STUDY ON DIGITALISATION OF COMPANY LAW By everis for the European Commission – DG Justice and Consumers Final Report (draft) Justice and Consumers 1 The information and views set out in this presentation are those of the author(s) and do not necessarily reflect the official opinion of the Commission. The Commission does not guarantee the accuracy of the data included in this presentation. Neither the Commission nor any person acting on the Commission’s behalf may be held responsible for the use which may be made of the information contained therein. © European Union, 2017 Prepared By everis Brussels and Company Law experts: Dr. Antigoni Alexandropoulou Enrica Senini Geert Somers 2 MEMBER STATES REPORT MEMBER STATES REPORT 3 1 GLOSSARY 5 1.1 BELGIUM 8 1.2 CYPRUS 22 1.3 CZECH REPUBLIC 41 1.4 DENMARK 59 1.5 ESTONIA 72 1.6 FINLAND 93 1.7 FRANCE 118 1.8 GERMANY 132 1.9 GREECE 158 1.10 HUNGARY 176 1.11 POLAND 192 1.12 PORTUGAL 206 1.13 SPAIN 225 1.14 UNITED KINGDOM 248 3 4 DOCUMENT META DATA Property Value Release date 13.12.2017 Status: Final Version 3.2 Authors: everis Reviewed by: DG – JUST Approved by: 5 1 GLOSSARY Business registers – central, commercial and companies' registers established in all EU Member States in accordance with Directive 2009/101/EC. Company Law – legislation that regulates the creation, registration or incorporation, operation, governance, and dissolution of companies. Digitalisation of Company Law – changes in the Company law related procedures to move from paper-based processes where a physical presence before an authority is required, to end-to-end direct online ones; Registration – procedures for the registration of companies with the national authority in charge (usually the business register). Filing – procedures associated with the organisation and filing of company information and documents (e.g. instrument of constitution and any amendments to it, appointment, and termination of office and particulars of representatives, the amount of capital subscribed) by companies or their representatives with the national authority in charge (usually the business register). Dissolution – procedures associated with the dissolution of a company, conducted by a national competent authority. Mergers, Acquisitions and Insolvency cases are outside of the scope of this study. Publication – procedures associated with the publication of company documents (e.g. information on company’s organs, articles of association, and amendments to such documents) in the national official publications such as national gazettes. Online procedures and steps – company law related procedures and/or steps of a process that can be fully (or partially) conducted online through web services made available to end-users (entrepreneurs or company owners). Direct online procedure: This refers to an online procedure that can be done directly by the stakeholder, i.e. without the intervention of any other intermediary or authority. End-to-end online procedure: An online procedure that can be fully conducted online end-to-end, i.e. there is no step in the process that needs to be done off-line and no need for physical presence before an authority. Mandatory online procedures – company law related procedures and/or steps of a process that are mandatory to be conducted online in compliance with a Member State company law. Mandatory face-to-face procedures – company law related procedures and/or steps of a process that require physical presence both from the public authority and the entrepreneur or company representatives in compliance with a Member State company law. 6 Optional online procedures – company law related procedures and/or steps of a process that can be conducted online according to the will of the entrepreneurs or company representatives but that are not imposed by the Member State company law. Optional face-to-face procedures – company law related procedures and/or steps of a process that can be conducted face-to-face according to the will of the entrepreneurs or company representatives but that are not imposed by the Member State company law. 7 1.1 BELGIUM Belgian company law is implemented by three central actors, notaries, the commercial courts (Rechtbanken van Koophandel / Tribunaux de Commerce) and the Crossroads Bank of Companies (Belgian Business Register). For ten years now, digital tools have been designed and implemented by the Belgian government, and company law has been deeply modernised and simplified, which reduced registration time, costs and administrative fees (e-depot online tool). However, Belgian company law still mandates that company owners – or company administrators – of companies incorporated with limited liability need to physically present themselves in front of notaries in order to obtain notarial deeds at any stage of the company life-cycle, from registration to voluntary dissolution, with the exception of the filing of the annual accounts. One of the major advances towards the digitalisation of company law in Belgium is the effective online interconnection between notaries and the business