Dutch
Civil Code
Book 2 Legal Persons
Article 2:1 Public legal persons
- 1. The State,
the Provinces, the Municipalities, the Water Boards and all other bodies
to which legislative power has been granted under the Dutch Constitution
have legal personality.
- 2. Other bodies
charged with governmental duties only have legal personality if this results
from what has been specified by or pursuant to law.
- 3. The below
listed Articles of the present Title (Title 2.1), except Article 2:5,
do not apply to public legal persons as meant in the previous paragraphs.
Article 2:2 Churches and other religious communities
- 1. Religious
communities and their independent subdivisions and bodies in which they
are united, have legal personality.
- 2. They are
governed by their own charter insofar the rules thereof are not in conflict
with law. With the exception of Article 2:5, the below listed Articles
of the present Title (Title 2.1) do not apply to them. Nevertheless, these
Articles may be applied accordingly as far as this is in agreement with
the charter of the religious community and the nature of the mutual relationships
within that community.
Article 2:3 Private legal persons
Associations ('verenigingen'), Cooperatives ('coöperaties'),
Mutual Insurance Societies ('onderlinge waarborgmaatschappijen'),
Open Corporations*) ('naamloze
vennootschappen'), Closed Corporations**)
'besloten vennootschappen') and Foundations ('stichtingen')
have legal personality.
*) Open Corporations are the equivalent of public limited companies under English law, i.e. companies with free tradable shares
**) Closed Corporations are the equivalent of private limited companies under English law, i.e. companies with restricted tradable shares.
Article 2:4 Defective formation and (property of) non-existing legal persons
- 1. A legal person cannot come to existence
in the absence of a deed signed by a notary insofar the law requires such
a deed for the formation of this type of legal person. A deed signed by
a notary, which is not authentic, shall only prevent the formation of
the intended legal person if this legal person would have been called
into existence on the basis of a testamentary disposition (last will)
laid down in that deed.
- 2. The nullification of a voidable juridical
act through which a legal person has been formed, does not affect the
existence of that legal person. The invalidity of the participation of
one or more founders of the legal person does in itself not affect the
validity of the participation of the remaining founders.
- 3. Where property has been created in the
name of a non-existing legal person, the court shall appoint, upon the
request of an interested party or of the Public Prosecution Service, one
or more liquidators. Article 2:22 shall apply accordingly.
- 4. Property
created in the name of a non-existing legal person shall be liquidated
(wound up) in the same way as that of a dissolved legal person of the
intended type. The persons who have acted as Directors of the non-existing
legal person are joint and several liable for all debts belonging to the
before mentioned property as far as these debts have become due and demandable
during the period in which these persons acted as Director. These persons
are also liable for debts arisen from juridical acts which have been performed
[by themselves or others] during that period on behalf of that property,
as far as no other person is liable for these debts on the basis of the
previous sentence. When no person can be made liable for a debt on the
basis of one of the two previous sentences, the persons who have performed
the act which caused the debt are joint and several liable for it.
- 5. If a valid
legal person has been formed in order to make it the legal successor of
the property created in the name of a non-existing legal person, then
the court may order, upon request, that this property does not need to
be liquidated (wound up), but may be brought into the validly formed legal
person.
Article 2:5 Equalisation of legal persons with natural persons
As far as it concerns the law of property, a legal person is tantamount
(equal) to a natural person, unless the contrary results from law.
Article 2:6 Publication of information and consequences of a lack of publication
- 1. Changes made to the articles of incorporation
or the internal regulations (by-laws) of a legal person, that have to
be published by virtue of the present Book (Book 2 of the Civil Code),
cannot be invoked against counterparties and third persons who were unaware
of these changes as long as that publication has not been made and, in
the event of a change of the articles of incorporation, as long as the
legally required publication of the changed articles of incorporation
has not been made. The same applies in respect of an appeal to the fact
that a legal person is dissolved as long as its dissolution has not been
published in the legally required way.
- 2. Where the articles of incorporation indicate
that the Board of Directors or a Director has no power to represent the
legal person in performing a juridical act, an appeal to such lack of
power, that normally would be permitted according to law, has no effect
towards a counterparty who was unaware of the lack of power if the limitation
or exclusion of that power was not published in the legally required way
at the moment on which that juridical act was performed. The same applies
to an appeal to a limitation of the power of representation of others
than Directors to whom such power has been granted under the articles
of incorporation.
