A new act and a special majority act of 14 October 2018 considerably broaden the scope of the obligation to file a list of mandates. Henceforth, the remunerated members of boards of directors, advisory councils and management boards of legal persons over which public authorities have a dominant influence will have to declare their mandates. Government commissioners and advisers to members of the Cabinet also fall under the new obligations. What is also new is that the list of mandates will have to include some detailed information regarding the remuneration. Henceforth, the Audit Court will not only publish the lists of mandates in the Belgian Official Gazette, but also on its website. Violation of these rules can give rise to a penal or administrative sanction. With these new rules, the legislator aims to achieve greater transparency with regard to public mandate holders, but the broad scope of the new rules also gives rise to many questions.
Outline of the existing rules
Under the act and the special majority act of 2 May 1995, politicians and senior public servants were required to file (i) an annual list of mandates and (ii) a statement of assets when accepting their function, nomination or mandate. This statement had to be renewed every six years for functions with an unlimited duration or a duration of more than six years.
These obligations applied to members of the Cabinet, the chiefs of staff and deputy chiefs of staff of members of the Cabinet, members of Parliament, a number of senior public servants and the directors and members of the management board of intermunicipal and interprovincial associations. The members of the council of regents and the council of censors of the National Bank of Belgium, the members of the management committee of the RSZ/ONSS and the general committee of RIZIV/INAMI also fell within the scope of these obligations. The special majority act provided for the same obligation for the counterparts of these persons in the communities and the regions.
Significant broadening of the scope as from 1 January 2019
The act and the special majority act of 14 October 2018 considerably broaden the scope ratione personae of the obligation to deposit a list of mandates as from 1 January 2019.
First, government directors will be included under the new provisions. This includes the members (if remunerated) of the boards of directors, advisory councils and management boards of legal persons over which one or several public authorities have a dominant influence. It also includes members of the boards of directors, advisory councils and management boards of legal persons not dominantly influenced by the government, if the person concerned "is part of these bodies pursuant to a decision of a public authority". This is a potentially broad category.
Secondly, government commissioners ("regeringscommissarissen"/"commissaires de gouvernement") will also fall within the scope of the new regulations.
Lastly, advisers to the members of the Cabinet are also covered by the new rules. The legislator focuses only on advisers. Personnel in charge of logistics or persons appointed following a public procurement procedure are not included.
Legal persons dominantly influenced by public authorities
According to the new legislation, a legal person is dominantly influenced by public authorities when one or more public authorities
- either conclude a management agreement with the legal person;
- or appoint, directly or indirectly, more than the majority of the members of its directing, managing or executive body or appoint several persons exercising control among them;
- or possess, directly or indirectly, the majority of its capital;
- or possess the majority of the votes attached to the shares issued by the legal person.
All of this leads to the finding that the new rules will have very broad and far-reaching scope. Not only "classic" state-owned enterprises or public limited liability companies of public law, but also companies with a private form in which the government only has an indirect dominant influence, fall within their scope.
As was the case with the mandatory remuneration report for companies controlled by the government (see Eubelius Flash 23 May 2018 and Eubelius Spotlights June 2018), it is to be expected that a large number of directors of private companies with a government shareholder upstream in the chain of control will find, to their surprise, that they fall under the new rules.
Furthermore, the scope is not limited to companies. Other legal persons, such as associations or sui generis entities are included as soon as one of the four conditions for determining whether there is a dominant influence is met.
Apart from that, the dominant influence does not have to be exercised by the federal government, but can also be exercised by or with other public authorities, such as the communities, the regions, the provinces and the municipalities.
Disclosure of remuneration
Another new requirement is that the declaration of mandates must state the amount of remuneration.
For public mandates and functions, the nominal amount of the remuneration must be included in the list of mandates.
For other ("private") activities, the global amount must be indicated within a range. More specifically, the "order of the gross annual amount that is directly or indirectly attributed" must be situated as follows: (i) not remunerated, (ii) between EUR 1 and EUR 5,000 gross per year; (iii) between EUR 5,001 and EUR 10,000 gross per year, (iv) between EUR 10,001 and EUR 50,000 gross per year, (v) between EUR 50,001 and EUR 100,000 gross per year, and (vi) more than EUR 100,000 gross per year, in which case the amount must be specified and rounded off to the nearest hundred thousand.
The new rules do not, however, require a declaration of assets to be filed.
Other new features
It will be possible to file the list of mandates electronically, and the Audit Court ("Rekenhof"/"Cour des Comptes") will publish the lists on its website.
Failure to file a list of mandates can still be punished with a penal sanction, as was previously the case. Furthermore, the Audit Court can also impose an administrative fine for violations.
Entry into force on 1 January 2019
The new legislation enters into force on 1 January 2019. The first lists of mandates under the new legislation will have to be filed before 1 October 2019.