Proposition 52K2211

Projet de loi modifiant le Code des sociétés et prévoyant les modalités de la société privée à responsabilité limitée Starter.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Oct. 20, 2009

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

share business start-up organisation

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA LDD MR FN VB

Contact form ¶

Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.

Discussion ¶

Nov. 19, 2009 | Plenary session (Chamber of representatives)

Full source

This is the bill amending the Company Code and establishing the modalities of the closed limited liability company Starter. It was extensively discussed in the committee responsible for the problems of Commercial Law and Economic Law.

Minister Laruelle gave an introductory presentation on the bill, which fits into the government’s SME policy, which also identified the increase of security for entrepreneurs as an important aspect.

The main objective of this draft is to weaken the radical distinction between the natural person-entrepreneur and the BBVA. The conditions relating to the minimum capital for the ordinary BBVA will be eased for the new form of company, thereby facilitating access to the BBVA. The theoretical minimum capital for this form of company is between 1 euro and the minimum capital for the classical bvba. The Minister wants to encourage the creation of companies.

Furthermore, she pointed out that this form of company also exists in several other countries. Due to the absence of this form, more and more entrepreneurs found their way to other European countries. With this bill, this evolution can be countered.

During the general discussion of the draft law, several groups have raised questions and comments.

Mr. Hamal emphasized once again that this form of company already exists in several other countries and that we therefore run the risk of the company being established abroad, while the founders would attempt to carry out their activities in Belgium through all kinds of constructions.

Mr Van Biesen correctly asked the question of how the conversion of the Starters-BVBA to the ordinary BVBA would be followed within a period of five years and what procedure should be followed in this regard. In practice, there are enough examples to show that this is not always an evidence.

The Minister referred in that framework to the Cross Point Bank of Enterprises, where all companies must be registered.

As regards the control, Mr George pointed out that 25 % of the profit should be set aside as a reserve. In that context, the Minister pointed out the mandatory assistance of professionals, who must respect a deontological code, thus creating an automatic control mechanism.

Mr Tuybens asked the question of the need for that form of company. The Minister confirmed that there is an effective demand, ⁇ because in addition to the real start-ups, also entrepreneurs who now as a natural person already carry out an independent activity can also resort to the aspects and possibilities offered by the draft law.

Ms. Smeyers asked questions about the creditworthiness of an undertaking, which, however, is linked to the capital invested. The Minister emphasized here once again the importance of the financial plan that should be drawn up with the help of an expert. This should enhance the protection for future creditors, on the one hand by confirming that the enterprise is not an empty box and on the other hand it should be a help in the first years of the enterprise to get through it properly.

Collega Gerkens argued that the guidance as stipulated in the draft law is limited to the preparation of a financial plan at the time of establishment and insisted on making it mandatory during the first five years.

In the article-by-article discussion, Article 7 was emphasized. There is the fact that the financial plan is mandatory because it would provide more guarantees. It must therefore be deposited with the notary. However, the formalities still need to be determined by KB. The plan should ⁇ not be published in the Official Gazette.

All articles separately were unanimously adopted, as well as the overall draft law.

Mr. Speaker, Mrs. Minister, dear colleagues, the text we discuss today and which is submitted to you aims to provide an effective tool for people who wish to undertake, build an activity capable of generating their own income and creating jobs. This project aims to encourage entrepreneurial spirit and initiative and thus equip future entrepreneurs with a new but already developed legal figure in our neighbors, especially in France and the Netherlands.

I would like to reiterate from the beginning the satisfaction of the MR group in the House to see such a project result and to thank and congratulate Minister Laruelle for having worked in this direction with her government colleagues so that this dossier can come before the Parliament and end in principle in a few moments.

The project comes from the finding that it is increasingly difficult for entrepreneurs – young or less young – to start their own business. Starting as a natural person engages the entire property of the person or persons concerned and, if the person or persons concerned is married, the common property of the couple according to the marriage agreements. Failure of the business, or even bankruptcy, can have disastrous consequences for the whole family.

The most effective protection for the start-up entrepreneur and his family is therefore the establishment of a limited liability company – this is the most common form – in order to continue the business without engaging the private property. However, the establishment of companies and in particular of SPRL requires significant capital contributions which are increasingly difficult to gather and therefore constitute a difficult path to pass and, therefore, a brake to new activity.

