Quelle est la meilleure forme juridique pour la création d'une société en tant qu'entrepreneur? Etude comparative entre la SA et la SRL.

Abstract

The new « Code des sociétés et associations » or CSA has introduced several important innovations. The « Société à responsabilité limitée » (hereafter SRL) finds itself in a position to become the real central company in the Belgian legal system. A comparison will be made between the « Société anonyme (hereafter SA) and the SRL as the regimes of these two legal forms are similar and comparable in many respects. To determine whether the plans of the legislator are translated into reality, the purpose of my study is to analyze all the most important new aspects and the decisive points when choosing a legal form. The goal is finally to set up a comparison of these many points between the regimes applicable to the SRL and to the SA. The focus of the analysis will be set on the following different categories, namely: constitution, governance, the capital and the strengthened financial plan, the distributions. This part includes the solvency and liquidity tests which take a very important place in this reform at the level of the SRL and deserves attention. My study then addresses the alarm bell mechanism, the types of securities and the rights attached to the shares. The resignation and exclusion of shareholders and the liability of administrators will also be covered. The new CSA has provided a lot of flexibility in general but has also strengthened certain obligations or tightened up certain supplementary regimes on a few occasions. My research thesis aims at: • Determining what guides the choice of a legal form. • Identifying precisely the novelties that have a real impact and a real vocation to be used in practice; • Identifying the obstacles to certain regimes in place that limit their use by entrepreneurs; • Proposing possible improvements to certain regimes that are not meeting with the success expected by the legislator; • Identifying new innovations that offer overly advantageous schemes or where there is a high risk of abuse. Only practice will tell whether the legislator has succeeded in his mission to make the SRL the default company at all levels: flexible, simplified, and suitable for all types of entrepreneurs. The quest for a competitive Belgian legal system at the European level starts with a solid, predictable, and competitive company law.