Comparative legal analysis of associations laws and regimes in the EU. Country Report: Belgium

Executive summary

The “Code of corporations and associations” (hereafter, CSA), or code des sociétés et associations defines associations, as “an agreement between two or more persons to pursue a philanthropic goal following one or more defined activities, which constitute its legal status”. Generating a profit is permitted only if:1 it comes from economic activities defined in the legal statute; these activities must be in compliance with goals determined in the statute; it is not allocated neither to founders, nor to members and nor to executive staff.

There are three types of associations:2

1) de facto association, which is not a legal entity; the ministry of Justice specifies that there is no particular legislation applicable (including the CSA) to de facto associations, and its members invest their own assets and are personally liable for decisions and actions they make;

2) registered association without lucrative goal, or association sans but lucratif (ASBL); this is a legal entity recognized by the CSA, for which members are not personally liable for decisions and actions the association makes; it is the standard form of association as defined by the CSA;

3) registered international association without lucrative goal, or association international sans but lucratif (AISBL); this is a legal entity recognized by the CSA and the King of Belgium, “pursuing a public and international goal”, for which members are not personally liable for decisions and actions the association makes; additional legislation and obligations apply to the AISBL governance.

Freedom of association is a founding value of the Kingdom Belgium and is guaranteed since the first Belgian Constitution of 7 February 1831 was adopted. While the primary source of law of the freedom of association is article 27 of the Constitution of 17 February 1994, the main source of association regimes is the “Code of corporations and associations”, passed by the Act of 23rd March 2019 introducing the Code of corporations and associations and miscellaneous measures.

Legal personality is acquired:3 for ASBL the day when the association submits its case with all necessary elements for registration;4 for ASBIL, the date when a royal order granting recognition is passed, after a review and approval by the ministry of Justice making sure the AISBL is pursuing an international goal and not causing harm to public order.5

The following administrative fees apply:6 for the constitution, equivalent to registration, EUR 206.91 if the association submits documents in hard copy and EUR 149.44 if it submits documents a e-form; for any modification to legal statute, as well as nominations and resignations, EUR 140.20 euros for documents either hard copy and e-form.

The legislation does not restrict any field or type of economic activities. It is required that this economic activity is in compliance with the goals determined in the Statute. If an association conducts economic activities, general commercial law applies.

Belgian legislation strictly defines a framework for associations, such as creation, governance and operating rules, for which founders must provide a lot of details to public authorities. Association’s philanthropic goal is more than a purpose, it is a backbone element which determines activities, management and liquidation. State supervision is prevalent, as association must register to the Commercial court every fundamental decisions it makes.

In 2020, according to Baromètre des associations7, almost 110 000 active association existed in Belgium. The estimated minimal number of members of the associations in Belgium in 2020 is 220 000 people8. In 2017, the total added value of the associations in Belgium was 37 billion EUR9. The associations represent 2.52% of total registered economic businesses in Belgium in 2020 and their value represent 5% of GDP. In 2017, a total of 497 400 people were employed by associations, either full time or part time. They weigh 12.6% of total employment, but 9.8% in terms of salaries. The total number of volunteers working for a non-profit organization in 2015 is estimated to 185 00010.

In 2018, 2000 associations conduct cross-border activities as AISBL, according to the Fédération des associations internationales en Belgique.11

Contents

REGULATORY FRAMEWORK

1.Definition, types of association and characteristics

2.Sources of law founding associations

3.Formation requirements and constitutive acts and elements

4. Registration requirements

5. Administration costs

6.Liability

7. Legal personality

8.Definitions of public interest

9. Membership regimes

10. Economic activities permitted

11. Governance, operating rules and bodies

12. State supervision

13. Reporting and transparency

14. Resources and assets management

15.Liquidation

16.Fundamental decisions

17.Taxation regimes

LANDSCAPE

1.Number of associations in Belgium

2.Number of members

3.Activities covered

4.Revenues

5.Economic weight

6.Share between voluntary and paid work

7. Data on cross-border activities

References

REGULATORY FRAMEWORK

1.Definition, types of association and characteristics

The “Code of corporations and associations” (hereafter, CSA), or code des sociétés et associations, defines associations as “an agreement between two or more persons to pursue a philanthropic goal following one or more defined activities, which constitute its legal status”. Generating a profit is12 permitted only if13it comes from economic activities defined in the Statute;

There are three types of associations:14

Legislation related to ASBL applies to AISBL in absence of specifications.