- 3. The legal person cannot invoke the incorrectness
or incompleteness of the data registered at the commercial register against
a counterparty who was unaware of this incorrectness or incompleteness.
A correct and complete registration elsewhere or a publication of the
articles of incorporation [in the commercial register] is in itself not
sufficient evidence that the counterparty was aware of the incorrectness
or incompleteness.
- 4. As far as
the law does not provide otherwise, the counterparty of a legal person
cannot appeal to his unawareness of a fact which has been published in
the legally required way, unless this publication has not been made in
each way required by law [when more registrations in the commercial register
or a registration in another public register is required] or unless not
the legally required notification of such publication has been made.
- 5. The two preceding paragraphs do not apply
to judicial decisions registered in the bankruptcy register or the register
for official moratoriums on payment.
Article 2:7 Lack of power to act for the legal person itself (ultra vires
doctrine)
A juridical act performed by a legal person is voidable if, due to this
act, the purpose (objective) of the legal person, as described in its
articles of incorporation, has been exceeded and the counterparty was
aware or ought to have been aware of this without any research of his
own; only the legal person may invoke this ground of voidability.
Article 2:8 Reasonableness and fairness within the organisation of the
legal person
- 1. The legal person and those who pursuant
to law and the articles of incorporation are involved in its organization,
must behave towards each other in accordance with what is required by
standards of reasonableness and fairness.
- 2. A rule applicable between them pursuant
to law, common practice (usage), the articles of incorporation, the internal
regulations (by-laws) or a resolution (decision of a body of the legal
person) has no effect as far as this would be unacceptable in the given
circumstances to standards of reasonableness and fairness.
Article 2:9 Performance of tasks and liability of Directors
- 1. Each Director is responsible towards the
legal person for a proper performance of the tasks assigned to him. All
duties of Directors that have not been assigned by or pursuant to law
or the articles of incorporation to one or more other Directors, shall
belong to the duties (tasks) of a Director.
- 2. Each Director is responsible for the general
conduct of affairs. He is liable for the full consequences of an improper
performance of duties, unless, also in regard of the tasks assigned to
the other Directors, he is not gravely to blame for it and he neither
has been negligent in taking measures to avert the consequences of that
improper performance of duties.
Article 2:10 Bookkeeping
- 1. The Board of Directors is obliged to
keep accounting records of the assets and liabilities of the legal person
and of everything regarding the activities of the legal person in accordance
with the requirements arising from these activities, and it must store
the books, documents and other data storage media in such a way that at
all times the rights and obligations of the legal person can be known.
- 2. Without prejudice to other Titles of this
Book (Book 2 of the Civil Code), the Board of Directors must, within six
months after the end of the accounting year, draw up the balance sheet
and the profit and loss account (income statement) of the legal person.
- 3. The Board of Directors is obliged to store
the books, documents and other data storage media meant in paragraph 1
and 2 for a period of seven years.
- 4. With the exception of the balance sheet
and the profit and loss account (income statement), that have been put
on paper, all written information and information placed on data storage
media may be transferred to and stored on (other) data storage media,
provided that the transfer results in a correct and complete reproduction
of the information and that this information is available and can be made
readable throughout the entire storage period within a reasonable time.
Article 2:10a Accounting year
The accounting year (financial year) of a legal person is a calendar year,
if no other accounting year (financial year) has been designated in the
articles of incorporation of that legal person.
Article 2:11 Liability of a legal person in its capacity as Director of
another legal person
Where a legal person is liable in its capacity as Director of another
legal person, also the persons who, at the moment on which this liability
arose, are a Director of the first mentioned legal person, shall be joint
and several liable.
Article 2:12 Denial of voting rights in the articles of incorporation
The right to vote on a resolution through which the legal person grants
one or more rights to certain persons other than in their capacity as
member, shareholder or member of a body, can be denied in the articles
of incorporation to these persons and to their spouses, registered partners
or blood relatives in the direct line; the same applies to the right to
vote on a resolution through which the legal person gratuitously releases
certain persons from a debt.
Article 2:13 Validity of votes; voting result
- 1. A vote is null and void in the same situations
as in which a one-sided (unilateral) juridical act is null and void; a
vote is never voidable and it is therefore not possible to nullify it
on a ground of voidability.
