Key takeaways
- Under the CAC, an SRL's former "managers" now carry the legal name of directors; a board of directors exists as a collegial body only if the articles of association organise it explicitly (art. 5:70 CAC).
- The minutes must identify the directors present, summarise the deliberations and record each decision taken, with particular attention to conflict-of-interest declarations (art. 5:76 CAC).
- A decision can be taken in writing without a physical meeting, but only with the unanimous agreement of the board's directors (art. 5:75 CAC).
- The minutes are, in principle, not published: they remain an internal document kept in a register, except for decisions themselves subject to publicity (appointment, termination of a mandate).
- In a dispute, it is the minutes that prove the legal procedure was followed: their absence or imprecision weakens the defence of the company and its directors.
A Belgian SRL director who neglects to keep minutes often discovers the problem at the worst moment: a tax audit disputing a form of remuneration, a shareholder challenging a decision, or a dispute requiring proof that a conflict-of-interest procedure was properly followed. The minutes of an SRL's board of directors are nonetheless precisely framed by the Companies and Associations Code (CAC), in force since 1 May 2019 for new companies and since 1 January 2020 for pre-existing ones. This guide details what this document must contain, who signs it, and what value it has before a third party or a judge.
From "manager" to "director": who sits on an SRL's board of directors
The CAC changed the SRL's terminology: the body that used to run the company under the name "management" now carries the legal name of administrative body, and its members are directors (art. 5:70 CAC). The articles of association determine the management model chosen among three possible regimes: a sole director, several directors each holding an individual, concurrent power, or a collegial administrative body, commonly called a "board of directors" by analogy with the public limited company, even though the CAC does not formally give it that name for the SRL.
It is only in this third case, when the articles expressly organise collegiality, that the directors deliberate at a meeting and the formalism of the minutes becomes meaningful: it records what was said and decided at a meeting attended by several people.
What the minutes must mandatorily contain
The CAC does not impose a standard template, but practice and related legal obligations (in particular on conflicts of interest) outline a minimum content that the articles of association generally supplement.
Elements to include in every set of minutes
Date, time and place of the meeting
Or the arrangements for remote participation if the meeting is held by videoconference, where the articles allow it.
Identity of directors present, represented or absent
Needed to verify that any statutory quorum is reached.
Summary of the deliberations
The points discussed and the arguments exchanged, in enough detail to reconstruct the reasoning followed if reviewed later.
The precise text of each decision taken
Worded unambiguously, in particular for decisions delegating powers or day-to-day management (art. 5:79 CAC).
Conflict-of-interest declarations
The nature of the opposing interest declared by a director and the justification for it must appear in the minutes of the meeting of the other directors (art. 5:76 CAC).
Signature of the chair, and of any other directors who wish to sign
Default rule under art. 5:75 CAC; copies given to third parties must be signed by a director holding representation power.
The special case of conflicts of interest
The SRL's conflict-of-interest regime (art. 5:76 and 5:77 CAC) has applied since 1 January 2020 to all SRLs, whether or not they had adapted their articles to the CAC by that date. Beyond the declaration recorded in the minutes, article 5:77 CAC requires, as soon as a decision or transaction falls under article 5:76 (no monetary threshold applies), that a report describe the nature of that decision and its financial consequences for the company. This report must be included in the company's management report where it is required to produce one, or filed with the annual accounts, and communicated to the auditor if the company has appointed one.
Failure to follow this procedure is not a mere formal irregularity: art. 5:77, §2 CAC allows the company to seek the nullity of the decision or transaction concluded in breach of the rule, if the other party knew or should have known of the breach, without prejudice to the separate rights that art. 2:44 and 2:46 CAC reserve to certain persons. The director concerned also remains personally and jointly liable, towards the company as well as towards third parties, for the resulting harm (art. 5:78 CAC).
Deciding without a physical meeting: the written procedure
The CAC allows a collegial administrative body to take a decision without meeting physically, by written decision, provided all the directors of the board agree on the text of the decision (art. 5:75 CAC). The text of the article does not make this procedure conditional on any urgency.
| Physical or remote meeting | Written decision (art. 5:75 CAC) | |
|---|---|---|
| Majority condition | Majority of votes cast, unless the articles provide otherwise | Unanimous agreement of all the board's directors |
| Urgency condition | ||
| Minutes required | ||
| Usable if a director refuses | Not applicable |
If a single director on the board objects to the written procedure or refuses to take a position, the written decision cannot proceed: a meeting must be organised following the usual statutory arrangements.
Structure your SRL's governance
Monsiegesocial supports SRL directors in drafting their minutes, managing conflicts of interest and bringing their governance into compliance.
Keeping and evidentiary value of the minutes
The minutes of a meeting of the administrative body are, in principle, not published in the Moniteur belge: they are an internal document, to be kept in a register accessible to the directors and, where relevant, to the auditor. Only decisions themselves subject to legal publicity, such as the appointment or termination of a director's mandate, are filed with the registry of the competent enterprise court (via a notary or an authorised business counter) and published in the annexes to the Moniteur belge, with the company's file updated accordingly at the Crossroads Bank for Enterprises, independently of the minutes that recorded the decision.
It is precisely this internal character that makes the minutes the reference document in the event of a dispute: they prove who decided what, on what date, and under what conditions. A tax audit disputing the deductibility of a director's remuneration, a shareholder challenging the regularity of a delegation of day-to-day management, or a third party invoking a breach of the conflict-of-interest procedure: in each of these cases, the absence of minutes, or their imprecision, deprives the company and its directors of the most direct means of proving their good governance.
Going further
- General meeting of an SRL in Belgium: rules and formalities: the convening, quorum and minutes rules specific to the SRL's sovereign body, to be distinguished from those of the administrative body
- SRL director liability in Belgium: the consequences of a management fault for a director who neglects their governance obligations
- Companies and Associations Code: the reference text of Belgian company law, available via the FPS Economy portal