Belgian legislation also comprises an additional characteristic, known as certification. It offers tax reduction to donors.15 Certification is granted by the Federal public service for finances if the association in question is active in at least one the following fields:

2.Sources of law founding associations

The primary source of law is the Constitution. Article 27 of Constitution of 17 February 1994 is explicit: “Belgians have the right to associate; this right can be subject to any preventive measure.” This article is a replica of article 20 of the first Belgian Constitution of 7 February 1831.

The secondary source is the Act of 24 May 1921 guaranteeing freedom of association, or loi du 24 mai 1921 garantissant la liberté d’association. It deals with short general principles. Article 1 is also explicit: “Freedom of association in all fields is guaranteed.”

Then, the essential source of law is the CSA, containing details related to principles, procedures, organization, operating rules, etc. It was passed by the Act of 23rd March 2019 introducing the Code of corporations and associations and miscellaneous measures, or loi du 23 mars 2019 introduisant le code des sociétés et des associations et portant des dispositions diverses. It puts together legislation related to associations, including the backbone Act of 27 June 1921 on associations without lucrative purpose, foundations, European political parties and European political foundations (last version’s name), or loi du 27 juin 1921 sur les associations sans but, as well as several legislative modifications and amendments over time.

While the code deals with corporations, national associations, international associations and foundations, these different legal entities are described and treated separately.

3.Formation requirements and constitutive acts and elements

The Code of CSA provides all necessary details. Legislation related to ASBL applies to AISBL in absence of specifications.

1. Requirements for establishing an association

Two natural persons, at least, are necessary for establishing an association and they are considered as members.17

A notarial deed is mandatory for AISBL while it is optional for ASBL.18

There is a preliminary rule related to language:19

2. Constitutive acts and elements

For ASBL only, they must contain the following additional precisions:

For AISBL only, they must contain the following additional precisions:

4. Registration requirements

Association are registered by the Commercial court where the association has its seat.

Legislation does not mention if the registration can be refused. For ASBL, the action of submitting documents for registration leads to recognition. For AISBL, it can de facto be refused at the discretion of public authorities, as a Royal order is necessary.

Over the registration process, an application may be rejected if one of the constitutive elements or one of the registration requirements is missing, as well as if the goal or the purpose causes harm to public order.22

Once registered, the association is given a reference number.

5. Administration costs

6.Liability

An association in Belgium is a limited liability organization, so that members, executive officers and administrators are not personally liable for decisions made by the association. ASBL and AISBL members are not liable for contracts signed by the association.24

Code of CSA applies civil and criminal laws principles to any legal entities.25

More specifically:

Legal personality is acquired:31for ASBL the day the association submits its case with all necessary elements for registration;32for ASBIL, the date a royal order granting recognition is passed, after a review and approval by the ministry of Justice making sure the AISBL is pursuing an international goal and not causing harm to public order.33

8.Definitions of public interest

The concept of public interest applied to associations (including tax advantages, specific operations, etc.) does not exist in Belgian legislation for associations, unlike others European countries 34.

As mentioned above, there exists a special form of certification. It offers tax reduction to donors.35 Certification is granted by the Federal public service for finances if the association in question is active in at least one the following fields:

It is not synonymous of general interest and must not be confused with:

9. Membership regimes

These rules are completed by the Code of CSA:39

Members have equal voting rights in the general assembly, except if there is a different rule in the legal statute.4041

10. Economic activities permitted

The legislation does not restrict any field or type of economic activities. The only obligation is that this economic activity must be in compliance with goals determined in the legal statute. If an association conducts economic activities, general commercial law applies.

The association may provide services to its members if it is free of charge and in line with its purpose and goals.42

11. Governance, operating rules and bodies

The general assembly is the governing body, except if the statute provides otherwise (in this case, a delegate elected or appointed by the general assembly, a board, an executive committee elected or appointed by the general assembly or by the board may be identified as governing bodies).43

Some aspects related to governance are mandatory: the ASBL general assembly (if there are no other provisions in the statute) represents the association to third parties and its power is determined by the Statute44; administration must be operated by a college of at least three physical or legal persons, except if the association has two members45; administrators are nominated by the general assembly for either a limited or unlimited office term46 .

