DUTCH UPDATE – New Legislation on Management and Supervision of Dutch Companies
- New legislation, expected to become effective on July 1, 2012, introduces for the first time one-tier Dutch board structure, a single board comprising both executive and non-executive directors, as an alternative to the historical Dutch two-tier board structure where there is a management board and a separate supervisory board.
- Once the new bill becomes law, limitations on the power of managing directors to represent the company externally in case of a conflict of interest as included in the articles of association will cease to be effective.
- The Bill puts limitations on the number of supervisory positions that a managing director or a supervisory director of an NV or a BV that qualifies as a large company (“Large Company“) may hold.
The Bill on Management and Supervision of Dutch Companies (the “Bill“) was adopted by the First Chamber of the Dutch Parliament on 31 May 2011 and is expected to enter into force on 1 July 2012.
The Bill introduces statutory provisions on the one-tier board structure, a single board comprising both executive and non-executive directors. This structure is an alternative to the two-tier board structure where there is a management board and a separate supervisory board. The bill provides a one-tier board structure for a public company with limited liability (naamloze vennootschap) (“NV”) and for a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) (“BV”). Similar to supervisory directors in a two-tier board, non-executive directors in a one-tier board can only be natural persons. The one-tier board structure will also be available for companies that are subject to the structure regime (structuurregime).
A one-tier board requires a basis in the articles of association. The tasks of the executive and non-executive directors in a one-tier board however, may be allocated under or pursuant to the articles of association, provided that the general meeting stipulates whether a director is appointed as executive or as non-executive director and furthermore provided that the task to supervise the performance by the directors of their duties cannot be taken away from non-executive directors. In addition, an executive director may not be allocated the tasks of (i) chairman of the board, (ii) fixing the remuneration of executive directors, or (iii) nominating directors for appointment. Nor may an executive director participate in the adoption of resolutions (including deliberations in respect of these) with regard to the remuneration of executive directors. Tasks that have not been allocated fall within the power of the board as a whole.
Regardless an allocation of tasks, all directors remain collectively responsible for proper management. All directors will be jointly and severally liable for failure of one or more co-directors. An individual director is only exempted from liability if he proves that he cannot be held seriously culpable for the mismanagement and that he has not been negligent in preventing the consequences of the mismanagement. In this regard a director may, however, refer to the allocation of tasks between the directors. In view of this potential liability of directors, especially non-executive directors for the day-to-day management, it is imperative that the tasks within the one-tier board be allocated precisely.
The requirement that a binding nomination for the appointment of a member of the management board or supervisory board of an NV or a BV consists of at least two persons for each vacancy will be abolished.
Conflicts of interest
The Bill amends the statutory provisions on conflicts of interest of members of the management board of an NV or a BV. Whereas current law provides for a restriction of the power to represent the company externally, the Bill departs from the external effect and proceeds on the principle that conflicts of interests have to be dealt with internally. It provides that a member of the management board may not participate in the adoption of resolutions (including deliberation in respect of these) if s/he has a direct or indirect personal conflict of interest with the company and its related enterprise. If all members of the management board have a conflict of interest, the resolution concerned will be adopted by the supervisory board. Failing a supervisory board, the resolution will be adopted by the general meeting, unless the articles of association provide otherwise. A similar provision applies to members of the supervisory board.
If a managing director or a supervisory director does not comply with the provisions on conflicts of interest, the resolution concerned is subject to nullification (vernietigbaar) and the managing director or supervisory director concerned may be held liable towards the company.
Once the Bill becomes law, limitations on the power of managing directors to represent the company externally in case of a conflict of interest as included in the articles of association will cease to be effective. Transactions that were entered into before the Bill became law and in which a managing director had a conflict of interest will, however, be assessed on the basis of the old rules on conflicts of interest and may be ratified by the general meeting.
Limitation on number of supervisory positions
The Bill puts limitations on the number of supervisory positions that a managing director or a supervisory director of an NV, a BV or a foundation (stichting) that qualifies as a large company (“Large Company”) may hold. Other Dutch legal entities, such as the association (vereniging) and the cooperative (coöperatie), will not be affected. Foreign legal entities and their supervisory position will also not be affected. An NV, BV or foundation qualifies as a Large Company if at the end of the financial year it meets at least two of the following criteria:
- the value of the assets according to the balance sheet with explanatory notes is, on the basis of acquisition and manufacturing costs, more than EUR 17.5 mln;
- the net turnover is more than EUR 35 mln;
- the average number of employees is 250 or more.