- 2. Where a person without legal capacity
is a member of an Association ('vereniging'), he may exercise
his voting right himself insofar the articles of incorporation of that
Association ('vereniging') do not oppose to this; if the articles
of incorporation do oppose, the right to exercise his voting right belongs
to his legal representative.
- 3. Unless the articles of incorporation
provide otherwise, the chairman’s decision on the voting result,
expressed in the meeting of a body of the legal person, is decisive. The
same applies with regard to the chairman’s decision on the content
of a resolution, expressed in the meeting of a body of the legal person,
insofar votes are taken on an unwritten proposal.
- 4. Where the correctness of the decision
of the chairman is disputed immediately after this decision has been expressed,
the votes are taken once again if this is requested by the majority of
the meeting or, when the original voting did not take place by call or
not in writing, by one of the persons present at the meeting who is entitled
to vote. As a consequence of this new voting the legal effects of the
original voting cease to exist.
Article 2:14 Null and void resolutions; ratification
- 1. A resolution (decision) of a body of
a legal person that is contrary to law or the articles of incorporation
is null and void, unless the law indicates otherwise.
- 2. Where a resolution is null and void because
it was passed by a body of a legal person without an act of or notification
to another body of that legal person, as required pursuant to law or the
articles of incorporation, it may be ratified by that other body. Where
a requirement (form) is set for the absent act, this requirement (form)
shall apply as well to the ratification of the resolution.
- 3. A ratification is no longer possible
after the expiration of a reasonable period which set for this purpose
by the body that had passed the resolution or by the counterparty to whom
the resolution was addressed.
Article 2:15 Voidable resolutions
- 1. Without prejudice to what has been specified
elsewhere in law with regard to the possibility of a nullification of
a resolution (decision) on a ground of voidability, a resolution of a
body of a legal person is voidable:
a. if it has been passed in conflict with the
provisions of law or the articles of incorporation that regulate the making
of resolutions;
b. if it is in conflict with the standards
of reasonableness and fairness imposed by Article 2:8;
c. if it is in conflict with an internal regulation
(by-law) of the legal person.
- 2. The provisions containing the requirements
to which Article 14, paragraph 2, refers, are not among those meant in
the previous paragraph under point (a).
- 3. A voidable resolution is nullified by
a judicial decision of the District Court in whose district the legal
person has its domicile:
a. upon a request submitted against the legal
person by someone who has a legitimate interest in the compliance with
the requirement which has not been observed, or;
b. upon a request of the legal person submitted,
by virtue of a resolution of the Board of Directors, against the person
who is pointed out by the provisional relief judge of the District Court
upon a request made for this purpose of the legal person; in that case
the costs of proceedings will be borne by the legal person.
- 4. When a Director submits a request in
his own name, the legal person shall request the provisional relief judge
of the District Court to appoint someone who shall act instead of the
Board of Directors in respect of the dispute.
- 5. The right to claim the nullification
of a voidable resolution ceases to exist one year after the day on which
either sufficient publicity has been given to the resolution or the interested
party has become aware of the resolution or has been given sufficient
notice thereof.
- 6. A resolution
voidable on the ground mentioned in paragraph 1, under point (a), may
be ratified by a later resolution passed to this effect [as a result the
voidable resolution will be repaired with retroactive effect to the day
on which it was passed]; that later resolution is subject to the same
requirements as the to be ratified resolution. The ratification has no
effect as long as an earlier submitted request for nullification of the
to be ratified resolution is pending. If the legal claim is awarded, then
the voidable resolution, which is nullified by the court, is regarded
to be taken once again by means of the later resolution in which it was
ratified [as a result the voidable resolution is repaired from the day
on which the later resolution was passed], unless the contrary results
from the necessary implications of that later resolution.
Article 2:16 Effect of the nullity or nullification of a resolution; protection
of third persons
- 1. When the legal person has been a party
to the proceedings, the final and binding judicial decision establishing
the nullity of a null and void resolution of a legal person or nullifying
a voidable resolution of a legal person is binding for every one, except
that the extraordinary legal actions (legal revocation and third party
objection) remain applicable. Each member or shareholder is entitled to
file a request for a legal revocation.
