In Belgium, as in other jurisdictions, international - especially Anglo-Saxon - business practices have had a tremendous influence in shaping the acquisition procedures that are used today. Such an influence has had as direct effect that due diligence procedures have become more and more common in Belgium in the early eighties and that most deals are nowadays struck after such a process has been carried out. However, under Belgian law, there is no general requirement imposed upon the buyer of movable assets to conduct an inspection of the assets to be purchased prior to the sale.
As there is no legal requirement to conduct pre-sale investigations in Belgium, the issue of due diligences is left entirely up to the parties, who freely negotiate this matter. Due diligences are of course seen in Belgium, as in the United States, as an excellent process to protect the interests of the prospective buyer of a company or of a group of companies.
Neither is there under Belgian law any general prohibition of due diligences or similar investigations of companies carried out by unrelated third parties. The only requirement to lawfully perform investigations is that there be a mutual agreement between all parties as to the scope and the procedure of the investigations. In addition, the Board of Directors of the company whose business is to be investigated must authorize the investigation. As the Directors of any Belgian company must in all circumstances act in the company's best interests, the decision to release information must abide by this rule. If the conduct of a due diligence is contrary to the company's best interests, its Directors are prohibited from allowing the conduct of the investigations.
Important information with respect to Belgian companies is publicly available and a lot of information can be gathered by consulting public files. A more detailed due diligence requires of course the examination of documents to be obtained from the company itself.
In particular, information can be obtained from the "Registre du Commerce/Handelsregister", which is a public registry maintained at the Commercial Court, from the file of the company opened by the Clerk of the Commercial Court where the company at hand has its registered office, by checking the publications made by the company in the Annex to the Belgian State Gazette, Belgium's official journal, and by verifying the annual accounts of the company which must be filed once a year with the National Bank of Belgium. However, no information can be obtained from the tax administration.
The content of this article is intended to provide general information on the subject matter. It is therefore not a substitute for specialist advice.
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