The Minister of Public Safety and Justice has recently submitted to the Second Chamber of the Dutch Parliament a remedial act which clarifies that, when assessing whether the criteria for qualifying as a Large Company are met, the point of departure should be the financial figures on a consolidated basis as at the balance sheet date. Furthermore a transitional regime will be introduced which provides that the limitations on the number of supervisory positions will only apply to an NV, BV or foundation that has qualified as a Large Company for a period of at least two consecutive financial years. Also, it is proposed that the participation in the decision-making process by a managing director or a supervisor director who holds more than the number of positions permitted will not have any effect on the legal validity of such decision-making.
In addition, the limitation on the number of supervisory positions that can be held in a foundation as a result of the Bill, only applies to foundations that are subject to mandatory accounting and financial reporting requirements. As a consequence, the number of supervisory positions that can be held in foundations that do not carry on one or more businesses generating a (total) annual net turnover of EUR 4.4 mln (and are not otherwise subject to mandatory accounting and financial reporting requirements) will not be limited by the Bill. As a result, foundations that are primarily aimed at, for instance, religious, charitable or cultural objectives, will most likely be excluded from the scope of the new rules in this respect.
The Bill provides that a person may not be managing director of a Large Company if s/he holds more than two supervisory positions with Large Companies or, if s/he acts as chairman of the supervisory board/supervisory body established by the articles of association or, in the case of a one-tier board, the management board of a Large Company. Pursuant to the explanation of the Minister of Public Safety and Justice, in the case of a one-tier board, the reference to “managing director” must be considered a reference to an executive director. The term “supervisory position” refers to the position of supervisory director, non-executive director or member of a supervisory body established by the articles of association.
Furthermore, the Bill provides that a person may not be a supervisory director or, in the case of a foundation, a member of the supervisory body of a Large Company if s/he holds five or more supervisory positions with Large Companies. Acting as chairman of the supervisory board/supervisory body established by the articles of association or, in case of a one-tier board, chairman of the management board will count twice. Pursuant to the explanation of the Minister of Public Safety and Justice, in case of a one-tier board, the reference to “supervisory director” must be considered a reference to a non-executive director. Supervisory positions in Large Companies that are part of the same group will be counted as one supervisory position.
A transitional regime is provided for. A person may continue in his/her position who, at the time of the act entering into force, holds more positions than is allowed. The new rule will apply, however, to re-appointment or new appointments.
No employment agreement
Under current law, usually a double legal relationship exists between a managing director and a Dutch (listed) company: a company law relationship and an employment agreement. According to the Bill, the legal relationship between a managing director and a Dutch listed company will no longer be considered an employment agreement. This does not mean that there will be no agreement between the managing director and the Dutch listed company concerned. What the nature of such agreement will be, however, does not follow from the Bill. There are various potential scenarios, one of which is an agreement sui generis, or an agreement of assignment (overeenkomst van opdracht). The new rules apply to new situations only; existing employment agreements will be grandfathered.
The Bill includes provisions on well-balanced participation of men and women in the management boards and supervisory boards of NVs and BVs that qualify as Large Companies. The Bill provides that NVs and BVs that qualify as Large Companies should pursue that at least 30% of the seats be held by men and at least 30% of the seats be held by women, insofar as these seats are allocated to natural persons. If an NV or BV acts as managing director (“Managing Director Legal Entity”) of an NV or BV that qualifies as a Large Company, the above also applies to the Managing Director Legal Entity as well as to each NV and BV that acts as managing director of such Managing Director Legal Entity.
A well-balanced allocation of seats should be taken into account at the occasion of:
- the appointment or the nomination for appointment of managing directors;
- drafting the profile for the supervisory board’s size and composition, as well as the designation, the appointment, the recommendation and the nomination for appointment of supervisory directors; and
- drafting the profile for the non-executive directors, as well as the (nomination for) appointment and the recommendation of non-executive directors.
If a Large Company does not comply with the rules on gender diversity, it is required to set out in its annual report (i) why the seats are not allocated in a well-balanced manner, (ii) how the company has attempted to achieve a well-balanced allocation and (iii) how the company aims to achieve a well-balanced allocation in the future.
The provisions on gender diversity will apply for a limited period only; they will cease to be effective as per 1 January 2016.
The Minister of Public Safety and Justice announced to evaluate the act three years after the act’s entry into force.