any other country outside the EU, the CSA's cross-border transformation procedure is not available.
| Transfer to an EU state | Transfer to a non-EU country | |
|---|---|---|
| Applicable procedure | Cross-border transformation (CSA, Book 14) | Belgian dissolution + establishment abroad |
| Continuity of legal personality | ||
| Automatic transfer of contracts | ||
| Exit tax applicable | ||
| Belgian notarial involvement required |
A non-EU transfer therefore entails a break in legal personality. The Belgian company is dissolved under the procedure of article 2:71 of the CSA, its assets are realised and its debts settled, before the members establish a new entity in the destination country. Existing contracts must be renegotiated in the name of the new structure.
