On May 6th, the Official Gazette has published the law on implementing the SRD II – Directive (EU) 2017/828. Part of the Directive will be implemented by changing the newly introduced Belgian Code on Companies and Associations (BCCA). The aim of SRD II is to positively influence the involvement of long-term shareholders and increase transparency in listed companies. As a general observation, one can say that the Belgian Act faithfully transposes the provisions of the European directive.
In this newsletter we will further elaborate on the legal provisions foreseen in relation to the disclosure of the remuneration of the (Non-) Executive Members in listed companies.
New: Binding vote on the remuneration policy & disclosure
As portrayed in the SRD II, the remuneration policy needs to be approved by the shareholders at the general shareholders meeting at least every 4 years or at the occasion of every material change to the policy. Belgium does not deviate from the binding vote of shareholders on the remuneration policy. This means that (non-)executives can only receive remuneration in accordance with the company’s approved remuneration policy.
After the vote on the remuneration policy at the general shareholder meeting, this policy, as well as the date and the result of the vote, is made public on the company’s website without delay, and should remain freely available to the public for at least the period during which the remuneration policy applies.
The introduction of the public disclosure of the approved remuneration policy in the BCCA is new for Belgian listed companies and must be submitted for the first time to the shareholders approval at the latest on the general meeting that deliberates on the annual accounts and the annual report of the first financial year starting after 30 june 2019.
New: Remuneration report: extension of individual pay disclosure & pay ratio
Shareholders also have their word to say on the remuneration report by an advisory vote at the annual general meeting. Under SRD II, the compensation of all company managers will have to be reported on an individual basis. Until today, the individual reporting in Belgium was limited to the CEO and non-executive directors.
The content of the remuneration report will have to be more extensive and explicit to comply with SRD II. In particular, the report will have to address the total remuneration package (including fixed and variable remuneration, pension and fringe benefits), how this complies with the remuneration policy and the long-term strategy of the company, the ratio of fixed to variable remuneration, information on how the performance criteria have been attributed. Furthermore the report needs to enlighten on the number of shares and stock options offered or assigned and their conditions. With regard to the termination of the collaboration, the report will clarify the severance pay and the basis that has been used for the calculation thereof. When necessary, the information on how to reclaim variable remuneration and lastly, information on the possibility to deviate from the remuneration policy. The report will have to explain how the shareholders’ vote on the remuneration report was taken into account and explain the changes in directors’ pay in relation to the evolution of the company’s performance and employees’ average pay during the period under examination. The remuneration report of listed companies will from now on have to portray the gap between the highest and lowest paid salary in the company.
The above measures have been translated into the Belgian law by the “say on pay” principle and positively results in shareholders playing a greater role in influencing directors’ remuneration.
In light of COVID-19, we predict that the principles of SRD II will gain importance and most definitely the principles on remuneration and transparency especially if discretion would be applied by Boards. If you want more information or assistance in preparation of future AGMs please do not hesitate to contact Bart Van den Bussche or Bart Lombaerts.
For more insights on the Say on Pay introduced by SRD II, you may consult also our Corporate governance and executive pay report published end 2019.