Question discussed at the 2006 general meeting
Although the Bank is set up as a listed public limited liability company, it is, first and foremost, a central bank entrusted with tasks in the public interest, especially that of ensuring monetary and financial stability. As such, it is governed by a specific legal framework, in which the general provisions relating to companies incorporated under common law only play a supplementary role.
This applies more especially to the Lippens Code which, even for listed ordinary public limited liability companies, must also be regarded as an addition to existing Belgian law from which it may not derogate.
As a result, the Lippens Code may not in any way be cited in order to deviate from the Bank’s specific management structure, as provided for by the law. In particular, the Bank has specific organs, special rules regarding the appointment of members of these organs, restricted powers for the general meeting of shareholders and specific rules in terms of supervision; this structure is justified by the specific nature of the Bank as a central bank of a country belonging to the Eurosystem.
This specific management structure is at least as restricting as the Lippens Code, indeed more restricting with respect to some aspects, such as supervision. The values underlying corporate governance apply unreservedly to the Bank’s structures and operating rules.
This is the reason why it is inappropriate to refer to codes of corporate governance which do not apply to the Bank, such as the OECD Guidelines on Corporate Governance of State-owned Enterprises for example.
Comply or explain
This management structure and these specific operating rules are explained in the "Governance Statement" in the Annual Report 2005 as well as on the Bank’s website.
It is very clear from this declaration that the Lippens Code, which is based on the management framework typical of an ordinary listed company, is not suited to the specific situation of the Bank. Since the difference is one of management structure, it is not advisable to look in detail at the recommendations of the Lippens Code from a "comply or explain" viewpoint.
Council of Regency
The Council of Regency is a very specific organ. In effect, the law confers on the Council of Regency powers which, in companies incorporated under common law, are the responsibility of the Board of Directors or the general meeting of shareholders.
The Council of Regency, which is made up of the governor, the directors and ten regents – it therefore comprises mainly non-executive directors – plays a key role in terms of appointments, remuneration and supervision, and does so on a more continuous basis than the specialist committees of ordinary companies, in view of the frequency of its meetings.
In accordance with the Organic Law and the Statutes, the approval of the annual accounts and, consequently, the discharge of members of the Board of Directors, are attributed to the Council of Regency.
Thus, in accordance with the Bank’s legal management framework, the powers of supervising the board are the responsibility of a specific organ representing the interests of the Belgian community as a whole as opposed to solely private interests. Of course, this principle is fully justified given the Bank’s public interest tasks.
As far as the budget and remuneration are concerned, the Council of Regency is assisted by the Committee for the Budget and Directors’ Remuneration.
This committee advises the Council of Regency on remuneration and the pensions of the members of the Board of Directors. It is chaired by the vice-governor in his capacity as a director responsible for the Controlling department and is otherwise composed of two regents, two censors and the Representative of the Minister of Finance.
The latter represents the sovereign State (public interest) and in no way the interests of the State as shareholder. The general meeting of shareholders has no powers with regard to the remuneration of the Bank’s organs.
Request for inclusion of proposals on the agenda
The Lippens Code stipulates that the threshold for a shareholder being allowed to submit proposals to the general meeting must not be set at a level higher than 5 p.c. of the capital.
The Bank’s Statutes contain a similar provision which states that the general meeting shall deliberate concerning proposals, signed by five members, and which have been brought to the attention of the Council of Regency at least 10 days before the meeting, in order to be included in the agenda.
This possibility of having proposals included on the agenda must nevertheless be considered in light of the limited powers of the general meeting. Since the powers of shareholders are limited by law, the scope of this provision is therefore very limited, in accordance with the Bank’s specific governance structure.
Under point 1.2.5 of its "Governance Statement", the Bank explains the supervisory mechanisms for its own activities. Furthermore, the Bank is subject to the supervision exercised by the CBFA on listed companies.
Of course, just like the members of the Board of Directors, the regents and censors are subject to the legal framework with regard to insider trading and the obligation, established by the laws of 2 May 1995 and 26 June 2004, to provide a list of posts held and a declaration of assets, an obligation which they have met.
The Bank grants its auditor an annual contractual fee of 50,000 euro (excluding VAT) for auditing the annual accounts. The auditor was selected following a public tender, respecting all of the applicable rules.