- 2. Where the resolution of a legal person
is a juridical act of that legal person addressed to a counterparty, or
where it is a requirement for the validity of such a juridical act, the
nullity or nullification of that resolution cannot be invoked against
that counterparty if he was not aware nor ought to have been aware of
the defect in the resolution. The nullity or nullification of a resolution
in which a Director or Supervisory Director has been appointed, may nevertheless
be invoked against the appointed person; the legal person must, however,
compensate the damage which the appointed person suffers as a result thereof,
yet only if this person was not aware nor ought to have been aware of
the defect in the resolution.
Article 2:17 Duration of the existence of a legal person
A legal person is formed (established) for an indefinite period of time.
Article 2:18 Conversion of legal persons
- 1. A legal person may convert itself into
a legal person of another type, subject to the following paragraphs.
- 2. For a conversion is required:
a. a resolution passed for this purpose in
accordance with the requirements for a resolution to amend the articles
of incorporation and, unless a Foundation ('stichting') is converted,
passed with at least nine tenths of the votes cast;
b. a resolution to amend the articles of incorporation,
and;
c. a notarial deed of conversion that includes
the new articles of incorporation.
- 3. A majority of votes as meant in the previous
paragraph, under point (a), is not required for a conversion of an Open
Corporation ('naamloze vennootschap') into a Closed Corporation
('besloten vennootschap'), or vice versa.
- 4. Where it concerns a conversion of or
into a Foundation ('stichting') or a conversion of an Open or
Closed Corporation ('naamloze of besloten vennootschap') into
an Association ('vereniging') also the authorization of the court
is required.
- 5. Only the to be converted legal person
may request the District Court to authorise the conversion, under submission
of a notarial draft of the notarial deed of conversion. The request is
denied if a required resolution is null and void or if a legal claim for
the nullification of such a resolution is pending. It is denied also when
the interests of the persons entitled to vote who have not given their
consent or of others of whom at least one person has turned to court,
have been observed insufficiently. When the conversion is subject to an
authorisation of the court, the notary will confirm in de notarial deed
of conversion that this authorisation has been given on the basis of the
draft of the notarial deed.
- 6. After the conversion of a Foundation
('stichting') the articles of incorporation must show that the
Foundation's property, as it was on the moment of conversion, and the
fruits (benefits) thereof may only with authorisation of the court be
used in another way than as required prior to the conversion. The same
applies to the articles of incorporation of a legal person who has acquired
the property of a Foundation ('stichting') and the fruits (benefits)
thereof through a merger or split up (demerger).
- 7. The legal
person asks the keeper of the public registers where this legal person
was registered prior to the conversion and where it must be registered
thereafter, or, in case of an Association ('vereniging'), where
it had been registered voluntarily, to register the conversion.
- 8. A conversion does not end the existence
of the legal person.
Article 2:19 Dissolution of a legal person
- 1. A legal person becomes dissolved:
a. when its General Meeting has passed a resolution
for this purpose or, if the legal person is a Foundation ('stichting'),
when its Board of Directors has passed such a resolution unless the articles
of incorporation of the Foundation ('stichting') provide otherwise;
b. when an event occurs which, according to
the legal person’s articles of incorporation, leads to its dissolution,
and which is not a resolution, nor an act aiming at its dissolution;
c. when it has been declared bankrupt and either
its bankruptcy ends because of the state of the insolvency estate as meant
in Article 16(1) of the Dutch Bankruptcy Act or it is declared insolvent
as referred to in Article 173(1) of the Dutch Bankruptcy Act;
d. when there are no members at all if it is
an Association ('vereniging'), a Cooperative ('coöperatie')
or a Mutual Insurance Society ('onderlinge waarborgmaatschappij');
e. when the Chamber of Commerce has taken a
decision as meant in Article 2:19a;
f. when the court has dissolved it in situations
set for this purpose by law.
- 2. In a situation as referred to in paragraph
1, under point (b) or (d), the District Court shall declare, upon the
request of the Board of Directors, an interested person or the Public
Prosecution Service, whether the legal person is dissolved and when (what
date) this has occurred. This court order is final and binding for everyone.
Where the legal person is registered in a public register, the clerk of
the court shall ensure that the final and binding court order, holding
the earlier meant declaration, will be registered there.
- 3. The dissolution is reported to the keeper
of the public registers where the legal person is registered:
- in the situations referred to in paragraph 1, under point (a), (b) and
(d): by the liquidator, if there is one present, and otherwise by the
Board of Directors;
- in the situation referred to in paragraph 1, under point (c): by the
bankruptcy liquidator;
- in the situation referred to in paragraph 1, under point (e): by the
Chamber of Commerce;
- in the situation referred to in paragraph 1, under point (f): by the
clerk of the court.