register for the creation of companies where the intervention of notaries is mandatory. In this context, notaries have created a single secure gateway (www.e-notariat.be). This intranet, although only used by notaries, allows secure access the e-depot online tool with a direct access to the business register. Notaries can access their shared platform through an electronic certificate which enables them to directly access all other actors involved in short term procedure (one day). Within the online registration procedure created by Belgian law, a one-time face-to-face procedure is mandatory for the identification of the founder when drawing up and signing the authentic act of constitution of the company (single procedure), to reduce the possibilities for identity theft and to verify the capacity (legal and otherwise) of the founder. Moreover, and while in principle Belgian company law mandates that company owners – or company administrators– need to physically present themselves in front of notaries in order to obtain notarial deeds at any stage of the company life-cycle, from registration to voluntary dissolution, with the exception of the filing of the annual accounts, the Company Code does open up the possibility to all companies incorporated with limited liability to include a procedure in the bylaws to organise their general meetings electronically, so that the shareholders can participate and vote from a distance, even for decisions that require a presence notarial deed. The yearly filing of annual accounts can be conducted online by companies directly through the National Bank of Belgium website. The following chapter details a step-by-step overview on registration, filing and voluntary dissolution, and offers a cost analysis and benefits, focused on the company owner perspective. 8 1.1.1 REGISTRATION OF COMPANIES 1.1.1.1 Description of the process associated with the registration of companies The following figure depicts the different stages needed to register a company in Belgium. It explains who are the actors involved in each of the stages and which stages can be conducted online. As the figure shows, almost all the processes have to be conducted face-to-face except the publication of registration which can be done online. The Belgian authorities involved in the process of registration of companies are: the Belgian Business Register (KBO – Kruispuntbank van Ondernemingen / BCE – Banque-Carrefour des Entreprises) and the Commercial Courts (Rechtbanken van Koophandel / Tribunaux de Commerce). The first entity belongs to the Ministry of Economy and its main function is to make information available in various ways to public administration and the public. The latter one is managed by the Ministry of Justice and precedes the whole registration process (after a submission of all the necessary documents). 9 1.1.1.2 Step-by-step analysis of the process associated with the registration of companies The current section details the step by step process that has to be conducted in order to register a new company in Belgium. The following table offers a description of each step, actors involved, their roles, whether or not each step can/must be conducted on-line, and the tools used. 1. Verification of the identity of the founders The notary performs an identity verification. This verification implies a virtual checking of different databases in order to authenticate company founders’ identity and a control of both mental and Description civil capacity of company founders, as well as the consent of the parties involved. They will be able to reuse that number in all their future dealings and enterprises in Belgium. All steps take less than one day. - Company founders Actors Involved - Notary Online vs. Paper based Paper-based face to face before the notary (representation could by attorney/legal representative) Platform N/A Storage N/A Required information IDs of company founders 2. Checking the availability/appropriateness of company name The company founders have the responsibility of choosing an adequate name (or a name that has Description been already chosen). Otherwise, they can be forced to change the name and pay for damages to the company holding that name in the first place. The notary automatically checks the chosen name through various platforms when company founders register the company. - Company founders Actors Involved - Notary Online vs. Paper based Online or face-to-face at notary Platform Moniteur Belge, Business register, Graydon, Soc (a dedicated service created by the Federation of Belgian Notaries) Storage Web services Required information N/A 3. Confirmation of the share capital deposit fee Description The bank issues a certificate of payment as proof that the company founder has deposited the minimum share capital in a bank account. E.g. in case of a limited liability company (SPRL), the 10 minimum share capital is €18,550. The stated capital must be fully subscribed upon formation and at least one-third of the minimum capital, namely €6,200, must be paid up on the day of the creation.