4.3.6 How is the disclosure of the corporate governance statement arranged and who is accountable for this disclosure?

Principle 9 of the code and its four provisions discuss the disclosure of corporate governance information and the comply or explain principle. Belgian listed companies have to disclose two corporate governance documents: (i) the corporate governance charter on the company's website and (ii) the corporate governance statement in the annual report (Belgian Code 2009, Preamble). The charter describes the policy and the statement actual practice. The company describes in (i) its charter the main aspects of its corporate governance policy (e.g. its governance structure, the terms of reference of the board and its committees) and regularly publishes updates. The charter is made available on the company's website and specifies the date of its most recent update. Appendix F to the Belgian code states which items specifically need to be discussed in the charter (provision 9.1). In (ii) the corporate governance statement more factual information is provided relating to code compliance, the reasons for non-compliance, the remuneration report, a description of the main features of the internal control and risk management systems and a description of the composition and operation of the board (Belgian Code 2009, Preamble). The relevant corporate governance events during the year under review are described, including at least the information mentioned in Appendix F to the code (provision 9.3). Provision 9.4, moreover, states that both the charter and the statement must mention that the Belgian code has been adopted as its reference code and if the company does not comply fully with the code it should explain its reasons for non-compliance in the statement. The underlying research focuses mainly on the corporate governance statement and not the charter. Appendix F states in 9.3/1 that apart from other information the statement must include an indication of the code's provisions that were not complied with during the year and an explanation of the reasons for non-compliance. For the sake of completion as regards Belgian regulation discussing disclosure of the corporate governance statement: the Belgian code, the corporate governance statement and the comply or explain principle have - as discussed under the previous key question - also been embedded in legislation since mid-2010. Article 96 § 2 of the Code on Companies states that listed companies need to have a corporate governance statement in their annual report, stating which code is applicable and explaining for what reasons code provisions are not complied with, by means of which Directive 2006/46/EC is implemented.

With regard to the accountability for the corporate governance disclosures, no specific corporate bodies, such as a management board, are assigned. Both the code and article 96 § 2 of the Code on Companies use the term ' company'. Nevertheless the discussions and references given below and the code's preamble clarify that the board of directors is accountable for the corporate governance disclosures: "It is the board's responsibility to ensure the accuracy and completeness of the corporate governance charter and the corporate governance statement (Belgian Code 2009, Preamble). No specific sanctions for non-compliance with the code or article 96 § 2 of the Code on Companies are laid down in legislation. Hence, in case of non-compliance with article 96 § 2, article 528 of the Code on Companies (joint liability) could be applicable (De Wulf, Van der Elst et al. 2010, p. 33) (Van der Elst 2006, p. 11): the directors are jointly and severally liable, whether to the company or to third parties, for any damage resulting from a violation ofthe provisions ofthis Code on Companies or the articles of association of the company. In a law proposed in 2005, it was even suggested that the following be added to article 528: "the rules concerning corporate governance to which the company has committed itself . However, this proposal was considered too vague and too far-reaching and never became actual legislation. Van der Elst and De Wulf et al. wonder whether articles 527 and 1382 of the Code on Companies (liability for mismanagement and extra-contractual liability) could be applicable in the case of false statements in the corporate governance statement (De Wulf, Van der Elst et al. 2010, p. 33) (Van der Elst 2006, p. 11). Although already well thought-out, the discussion on accountability and liability is still ongoing.