This too heavy and too compulsory requirement is found in all forms of companies under Belgian law. For example, the SPRL’s capital contribution amounts to €18,500 and must be released at a rate of 25% – therefore €6,200. This does not necessarily meet the needs of those who start their first business. In France, Germany, the Netherlands or the United Kingdom, it is permitted to create limited liability companies with a negligible minimum capital, or even in some cases without real capital.

Belgian entrepreneurs are therefore tempted to resort to these formulas of foreign law and therefore create companies in those countries and operate in Belgium through branches. However, this approach is not ideal in so far as these foreign law companies do not have a share capital worthy of this name. Belgian creditors therefore have virtually no recourse in case of bankruptcy.

Based on these findings, the bill introduces in the Company Code a new form of company, the SPRL starter or SPRLS, for which the entrepreneur will be able to choose, under certain conditions of course, the amount of the minimum capital necessary to found his company and launch his business in an economically viable way.

It is therefore possible, in extreme situations, to fix this capital to 1 euro. A maximum amount is also imposed, in this case the amount provided for a SPRL, namely 18 550 euros.

The text also wanted – this is important and the minister was sensitive to it ‑ to preserve the interests of the various parties present by limiting the possibility of using this new tool by establishing conditions designed to avoid any abuse, as well as preserving the guarantees of creditors, employees and workers in the broad sense of this new type of company.

I would like to pin down a few safeguards that are to be mentioned for the protection of third parties.

First of all, this form of company is reserved for natural persons and its titles are not transferable between living persons, as long as the company retains the privileged form of SPRLS, but to certain natural persons.

It is also reserved for entrepreneurs who employ less than five people full-time. If the entrepreneur wants to hire the equivalent of five full-time or more people, he must then convert his SPRLS to SPRL.

Furthermore, the perspective of the bill is not to encourage entrepreneurs to constitute several SPRL starters but to help those who want to launch a first business or explore new paths, to give themselves a first momentum by creating a single structure. Therefore, a system of solidary liability of the founder of all start-up SPRLs that he would constitute in the future, as well as for other SPRLs in which he would hold competitive rights of 5 % or more.

In this perspective, the possibility of using the form of start-up company is granted only temporarily. This is important to emphasize. The SPRLS shall take the status of SPRL within a maximum period of five years. As long as the processing has not taken place, SPRLS must clearly identify itself as such whenever it mentions its legal form.

Finally, it should be noted that the bill contains specific measures aimed at safeguarding the interests of potential creditors. They will retain the possibility to turn against the founder in case of bankruptcy during the first three years. Three years after the constitution of the SPRLS, the associates are liable in solidarity with the interested parties, of the difference between the 18 550 euros provided in the minimum capital of an ordinary SPRL and the amount of capital chosen in the SPRLS.

Finally, the project reinforces the obligation to have a legal reserve fund, like the German model. It opts for a mandatory reserve of 25% of the annual net profit. This obligation remains in force until the amount of the subscribed capital, added to the amount of the reserve funds, reaches the famous 18 550 euros or until the company is transformed into a true SPRL.

In conclusion, the MR group is pleased with this new measure encouraging the entrepreneurial spirit, Mrs. Minister, and supporting the independent workers, a struggle that is dear to you.

Never enough will be reminded that independent activity is the economic engine of our country. It enables the direct creation of jobs, just as it promotes the development of the indirect economic tissue organizing around it. In other words, when a self-employed starts an activity, the effects are similar to those of the cane thrown into the water: the formed circles are always wider. It can then be said that it is an entire region that takes life economically.

We will therefore vote positively on this text.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Why Why ? Because a number of economic operators do not have sufficient funds to be able to create a company in the current legal forms, i.e. a limited liability cooperative, a SPRLU or even an anonymous company.

That said, we should not make this society a kind of universal panacea. Neither should it be a mirror to the allure.

It is clear that it was essential for economic operators to be able to find an ideal legal framework. The SPRLS can effectively, for a series of them, constitute this framework, a starting framework, a provisional framework that must lead them to grow and to be able to mutate after five years and opt for another legal form since there is an obligation to reserve a part of the funds issued by the financial activity in order to be able to constitute sufficient capital.

We also know that what constitutes the essence of economic life is credit, that is, the trust that economic operators have in each other.

We also know that these small low-capital companies have a lot of difficulty starting because, with a very minimal capital of a few euros, for example, it is absorbed the same day of the constitution of the company. In fact, a accounting expert must be paid for the financial plan. Publication must be ensured. All formalities must be paid. Thus, these companies will have lost, within a few days, their entire capital.

