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Board of directors
Fulfilling the company's mission statements
In response to the financial crisis, legislation at national level aims to enhance, amongst others, the transparency of risk disclosures, monitoring and compensation practices. Many of the new rules, however, focus on the role of the board of directors. As the representatives of shareholders, boards play a key role in overseeing the organisation and ensuring that the company continues to operate in the best interests of its shareholders. Given the complexity of today’s organisations, this is no simple or straightforward task.
The board of directors is considered the highest decision-making organ within any organisation and is responsible for both the strategy as well as the monitoring of the organisation. The Belgian Companies Code states that every Belgian limited liability company (‘NV’ / ‘SA’) is governed by a board of directors that can perform any act that is necessary or useful for the realisation of the company’s goal. Both Belgian corporate governance codes, (the Corporate Governance Code 2009 and the ‘Code Buysse’) pay particular attention to the role, composition and tasks of the board of directors.
The board of directors of a limited liability company is a collegial organ that must be composed of at least three persons, unless there are only two shareholders in which case the board composition can be limited to two. The members of the board of directors are nominated by the general meeting of shareholders and can be dismissed by them at all times without any motive ('ad nutum').
The Belgian corporate governance code 2009 for listed companies states that the board's composition should ensure that decisions are made in the corporate interest. It should be determined on the basis of gender diversity and diversity in general, as well as complementary skills, experience and knowledge. The board should be small enough for efficient decision-making and large enough for its members to contribute experience and knowledge from different fields and for changes to the board's composition to be managed without undue disruption. At least one half of the board should be comprised of non-executive directors and at least three of them should meet the independence requirements stipulated in Appendix A of the Code (that concurs with the provisions of the Belgian Companies Code). The chairman is responsible for the leadership of the board.
In July 2011 the Belgian Parliament adopted a law on gender quota (Nl / Fr) for listed and large federal state-owned companies. By 2017, the board of directors must be constituted of at least a 1/3 composition of one gender and a 2/3 composition of the other gender. Each company is also required to annually disclose in the corporate governance statement attached to their annual report which efforts were made to ensure sufficient gender diversity in the board.
The ‘Code Buysse’ for non-listed companies states that the necessary complementarity with regards to competencies, experiences, knowledge and diversity must be taken into account when composing the board of directors. The Code further recommends to include (ideally) several external directors as board members who do not represent management nor the controlling shareholders. Without necessarily being totally independent, external directors should be capable to look at the company in an objective manner.
Role and work
From a corporate governance point of view, the board has a double role, with regard to strategy and control. It also has an important role in the choice of the management structure and the appointment of the CEO.
According to the Belgian corporate governance code 2009, it is the board's role to pursue the long-term success of the company by providing entrepreneurial leadership and enabling risks to be assessed and managed. In that respect, the board should decide on the company's values and strategy, its risk appetite and key policies. The board should ensure that the necessary leadership, human and financial resources are in place for the company to meet its objectives. In translating values and strategies into key policies, the board should also pay attention to corporate social responsibility, gender diversity and diversity in general. With respect to its monitoring responsibilities, the board should at least:
- Review executive management performance and the realisation of the company's strategy;
- Monitor and review the effectiveness of the board's committees;
- Take all necessary measures to ensure the integrity and timely disclosure of the company's financial statements and other material financial and non-financial information disclosed to the shareholders and potential shareholders;
- Approve a framework of internal control and risk management set up by the executive management;
- Review the implementation of this framework, taking into account the review made by the audit committee;
- Supervise the performance of the statutory and/or registered auditor and supervise the internal audit function, taking into account the review made by the audit committee;
- Describe the main features of the company's internal control and risk management systems, to be disclosed in the Corporate Governance Statement;
The board should decide on the executive management structure and determine the powers and duties entrusted to the executive management. Finally, with regard to shareholders, the board should foster - through appropriate measures - an effective dialogue with the shareholders and potential shareholders based on a mutual understanding of objectives and concerns. It should also ensure that its obligations to all shareholders are understood and met. It should account to the shareholders for the discharge of its responsibilities.
The ‘Code Buysse’ for non-listed companies describes the role and tasks of the board of directors as follows:
- Decision-making with regard to important and strategic issues, such as the approval of the strategy;
- Ensuring that both the management and shareholders take decisions within the scope of their respective powers;
- Nomination of the CEO and the executive management;
- Providing advice to the CEO and the executive management;
- Financial and operational control, including the creation and supervision of a system of internal controls;
- Developing the dividend policy to be presented to the general assembly for approval.
Challenges facing boards in the current environment
- Overseeing enterprise risk management;
- Focusing on executive compensation programs and related regulations;
- Ensuring corporate strategy will achieve long-term value creation;
- Addressing increased levels of shareholder activism;
- Responding to environmental and business sustainability concerns;
- Ensuring the CEO succession planning process will contribute to the long-term stability.