Some aspects related to governance are optional: adoption of an internal regulations document47;appointment of one person or more responsible for the daily management as well as for representation to third parties. This daily management may be on an individual, joint or collective basis48.

Some aspects related to operations are mandatory: convening a meeting of the general assembly is decided by the governing body or a fifth of association members, a notification must be sent no later than two weeks in advance and must contain an agenda;49 an agenda for meetings of the general assembly;50 recording operations related to membership;51establishing and approving an annual financial statement;52approving a remuneration for executive officers;53a general assembly is convened if one-fifth of members call for it.54

12. State supervision

There are no provisions with regards to the public authority which has jurisdiction over the associations. Nevertheless, the ministry of Justice has a de facto jurisdiction over associations, as every operation (registration, approval when required, public information, etc.), goes through it. Regarding AISBL, operations requiring a Royal order always implies a check review by the ministry of Justice.

an association may be refused registration if:55 one of the constitutive elements or one of the registration requirements is missing; the goal or purpose causes harm to public order.56

After registration, the closure of an association is decided by a judiciary authorities.57 Every operation breaking the non-profit principle makes the association null.58 As for any legal entities, every operation breaking operating rules is also null.59

The association must provide to the public authorities a copy of membership log and give access to members, if they request it.61 Public authorities may also check financial statements.62

For AISBL, every modification and fundamental decisions must be approved by a Royal order.63

13. Reporting and transparency

An annual reporting is mandatory and must be conducted by the governing body. It is reported to the general assembly and registered to the Commerce court. The lack of registration can lead to judiciary dissolution.

In addition, the last and current financial statements must be submitted for approval to the general assembly within six months following their closure.64 Double-entry accounting is mandatory if the association meets at least one of the following criteria:

Every fundamental decision must be registered and published in the Government gazette, or Moniteur belge.65

14. Resources and assets management

The CSA does not provide for a list of resources an association can get and use. It only specifies conditions for some resources. Usual resources are (not limited to):66

Non financial resources, but valuable ones, must also be taken into account:

Certification by the tax administration is an indirect source of revenue, as certified associations offer tax reduction to donors. Donation must be at least of 40 euros per year and per association, paid cash, or through a donation of a work of art upon conditions. The tax reduction is 45%, limited to either 20% of donor’s total net income or EUR 397.850.68

Inheritance or last will of a person are also permitted; the Code of CSA does not define such operation but often refers to it. According to the Federal public service for finances, if the value of this inheritance is over 100.000 euros, an authorization to proceed from the minister of Justice is necessary, and, if there is no answer within three months, the authorization is de facto given.69

There is no specification related to assets management, it is up to the management of the association, as long as it is in line with non-profit and philanthropic principles and with the association`s goals and purpose.

15.Liquidation

The dissolution is proceeded before the liquidation.

There are three types of dissolution:70

Judiciary dissolution is operated by the Commercial court, on request of a member, a third party or the ministère public, if the association:71

Then, the court proceeds to operations of liquidation.

The liquidation procedure is realized as follows: designation of a liquidator by the general assembly, with a simple majority vote, in case of a dissolution on a voluntary basis; if this operation is not conducted or if it is proceeded to a judiciary dissolution, it is designated by the Commercial court on request of a member, a third party or the ministère public.72 There can be several liquidators acting as one body;73without explicit permission by the governing body, liquidators cannot complete on-going operations; take a new loan to pay off debts, mortgage an asset, transfer properties, or sell any property by mutual agreement.74

Associations being non for profit organisations, , assets can be assigned neither to members nor administrators. They must be transferred to another non-profit organization, and, in absence of specification in the legal statute, to another association with the same goals and purposes.75

16.Fundamental decisions

The Code of CSA explicitly mentions what fundamental decisions are:76

Additional requirements are that:

Dissolution is decided on a voluntary basis, except when based on a judiciary decision, by the general assembly or the governing body defined by the statute, or following an action or an event as planned by the legal statute or law.77 The procedure is the same as the one for modifications. In addition to that, a report related to the state of the association must be provided by the governing body.78

In case of merge or split of the association, the general assembly must proceed to dissolution without liquidation and must allocate assets to the new association: a project and a financial report must be presented, and an accounting officer must be appointed.79

17.Taxation regimes

General tax, commerce and labour law apply to associations, if they hold economic activities and employees.

