UPDATE recent developments in digital transformation.
We all know the struggle of keeping securities registers on paper, getting them updated and signed in a timely manner, allowing for shareholders to consult them etc. A partial solution is to keep the registers in a digital form, which is a possibility ever since the entry into force of the Belgian code on companies and associations. Through this blog, we will elaborate on the use of an e-register, allowing the board of your company to take a well-informed decision and make the transition from paper to digital.
All public limited companies (naamloze vennootschapor NV), private limited companies (besloten vennootschap or BV) and cooperative societies (coöperatieve vennootschap or CV) are obliged to keep a securities register. With the entry into force of the Belgian Code on companies and associations on 1 May 2019 (hereafter CCA) it became possible to keep the securities register in a digital form rather than on paper.
As we notice that a lot of companies have not yet made the transition from paper to digital, we have set out the basic principles below as well as the pros and cons to allow the board to take a well-informed decision.
The downsides of paper…
Although the possibility of a digital securities register no longer qualifies as new, we notice that a lot of companies stick to the habit of keeping their securities registers on paper. However, paper registers have a lot of downsides such as not being kept up to date, being illegible, a higher risk of loss, the lack of structure that often leads to mistakes, and so on.
… the upsides of digital
By its nature a digital register is easily accessible, can be updated without too much hassle and allows to keep an oversight of all changes as a historic overview must be kept of all changes made to it (mentioning the date as well as the person that made the update). It is also worth mentioning that the transaction documentation relating to the update can be attached to the registration. Additionally, the digital register can easily be signed using a digital signature, saving a lot of time and effort put into proxies for signing.
In accordance with the Royal Decree implementing the CCA all e-register platform operators have an obligation to take appropriate measures to ensure that access to the register, both for the purpose of registering a transaction as well as for consultations, is only possible using a system of access control.
Such access control must be threefold: (i) the identification of the person, (ii) the verification of the legal capacity based on which they believe they are entitled to access the register, and (iii) the relevant nature of the data requested in case of consultation.
In addition, the operator is also required to use all necessary means to track all consultations and transactions, identify their authors and date the consultations and transactions. These records must be kept for the entire duration of the data retention. This allows to maintain an overview of who had access to which data, when and for what specific purpose, safeguarding the integrity of the register and preventing manipulation by third parties.
Link to the UBO register
Although not all platforms offer this additional service, an added benefit of the e-register is the link with the UBO-register. The Belgian Institute for Accountants and Tax Consultants (Instituut van de Accountants en Belastingconsulenten or IAB) and the Federation for Notaries Public (Federatie voor Notarissen) jointly created the platform “eStox”, providing, aside from the basic services as foreseen, a direct link between the securities register and the UBO register.
By creating such a link, all amendments to the shareholding of the company using eStox will automatically be registered in the UBO register. On top of that, you can also arrange the annual reaffirmation via eStox. This substantially diminishes the burden on the board as well as the possible risk of breach of its obligations and the liabilities that may result therefrom.
An easy transition?
Something of importance to keep in mind when making the transition to digital is that the existing securities registers, if any, have to be kept at the seat of the company to secure the proof of the registration of transactions dated prior to the implementation of the e-register.
It should be noted that not all securities registers have to be kept in digital form, meaning it is possible to keep an electronic shareholders’ register but a subscription rights’ register on paper.
If a company decides that an e-register is not for them and wants to make the transition (back) to paper registers, the e-register will simply have to be printed out, dated and signed, and kept at the seat of the company.