Incorporate a Company in Belgium

The question

You and your co-founders are starting a business. You need to decide whether to trade as a sole proprietor or through a company, which form fits, what the founders risk personally and what has to be agreed between you before money and work go in. Behind that sits a question that is often forgotten: who will own the code, designs, name and know-how that you created before the company existed?

In Belgium the Code of Companies and Associations (WVV/CSA) offers a limited set of forms. The private limited company (BV/SRL) is the usual choice because it is flexible: there is no statutory minimum capital, and the articles and a shareholders' agreement can tailor control, transfers and distributions. The public limited company (NV/SA) suits larger or listed structures and has a statutory minimum capital. A cooperative (CV) fits members who join for a shared purpose. A sole proprietorship is the simplest to set up, but your private assets answer for the business debts.

Whatever the form, the founders must draw up a financial plan, and the capital must be sufficient for the planned activity. If a company goes bankrupt within three years and its equity was manifestly insufficient, the founders can be held liable for the shortfall. A real plan is therefore also your protection.

Our approach

We start with a conversation about the business, the founders and the funding you expect, and advise on the form. Where funding rounds are likely, we take into account how the structure will later be read by investors, as explained in our note on funding rounds and our funding solution.

We then prepare the formation file: the financial plan with you and your accountant, the articles of association, the founders' contributions and the appointment of directors. The company can only come into being by notarial deed, so a notary is required. We prepare the documents, align them with your notary and attend to the points that need a lawyer's judgement, such as the purpose, the board and the rules on share transfers. After the deed is signed and filed, the company is registered in the Crossroads Bank for Enterprises (KBO/BCE) and, where relevant, for VAT. Your accountant or an enterprise counter handles those steps with us.

The shareholders' agreement is where most founder disputes are prevented. We draft it with our Document Studio, which starts from the firm's clause library and fills in party details, including Belgian company data, so that the draft is consistent. The attorney adapts it to your deal. Typical subjects are vesting of founder shares, good and bad leaver rules, transfer restrictions and pre-emption, drag-along and tag-along rights, decision-making and deadlock, and non-compete and confidentiality.

The Pitch angle is intellectual property. Software, designs, inventions and content created before incorporation belong to their creators, not automatically to the company. We identify what exists, using the approach in finding the IP you already have, and move it into the company through a contribution or a written assignment. Copyright transfers must be drafted carefully and in writing; protecting software explains why. We also put contracts in place with early contributors and freelancers so that their work belongs to the company, and we clear the name. A trademark clearance shows whether it is free, and our trademark filing technology prepares the application in the company's name, followed through in trademark registration. We check that the domain name is registered to the company and not to a founder.

Where the company will earn income from IP, the structure matters for tax. Held in the company, qualifying IP income may benefit from the innovation income deduction; see the overview of Belgian IP incentives. Tax structuring is coordinated with your tax adviser.

What you get

• Advice on the legal form, with the reasons for the recommendation.
• A financial plan checklist and a view on founders' liability.
• Draft articles of association and the documents for the notary, agreed with your notary.
• A shareholders' agreement tailored to your team.
• IP contribution or assignment deeds, and contracts for contributors and freelancers.
• A trademark and domain name plan in the company's name.

A lawyer reviews every document. We agree the fee in advance where the scope allows.

Take two founders of a Ghent software start-up who have written the first version of their product on their own. We advise on a BV, prepare the financial plan with their accountant and draft the articles. The shareholders' agreement provides four-year vesting and leaver terms. The founders assign their code and brand to the company, and a freelance designer signs an assignment. The name is cleared, filed and registered in the company's name. When an investor later asks who owns the product, the answer is already in the file.

Next step

Tell us what you are building, who the founders are and when you want to start. We will propose a scope and a plan.

Schedule a meeting or contact us.