For economic activities, V.A.T. is not applicable for exceptional and irregular activities, and in support of core activities, such as a charity fair.80 Services provided for free are not eligible for V.A.T.

Associations must pay an annual tax, or taxe patrimoniale.81 This tax is specific to associations. All assets owned by the association are considered part of the tax base, , including intangible assets. However, assets located abroad are not part of the tax base. The tax rate is 0,17%. If the assets value is under EUR 25,000 euros, the association is tax-exempt. If the amount of due tax is under EUR 500 , tax return must be filled every three years instead of one.

LANDSCAPE

1.Number of associations in Belgium

According to Baromètre des associations82, almost 110,000 active associations existed in Belgium in 2020.

2.Number of members

The estimated minimum number of members of associations in Belgium in 2020 is 220 000 people83.

3.Activities covered

In 2017, according to the most recent figures available, published in 2020, the biggest added value was created by associations operating in the field of social and medical actions (23%), arts (16%), services (12%), education (7%), human health (4%) and others (37%)84,85.

4.Revenues

In 2017, the total added value of the associations in Belgium was EUR 39 billion86,87.

5.Economic weight

Associations represent 2,52% of total registered economic businesses in Belgium in 2020, and their revenues represent 5% of GDP

6.Share between voluntary and paid work

In 2017, a total of 497 400 people were employed by associations, either full time or part time. Their weigh 12,6% of total employment, but 9,8% in terms of salaries . The total number of volunteers working for a non-profit organization in 2015 is estimated to 185 00088.

7. Data on cross-border activities

In 2018, 2000 associations conduct cross-border activities as AISBL, according to the Fédération des associations internationales en Belgique.89

References


  1. Article 1:2, code des sociétés et des associations.

  2. Article 1:6, op. cit. ; article 10:1; https://justice.belgium.be/fr/themes_et_dossiers/societes_associations_et_fondations/associations/asbl ; https://justice.belgium.be/fr/themes_et_dossiers/societes_associations_et_fondations/associations/asbl/caracteristiques.

  3. Article 2:6, op. cit.

  4. Article 2:6, op. cit.

  5. Articles 2:6, 10:1 and 10:2, op. cit.

  6. http://www.ejustice.just.fgov.be/tsv_pub/tarif_f.htm

  7. https://en.calameo.com/read/0017742951db3f660b81b?authid=bOLPDPKT2cfh

  8. Based on the number of associations and the legal requirements about the number of members required for the establishment of an association.

  9. Le poids économique des Institutions sans but lucratif en Belgique Edition 2020.

  10. Le volontariat en Belgique Chiffres-clés, https://www.bonnescauses.be/media/12397/pub_3367_volontariat.pdf.

  11. https://www.lecho.be/economie-politique/belgique/bruxelles/bruxelles-risque-de-voir-filer-les-asbl-internationales/10012806.html

  12. Article 1:2, code des sociétés et des associations.

  13. Article 1:2, code des sociétés et des associations.

  14. Article 1:6, op. cit.

  15. https://finances.belgium.be/fr/asbl/dons/agr%C3%A9ment-asbl-%C3%A9tape-par-%C3%A9tape#q2.

  16. Articles 39 and 41, op. cit.

  17. Article 1:2, op. cit.

  18. Article 2:5, op. cit.

  19. Article 2:33, op. cit.

  20. Articles 2:9 and 2:10, op. cit.

  21. Article 2:9, op. cit.

  22. Articles 9:4 and 10:4, op. cit.

  23. http://www.ejustice.just.fgov.be/tsv_pub/tarif_f.htm

  24. Articles 9:1 and 10:1, op. cit..

  25. Article 2:1, op. cit.

  26. Articles 9:1 and 10:1, op. cit..

  27. Article 2:56, op. cit.

  28. Article 2:2, op. cit.

  29. Article 2:56, op. cit.

  30. Article 2:2, op. cit.

  31. Article 2:6, op. cit.

  32. Article 2:6, op. cit.

  33. Articles 2:6, 10:1 and 10:2, op. cit.

  34. Article 1:12, op. cit.

  35. https://finances.belgium.be/fr/asbl/dons/agr%C3%A9ment-asbl-%C3%A9tape-par-%C3%A9tape#q2.

