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| Maarten Vandewaerde |
10 May 2019
THE 2020 BELGIAN CODE ON CORPORATE GOVERNANCE
This is the third Belgian Code on Corporate Governance, which replaces the versions previously published in 2004 and 2009. The 2009 Code was indeed due for a revision. Since its publication, there have been numerous changes to the Belgian and European regulatory framework. Further-more, the new Belgian Code on Companies and Associations will enter into force in 2020. This contains a number of significant changes for listed companies. Also, at the societal and academic level, there have been additional insights and debates on the sound management of listed compa-nies (further referred to as ‘governance’ in the 2020 Code). Therefore, an overhaul was needed to keep the Code coherent and relevant.
The 2020 Code is the result of in-depth and at times intense discussions among the members of the Corporate Governance Committee (the Committee). The draft of this new 2020 Code was subjected to a broad consultation, in which both board members and executives, but also investors, academics, and trade union and non-governmental organization representatives were heard. This input has enriched the final 2020 Code, as amendments were made following the consultation to take account of a wide range of suggestions and comments. I would like to thank all who have devoted their energies to this effort.
<click here> complete version (PDF)
10 March 2013
Women on Belgian boards
Fairly recently the Belgian government implemented a law, published on 14 September 2011, that is intended to create and maintain a certain level of gender diversity within Belgian boards. Traditionally, boards of directors in Belgium, as in the rest of the world, have been dominated by men. Recent research indicates that 93 percent of Belgian listed companies have less than 30 percent of women directors and that half of them do not have a single woman on their board.
It is in this context that the Belgian government, following the example of for instance Norway and France, implemented legislative measures to address this gender imbalance. Specifically, the law introduces a new article in the Companies Code which stipulates that at least one third of the board of directors must be of the opposite gender. The law applies to listed companies and some state-owned companies such as Belgacom and Bpost. The quota requirements will enter into force in 2017, with some exceptions (small listed companies with less than 50% free negotiable shares have two years extra, while state-owned companies, as a way of example, have only until the next fiscal year).
The new law also stipulates the sanctions which apply when the quote are not met. Of the two main sanctions, one entails that directors of non-compliant boards will not be able to receive any benefits, financial or otherwise, emanating from their mandate at the specific board. In addition, non-compliance is also sanctioned by the nullity of a next director’s appointment. When the gender quota is not met within a certain board, a newly appointed director must be of the underrepresented gender. The appointment is considered invalid when it violates this obligation. The same rule applies when, as a consequence of the appointment, the number of directors of a particular gender drops below the required minimum. Evidently this second sanction could have legal repercussions for any decision that a new board member may have been involved in. However, it is still not that far-reaching as a first proposal, met with great criticism and consequently abandoned, which stipulated that any decision made by a board which does not comply with the gender quota would be void.
While the law has been welcomed by advocates of equal gender rights, corporations seem to be less happy with a legal minimum gender representation on their boards and claim it may hamper effective functioning and decision making. The Belgian Enterprise Federation (VBO), for instance, reacted with disappointment to the legislative measure as it had been lobbying for a voluntary 30% quota within the next seven years (according to a comply or explain principle). In a similar fashion, a recent study among 714 owners of SME’s, not affected by the law in question, indicated that 81 percent of respondents are opposed to legal quota even though they acknowledge gender diversity within the board is likely enriching.
8 November 2012
Firms flee Brussels stock exchange. Corporate governance to be blamed?
Duvel Moortgat is the latest of a series of flagship companies listed on the Brussels stock exchange which will be withdrawn from the listing. The companies majority (family) shareholders have announced a voluntary takeover bid on all Duvel Moortgat shares. Along with other companies which have recently decided on an exit (e.g., Omega Pharma, Transics, VPK) or which have been taken over and as a result will leave the Brussels stock exchange (Telenet, IRIS en Devgen), the Duvel Moortgat case is symptomatic of a trend which has manifested itself recently. In the last three years, almost 20 companies have left the Brussels stock exchange, while very few have made an entrance. Although this is not typically a Belgian phenomenon as stock markets have become a less popular place in several countries (including the US and the UK), the exit of these prominent firms is a hot topic of discussion in the Belgian corporate world.
Firms are leaving the stock exchange for several reasons. First of all, the current extremely low interest rates make it interesting for them to issue bonds as a way of attracting capital, at the expense of the stock exchange. In addition, due to the financial and economic crisis and related drops in stock exchange prices, many firms currently feel being listed is unfavorable as listing prices do not reflect firm value. However, besides these economical and cyclical reasons, some also point the finger at corporate governance regulations.
