If you wish to set up a company in the Netherlands or your company wants to set up a subsidiary in the Netherlands, a number of things should be taken into account. Corporate/M&A lawyer Dirk de Waard, partner at VIOTTA, sets out (i) legal form, (ii) notary, (iii) shareholder and director liability and (iv) UBO register.
Legal form for business entity
The ‘besloten vennootschap (B.V.)’ is a private limited company and is the most common legal form used in the Netherlands for conducting a business. A B.V. is a business entity with legal personality. The equity is divided into shares owned by shareholders. One or more directors, appointed by the shareholders during a shareholders meeting, run the business on a day-to-day business. A supervisory board can be appointed to monitor its board of directors in a two-tier board structure, or the supervisors can be part of the one-tier board structure as non-executive directors.
When setting up a B.V. as a subsidiary in the Netherlands, a director can also be a legal entity. There is no legal requirement to the number of directors for B.V.’s.
The ‘Naamloze vennootschap (N.V.)’ is a public limited company mostly used for large companies. The the most common legal form for a company that has its shares listed on the Dutch stock market: the Amsterdam Stock Exchange (AEX). For a N.V. to be listed on the stock exchange, it must meet a number of conditions. For example, it must be in existence for more than 5 years, the equity must be at least equal to EUR 5 million and the total value of the shares must be more than EUR 5 million. The company also must have been profitable for at least 3 years in the past 5 years.
Commercial partnerships (“Vof”), a foundation (stichting) or a sole proprietorship (“eenmanszaak”) are also legal forms to be considered. Please click on the following link for more information.
Incorporating a Dutch limited company (BV or NV)
A B.V. and a N.V. are incorporated by a notarial deed. A civil-law-notary will:
- Draw up the articles of association;
- For a B.V. a starting capital of € 0.01 is sufficient, for a N.V. an investment of at least € 45.000 is required
- The limited company needs to be registered in the Dutch Commercial Register (het handelsregister van de Kamer van Koophandel).
- The limited company is required to register at the Dutch Tax and Customs Administration (Belastingdienst).
It is possible to start your business before you have finalized the process of incorporation, provided you are registered in the Dutch Commercial Register and a civil-law-notary certifies to be handling the incorporation on your behalf. You may then operate as a ‘private limited company under incorporation’ (in Dutch: BV in oprichting or BV io).
Shareholders and directors liability
The B.V.’s and N.V.’s are the most common form of legal entity due to the limitation of liability of the shareholders and directors. In principle, shareholders are not liable for acts of the company and their liability is limited to the amount invested as capital.
If a director does not fulfill his duty with care and attention, the company may hold him liable (internal directors’ liability) for damages. This will be the case if there is proof of serious misconduct. If the limited liability company is declared bankrupt, the curator will investigate the reasons for the bankruptcy. If the director has fulfilled his duty improperly, the curator will hold the director liable for all debts of the company that cannot be paid out after liquidating all the remaining assets of the company.
Private limited companies that register in the Dutch Commercial Register have to include their ‘ultimate beneficial owner(s)’ or UBOs in the UBO register. This is one of the measures taken in accordance with the Prevention of Money Laundering and Terrorism Financing Act (Wet ter voorkoming van witwassen en het financieren van terrorisme, Wwft). Persons who own more than 25% of the company shares, more than 25% of the voting rights, and/or have the ultimate say in company matters are considered UBOs. Companies that were already registered in the Commercial Register will have until mid 2022 to register their UBOs.
Law firm in Amsterdam specialized in Dutch corporate law
Incorporating a Dutch subsidiary means considering various options and legal matters to take care of. You will need legal advice concerning which legal entity to use and you will need legal assistance to incorporate the company by the civil-law-notary when drawing up the articles of association. Furthermore, VIOTTA can assist you in drafting contracts, such as a shareholders agreement, the general terms & conditions and franchise agreements. If you have any questions, please do not hesitate to contact us.
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