  36. Article 1:12, op. cit.

  37. Article 11:1, op. cit.

  38. Articles 2 and 3, loi du 24 mai 1921 garantissant la liberté d'association.

  39. Article 9:23, op. cit.

  40. Article 9:17, op. cit.

  41. Article 9:17, op. cit.

  42. Article 1:4, op. cit.

  43. Article 2:50, op. cit.

  44. Article 9:7, op. cit.

  45. Article 9:5, op. cit.

  46. Article 2:10, op. cit.

  47. Article 2:59, op. cit.

  48. Article 9:10, op. cit.

  49. Articles 9:13, 9:14 and 9:17, op. cit.

  50. Articles 9:14 and 9:17, op. cit.

  51. Article 9:3, op. cit.

  52. Article 3:47, op. cit.

  53. Article 10:5, op. cit.

  54. Article 10:6, op. cit.

  55. Articles 9:4 and 10:4, op. cit.

  56. Articles 9:4 and 10:4, op. cit.

  57. Article 1:2, op. cit.

  58. Articles 2:41 to 2:48, op. cit.

  59. Article 1:2, op. cit.

  60. Article 2:113, op. cit.ions.

  61. Article 9:3, op. cit.

  62. Article 3:98, op. cit.

  63. Article 2:5, op. cit.

  64. Article 3:47, op. cit.

  65. Articles 2:18 and 2:19, op. cit.

  66. https://1819.brussels/infotheque/financement-de-lentreprise/quelles-sont-les-differentes-sources-de-financement-pour-une; https://pro.guidesocial.be/articles/actualites/article/le-financement-hybride-de-l-asbl-de-quoi-parle-t-on

  67. https://finances.belgium.be/fr/asbl/dons/agr%C3%A9ment-asbl-%C3%A9tape-par-%C3%A9tape#q2.

  68. https://finances.belgium.be/fr/asbl/dons/quels_dons#q1.

  69. Article 9:22, op. cit.

  70. Article 2:109, op. cit.

  71. Article 2:113, op. cit.

  72. Article 2:118, op. cit.

  73. Article 2:122, op. cit.

  74. Article 2:122, op. cit.ciations.

  75. Article 2:132, op. cit.

  76. Article 9:12, op. cit.

  77. Article 2:109, op. cit.

  78. Article 2:110, op. cit.

  79. Articles 13:1 to 13:3, op. cit.

  80. Article 4, code de la TVA; https://www.monasbl.be/info/les-criteres-dassujettissement-la-tva.

  81. https://finances.belgium.be/fr/asbl/impots-tva/taxe-annuelle-asbl#q1.

  82. https://en.calameo.com/read/0017742951db3f660b81b?authid=bOLPDPKT2cfh

  83. Based on the number of associations and the legal requirements about the number of members required for the establishment of an association.

  84. Le poids économique des Institutions sans but lucratif en Belgique Edition 2017, https://sile.odorchai.web.ulb.be/doc/DGP/2017-2018/PUB_3490_Poids%20Eco%20ISBL_FR_DEF.pdf

  85. Le poids économique des Institutions sans but lucratif en Belgique Edition 2017, https://sile.odorchai.web.ulb.be/doc/DGP/2017-2018/PUB_3490_Poids%20Eco%20ISBL_FR_DEF.pdf

  86. Le poids économique des Institutions sans but lucratif en Belgique Edition 2017, https://sile.odorchai.web.ulb.be/doc/DGP/2017-2018/PUB_3490_Poids%20Eco%20ISBL_FR_DEF.pdf

  87. Le poids économique des Institutions sans but lucratif en Belgique Edition 2020.

  88. Le volontariat en Belgique Chiffres-clés, https://www.bonnescauses.be/media/12397/pub_3367_volontariat.pdf.

  89. https://www.lecho.be/economie-politique/belgique/bruxelles/bruxelles-risque-de-voir-filer-les-asbl-internationales/10012806.html