- 4. If the legal person no longer has any
assets at the time of its dissolution, it will cease to exist as of that
moment. In that event the Board of Directors or, where Article 2:19a is
applicable, the Chamber of Commerce reports its ending to the keeper of
the public registers where the legal person is registered.
- 5. After its dissolution the legal person
continues to exist insofar this is necessary for the liquidation (winding
up) of its property. In documents and announcements that are released
by the legal person, the words 'in liquidation' must be added to the name
of the legal person.
- 6. In the event of a winding up (liquidation)
the legal person ceases to exist at the moment on which the winding up
(liquidation) ends. The liquidator or the bankruptcy liquidator reports
to the keeper of the public registers where the legal person is registered
that it has ceased to exist.
- 7. The data and information registered in
the public registers with regard to the legal person at the moment on
which it ceases to exist, are kept there for at least ten years after
that moment.
Article 2:19a Dissolution of a legal person by the Chamber of Commerce
- 1. An Open Corporation ('naamloze vennootschap'),
a Closed Corporation ('besloten vennootschap'), a Cooperative
('coöperatie') or a Mutual Insurance Society ('onderlinge
waarborgmaatschapij'), registered at the commercial register, shall
be dissolved by a decision of the Chamber of Commerce, if the Chamber
of Commerce has evidence that at least two of the following circumstances
are applicable:
a. no Directors of the legal person are registered
in the commercial register for a period of at least one year, whereas
neither a report for such a registration has been made, or, if Directors
are registered, one of the following events is applicable to all of the
registered Directors:
1°. the Directors are deceased;
2°. the Directors appear to be unreachable for at least one year at
the addresses mentioned in the commercial register and also at the addresses
mentioned in the Personal Records Data Base or the person involved is
not registered at the Personal Records Data Base;
b. the legal person has failed for at least
one year to comply with its obligation to disclose its annual accounting
records or the balance sheet and notes in accordance with Articles 2:394,
2:396 or 2:397;
c. the legal person has not responded properly
for at least one year to a letter of formal notice as referred to in Article
9, paragraph 3, of the General State Act on Taxation, to file a tax declaration
(tax return) for company (corporation) tax.
- 2. An Association ('vereniging')
or Foundation ('stichting') which itself is registered in the
commercial register, but which does not conduct an enterprise that is
registered as such in the commercial register, shall be dissolved by a
decision of the Chamber of Commerce, if the Chamber of Commerce has evidence
that the event mentioned in paragraph 1, under point (a), is applicable,
and that the legal person is in default for at least one year of paying
the sum due for its registration in the commercial register.
- 3. If the Chamber of Commerce has knowledge
of facts indicating that a legal person is eligible for a dissolution
as meant in paragraph 1 or 2, it will notify the legal person and its
Directors of the intention to dissolve the legal person; this notification
is made by registered letter, send to the last known addresses of the
legal person and its Directors, mentioning not only the intention to dissolve
the legal person, but as well the grounds on which this intention is based.
The Chamber of Commerce registers this notification in the commercial
register. Where an event as meant in paragraph 1, under point (a), applies,
the Chamber of Commerce ensures that the notification is published as
well in the Dutch Gazette. As far as the costs of this publication cannot
be recovered from the property of the legal person, they are borne by
the Minister of Justice.
- 4. Eight weeks after the date of the registered
letter the Chamber of Commerce will dissolve the legal person by decision,
unless the Chamber prior to this moment has received evidence that the
event mentioned in the notification meant in paragraph 3 is not or no
longer applicable.
- 5. The decision of the Chamber of Commerce
will be announced to the legal person and its registered Directors.
- 6. The Chamber of Commerce ensures that
the dissolution is published in the Dutch Gazette. Paragraph 3, last sentence,
applies accordingly.
- 7. If it is not possible to appoint one
or more liquidators on the basis of Article 2:23, paragraph 1, the Chamber
of Commerce shall operate as liquidator of the property of the dissolved
legal person, subject to the provisions of Article 2:19, paragraph 4.
Upon the request of the Chamber of Commerce, the District Court shall
appoint one or more other liquidators.