In order to acquire raw materials the next day, to secure some advertising, commercial relations, these companies will inevitably have to resort to credit. It is at this point that problems may arise. In fact, we must keep in mind the situation of contractual, but also legal guarantees.

With regard to contractual guarantees, how many similar companies will be established, will apply for a credit from a banking body that they will be granted on the condition that the manager is guaranteed of the commitments of his company.

If this is the case, in the event of financial difficulties, these guarantees being guarantees for remuneration will be solidarily bound by the obligations of the company towards the credit institutions.

The second situation is the legal guarantees. If one of these companies fails to fulfill a series of tax obligations, through the various laws passed successively, the legal guarantees have been multiplied. Thus, the manager of a company that does not meet its VAT obligations engages his own assets.

I have drawn the attention of the Minister on this double reality, because working in confidence, without starting credit, without own funds, requires the use of the credit of third parties, customers and people who will work on behalf of these operators. It is clear that this company is a marchepied, but it must be used with certain caution. It must be framed as best as possible.

I would like to remind this tribune that we must not find ourselves in the same situation that we experienced about twenty years ago, when cooperative societies with unlimited responsibility multiplied, where people associated and engaged on their own assets. These companies, with little social capital, which experienced difficulties, resulted in loss and financial dramas in the head of the associates and cooperators. Hence the intervention of the legislator in the years that followed to establish the cooperative companies with limited liability.

These are the comments I wanted to make! Certainly, a legal framework should be created, but it must be used with caution. We can actually hope that the certified accountants, the expert accountants, the auditors who will constitute these companies initially, will not fail to draw the attention of those who will opt for this path – notaries will probably do the same – on the fact that this is a precarious framework or a temporary framework with its obstacles. We can only hope that those who choose it will not experience difficulties.

Mrs. Minister, you allow me to repeat the question that was asked by many of us in committee, namely that of the publication or not of the financial plan. According to your statement in commission, you gave the impression that it should be authorized to publish it. It would be appropriate to clarify things clearly. For me, the financial plan should not be published. It must remain in the hands of the notary and it is in cases of serious difficulties that the public prosecutor, for example, or the curator can seize it to verify whether the acts performed are in accordance with the responsibility of the founders, namely to put on the legal stage an economic operator in this form and within this legal framework.

In conclusion, my group will vote positively for this bill.

The introduction of the bvba starter is an excellent measure to stimulate entrepreneurship and creativity and it is necessary because Belgium is behind European countries when it comes to the creation of new enterprises. Nevertheless, new enterprises give a strong boost to our economy and that is exactly what we need.

Young startups with good ideas today are too often discouraged from starting their own business due to the too high minimum capital requirement. The present draft law addresses this. In addition, the company form also exists in other European countries and we are at risk that the truly innovative companies will be forced to settle in another country. We must not be left behind and the chance goes to see our talent go abroad.

In addition to the benefits for the start-ups, it is also positive that it is thought to protect the creditors with in the first place the workers and consumers. The founder’s responsibility is simply ⁇ ined. After the first three years, the members shall still be partially liable until the fifth year for the difference between the capital they have inserted and EUR 18,600.

In addition, the mandatory transfer of 25 % of the net profit to the capital of the company is also a good thing, as well as the obligation to switch to a full-fledged BSA within five years. However, the real guarantee for creditors lies in the obligation to draw up a financial plan. This plan should be checked by professional people.

In practice, it has been shown many times that the minimum capital requirement is absolutely not a guarantee against bankruptcies. Other factors play a role, more important, such as the current knowledge and experience, the type of personality of the entrepreneur and the expertise of the advice he receives. In this context, a comprehensive and well-defined policy and financial plan is a more important guarantee than a minimum capital requirement.

However, the condition is that there is sufficient control and supervision of the financial plan. They must be read by experts and must meet certain minimum requirements. This is very important and the Open Vld wants to hammer on this. Suitable attention should be paid to the financial plan. At the moment, it is not clear which criteria the plan will have to meet and how compliance will be checked.

Per ⁇ the Minister could give more explanation on this.

Overall, we can conclude that the bill addresses a real need in our economy and that it offers young entrepreneurs an opportunity to realize their dream without depleting the guarantees of the creditors. Rather, the financial plan offers their additional assurances. For all these reasons, the Open Vld Group will support the proposal.