Listed firms have much stricter and extensive reporting obligations than non-listed firms (e.g., transparency with regard to executive and director compensation, etc). In addition, they have to comply to a set of additional rules which do not apply to their non-listed counterparts, for instance with regard to the number of independent directors or women that sit on their boards. On the other end of the bargain, it seems that these rules aimed at transparency and better governance have not attracted more investors to the stock market. Although there lies some truth in these arguments, going back to the pre-Enron era would be no good for anyone, including stock exchanges. The Enron case and other corporate scandals (including the ones that have driven the world into the financial crisis a number of years ago) have painfully demonstrated that corporate regulation and oversight is necessary in a capitalistic system. These claims do provide some food for thought, however, regarding whether the current approach to corporate governance reflected in the diverse governance codes and regulations is too much about ‘corporate harassment’ as opposed to actual ‘good governance’ as their opponents propose.
7 September 2012
Update: Belgian listed firm’s corporate governance compliance
In addition to the Belgian Corporate Governance Committee’s report, Grant Thornton Belgium annually published a report focusing on corporate governance in Belgium in which listed firms’ adherence to a set of laws (Corporate Governance Act) and principles (Corporate Governance Code) is reviewed. The analysis consisted of a comparison of 32 criteria from the Corporate Governance Act and the Corporate Governance Code with information from the annual reports of 118 Belgian companies listed on Euronext Brussels (the Committee’s report only included BEL20 companies, explaining some of the differences in both studies’ findings). Grant Thornton offers several positive highlights, along with some challenges which remain. As the full report can be found on their website, only these will be shortly discussed here.
Positive highlights
Overall, governance practices of most companies have positively evolved.
- in 2010 the overall compliance score was 87 % compared to 77% in 2009, while compliance with legal requirements was 86%.
- about 18% of companies have achieved full compliance with both the CG Act and the CG Code’s requirements.
- 40 businesses (34%) are fully compliant with the legal requirements set out by the CG Act.
- compared to 2009, the most significant progress has been made in the following areas:
* the CG statement provides a description of the key characteristics of the internal control and risk management systems (+27%)
* at least one member of the audit committee is independent and has relevant experience in accounting and audit (+29%)
* a remuneration committee has been created (+39%).
Challenges
- especially with regard to the the remuneration report, further progress is possible, as shown by the relatively poor scores for the following items:
* disclosure of the CEO’s individual remuneration (69%)
* disclosure of severance pay policy (74%)
* reporting on the determinants of variable remuneration of executive directors and management (74%).
- only 42% of companies provide real insight into the effectiveness of their internal control and risk management systems by using the COSO model as a reference framework.
- less than 10 percent of directors is female and more than half of all boards are exclusively male, while only eight out of 118 companies already comply with the (future) quota of 1/3 women on boards.
- small companies score significantly lower than larger companies, especially with regard to audit committee and remuneration committee requirements.
More information and the full report can be found here
http://www.grantthornton.be/EXEN/site/pub-dl-detail.aspx?vPK=555&vCat=25
27 July 2012
Study on the compliance of the Belgian Corporate Governance Code by the BEL 20 companies
Since a few years, GUBERNA (Institute for Directors) and the Federation of Entreprises (VBO) analyze to what extent the listed companies respect (i.e., comply or explain) the Belgian Corporate Governance Code. The current study, of which the highlights will be discussed here, only assesses the extent to which formal aspects of the Code are respected based upon an analysis of annual reports, corporate governance statements and corporate governance charters of 18 firms listed on the BEL20 stock index. In general, the study concludes, the largest Belgian listed firms demonstrate a high level of adherence to the Belgian Corporate Governance code. A more detailed discussion of the different sub-aspects addressed will follow below.
- every BEL20 company publishes a corporate governance charter that is available on the company website and provides information regarding corporate governance in the annual report. They all base their reporting on the 2009 Corporate Governance code.
- every BEL20 company has composed an internal code for the board of directors, the different board committees and the management team, which amongst others stipulates the responsibilities of these different bodies.
- on average, a BEL20 company board is composed out of 13 directors, of which at least half is non-executive and only one or two hold a position in the top management of the company. On average there are 5 independent directors regarding which each firm stipulates the criteria for independence. 89 percent of companies are characterized by a non-dual leadership structure.
- 10 percent of directors in BEL20 companies are female and one out of 3 does not possess the Belgian nationality. The average age of a director is 58 years. The majority of firms stipulate that the maximum age for their directors is set at 70.
- all BEL20 firms make use of an audit committee and all but one have a remuneration and nomination committee (4 use a separate nomination committee). Out of the 18 studied companies, 12 apply the more rigorous requirements regarding the composition of these committees (e.g., with regard to independence) while another 5 explain why they do not.