- 8. If an appeal is lodged with the Board
of Appeal for Trade and Industry (‘College van Beroep voor het
Bedrijfsleven’) against a decision of the Chamber of Commerce
as referred to in paragraph 4, the Chamber of Commerce will make a registration
thereof in the commercial register. The decision on appeal will be registered
there as well. If the decision on appeal leads to the annulment (revision)
of the decision of the Chamber of Commerce, the Chamber of Commerce ensures
that it is published in the Dutch Gazette. During the period that the
legal person had ceased to exist in consequence of the decision to dissolve
it, there are grounds as meant in Article 3:320 of the Civil Code for
the extension of the prescription period of rights of actions available
to or against the legal person.
Article 2:20 Prohibited legal persons
- 1. Where the activities of a legal person
are contrary to public order, the District Court shall prohibit and dissolve
that legal person upon the request of the Public Prosecution Service.
- 2. Where the purpose (objective) of a legal
person, as defined in its articles of incorporation, is contrary to public
order, the District Court shall dissolve that legal person upon the request
of the Public Prosecution Service. Before the dissolution, the District
Court may grant the legal person for a specific period of time the opportunity
to adjust its purpose (objective) in such a way that it no longer is contrary
to public order.
- 3. A legal person that is mentioned on the
list referred to in Article 2, third paragraph, of Regulation (EC) No
2580/2001 of the European Council of 27 December 2001 (OJEC L 344), in
Annex I of Regulation (EC) No 881/2002 of the European Council of 27 May
2002 (OJEC L 139), or that is mentioned and marked with a star in the
Annex to the Common Position No. 2001/931 of the European Council of 27
December 2001 (OJEC L 344), is prohibited by law and not authorized to
perform juridical acts.
Article 2:21 Dissolution of a legal person by the court
- 1. The District Court dissolves a legal
person if:
a. defects (imperfections) are attached to
its formation;
b. its articles of incorporation do not meet
the statutory requirements;
c. it does not fall under the statutory definition
of its legal type.
- 2. The District Court does not dissolve
the legal person if the court has granted the legal person for a specific
period of time the opportunity to comply with the necessary statutory
requirements and the legal person has fulfilled these requirements within
that period.
- 3. The District Court may dissolve a legal
person if it violates the legal prohibitions set in Book 2 of the Civil
Code for this type of legal person or if it acts to a serious degree in
breach of its articles of incorporation.
- 4. The dissolution is ordered by the District
Court upon a request to this end of an interested party or of the Public
Prosecution Service.
Article 2:22 Fiduciary administration of property
- 1. The court where a request for the dissolution
of a legal person is pending, may upon request place the property of that
legal person under a fiduciary administration; the court order mentions
the date as of which it will take effect.
- 2. The court appoints in its court order
one or more legal administrators and regulates their powers and remuneration.
- 3. As far as the court does not provide
otherwise, the bodies of the legal person cannot pass any resolution without
the prior consent of the legal administrator, and the legal representatives
of the legal person cannot perform any juridical act in the name of the
legal person without the cooperation of the legal administrator.
- 4. The court may at any time change or withdraw
a court order as meant in the previous paragraphs; the fiduciary administration
ends in any event once the judicial decision on the request for the dissolution
of the legal person has become final and binding.
- 5. The legal administrator sends to the
keeper of the public registers where the legal person is registered, the
court order in which the fiduciary administration and his appointment
are ordered and also the necessary data about himself that must be registered
for Directors.
- 6. When a legal person, as a result of a
fiduciary administration of its property, has no power to perform a juridical
act, but it performs such an act anyway prior to a registration as meant
in the previous paragraph, then this juridical act will be valid if the
counterparty was not aware nor ought to have been aware of the fiduciary
administration.
Article 2:22a Court order temporarily taking away the shareholder's power
to alienate or encumber shares
- 1. Before or when the Public Prosecution
Service lodges a request for the dissolution of an Open Corporation ('naamloze
vennootschap') or a Closed Corporation ('besloten vennootschap'),
it may ask the court by petition (application) to order that the shareholders,
until the judicial decision on the before meant request becomes final
and binding, shall miss the power to dispose of the shares or to encumber
them with a pledge or usufruct.
- 2. The court decides after a brief examination.
The court order is given under the condition that the request for a dissolution
is lodged within a period of time to be set by court. Against this court
order no appeal is available.
- 3. The court order is served without delay,
if possible on the same day, by bailiff's writ on the shareholders and
the Open or Closed Corporation ('naamloze' or ' besloten
vennootschap'). The clerk of the court ensures that the court order
is registered in the commercial register.