- the boards of directors of the firms under study meet on average 9 times a year. Absences are reported in a transparent matter and hover around 10 percent. Audit, remuneration, and nomination committees meet on average 6, 4 and 2 times respectively.
- almost all of the BEL20 companies publish a remuneration report and are transparent regarding the internal procedure used regarding the remuneration policy. All companies display the necessary transparency regarding the remuneration of individual directors and only one fails to do so with regard to the CEO’s remuneration. Regarding the reporting of stock-related remuneration, however, there is less adherence to the Code as 3 companies do not explain why they do not comply to its regulations.
More information on this study and the full report (in Dutch and French only) can be found here: http://www.corporategovernancecommittee.be/en/news_details/default.aspx?news=20ec6797-0f8d-4375-b87b-3778a6541dc7&language=en
6 March 2012
Last week’s announcement of the compensation of Belgacom CEO Didier Bellens has fueled the debate about the appropriateness of current top management compensation in Belgian state-owned firms. Bellens earned approximately 2,6 million euro in 2011 as CEO of the Belgian telecom giant in which the Belgian state holds a majority share. Besides the sheer size of the compensation, the fact that this corresponds to more than 80 times the wage of the lowest earning employees has stirred outrage within the political landscape and labour unions as it is felt that such a wage span is intolerable, particularly in state-owned businesses and given the current socio-economical situation in the country.
There is general political consensus that the current situation is undesirable and that top salaries in state-owned firms need to be curtailed, yet specific measures have still to be taken. In this regard, the Belgian Minister for State-owned Enterprises, Paul Magnette, has ordered a study which is to detail the situation in other countries and assess the legality of possible measures. In the meanwhile, some politicians are offering some, although not unanimously well received, suggestions such as not allowing the wage of these top managers to exceed the wage of the Belgian prime mister or thirty times the lowest wage within their firms. Similarly, golden parachutes for top management in these state-owned firms are under scrutiny after it turned out that very recently two former Belgacom top managers jointly raked in about 2,7 million euro upon leaving the company.
Yet, even though there is consensus that something needs to be done, at the same time there are voices that urge for carefulness. Several years ago the decision has been made to attract people from the private sector in order to lead state-owned companies more professionally and effectively. As such a choice has been made, one must also be willing to pay these people market-based compensation, it is argued. Obviously, regulators need to proceed carefully in handling this sensitive topic. The final report and formal proposals are expected around May.
20 February 2012
On February 15, The Utrecht court has announced its decision in first instance regarding a claim instigated by a group of Fortis shareholders who argued to have suffered a loss as a consequence of misleading information provided by the former Belgian-Dutch financial services provider. The court ruled that Fortis as well as two of its top executives, former CEO Jean-Paul Votron and former chief financial officer Gilbert Mittler, were indeed responsible for publishing misleading information during the period between May 22 and June 26 in the year of its tragic demise (2008). During that period, the firm publicly maintained that their solvability was up to standards. However, at the end of June, Fortis shocked the market by having to announce that it would execute a € 8.3 billion capital increase and would not pay out any dividends that year. The court judged that the company and its executives had knowingly painted an overly positive picture of its financial situation and that they should have come clean about this much earlier. While similar charges have been held against Fortis before, this verdict is exceptional in the sense that its executives were held liable by the court as well. The former Chairman of the board, Maurice Lippens (who ironically was also chairman of the committee responsible for the Belgian corporate governance code) was not held liable, however, as he was judged to be too far removed from everyday events in the firm. Whether or not the shareholders concerned in the lawsuit did actually suffer a loss as a consequence of the misleading information and, if so, the amount of this loss is yet to be decided in separate proceedings.
In a related fashion, Deminor (a Belgian firm defending the interests of minority shareholders), issued a statement that it is about to press charges against Ageas (the current-day remainder of the original Fortis Holding) for misleading investors. Representing 5.350 investors in a collective lawsuit, Deminor’s claim is estimated to be in the area of €0,5 billion. The upcoming claim is the result of an effort that has been going on since the end of 2009 to find proof that the former crown jewel of the Belgian financial sector has misled investors since the bid on ABN Amro in May 2007 until the dismantling of the company in the fall of 2008.
These and other lawsuits may provide shareholders with the chance to recover part of their investment which was butchered after Fortis’ stock price collapsed during the 2008 financial crisis and the firm was consequently nationalized by the governments of Belgium (which later sold off the Belgian branch to BNP Paribas where it is now a highly profitable subsidiary), The Netherlands and Luxemburg.