- 4. The shareholders may file an objection
against the court order within eight days after it has been served on
them by bailiff's writ as referred to in the previous paragraph. Such
an objection does not suspend the court order, except for the right of
the shareholders to request the provisional relief judge for a judicial
decision on the matter in summary proceedings. An objection against the
court order cannot be based on the statement that the shareholder wishes
or has the intention to transfer his shares.
- 5. The request for a dissolution of the
Open or Closed Corporation ('naamloze' or 'besloten vennootschap')
must be served by bailiff's writ on the shareholder within eight days
after it has been lodged.
Article 2:23 Liquidator
- 1. To the extent that the District Court
or the articles of incorporation have not appointed any other liquidators,
the Directors will act as liquidators of the property of the dissolved
legal person. With regard to liquidators who are not appointed by the
court, the provisions for the appointment, suspension and discharge (dismissal)
of Directors and the provisions for exercising supervision over Directors
shall apply, insofar the articles of incorporation do not provide otherwise.
The property of a legal person which has been dissolved by the court,
is wound up by one or more liquidators appointed by that court.
- 2. Where the court discharges a liquidator,
it may appoint one or more other liquidators. In the absence of any liquidator,
the District Court shall appoint one or more liquidators upon the request
of an interested party or the Public Prosecution Service. A liquidator
appointed by the court is entitled to a remuneration granted by that court.
- 3. The appointment of a liquidator by the
court takes effect on the day following the one on which the clerk of
the court has notified the liquidator of his appointment; the clerk of
the court makes this notification instantly if the court order of the
appointment is enforceable immediately and, otherwise, as soon as it has
become final and binding.
- 4. Every liquidator reports to the keeper
of the public registers where the legal person is registered, his appointment
as liquidator and the data about himself that must be registered for Directors.
- 5. The District Court may discharge a liquidator
as of a particular day, either upon the request of the liquidator himself
or, on account of compelling reasons, upon the request of a co-liquidator,
the Public Prosecution Service, or of its own motion (ex officio).
- 6. The discharged liquidator shall render
account to the ones who continue the winding up of the property of the
dissolved legal person. Where his successor has been appointed by the
court, account shall be rendered in front of the court.
Article 2:23a Powers, duties and liabilities of a liquidator
- 1. Unless the articles of incorporation
provide otherwise, a liquidator has the same powers, duties and liabilities
as a Director, provided that these are compatible with his role as liquidator.
- 2. In the event of two or more liquidators,
each of them may perform all acts and activities, unless otherwise specified.
In case of a disagreement between the liquidators, each of them may request
the involved court or, otherwise, the Subdistrict Court, to settle their
dispute. The court referred to in the preceding sentence shall also establish
the distribution of their remuneration.
- 3. Both, the District Court and the magistrate
(‘rechter-commissaris’) appointed by that court in
the winding up process, may issue instructions necessary for the winding
up, whether or not through an order in executorial form. The liquidator
is obliged to follow their directions. No appeal or other legal action
is available against these instructions and directions.
- 4. If it appears to the liquidator that
the liabilities (debts) of the legal person probably will outweigh the
assets (benefits) of the legal person, he shall file a request for bankruptcy,
unless all known creditors, when asked, agree with the continuation of
a winding up outside bankruptcy.
- 5. The previous provisions of the present
Article and the provisions of Articles 2:23b up to and including 2:23c
do not apply to a winding up in bankruptcy.
Article 2:23b Surplus in case of a winding up
- 1. What remains from the property of the
dissolved legal person after all creditors are satisfied, shall be distributed
by the liquidator, in proportion to every one’s entitlement, to
those who according to the articles of incorporation are entitled to it
or, otherwise, to the members or shareholders. If no other person is entitled
to the surplus, the liquidator shall distribute it to the State which
shall use it as far as possible in accordance with the purpose (objective)
of the dissolved legal person.
- 2. The liquidator renders in writing account
of the winding up; the amount and composition of the surplus must show
from this written account. When there are two or more persons entitled
to the surplus, the liquidator shall make a distribution plan that contains
the bases for the distribution.
- 3. Insofar the surplus consists of other
assets than cash money and the articles of incorporation or court order
do not provide any other indication, the following methods qualify as
an appropriate way of distribution:
a. apportionment of a portion of the surplus
to each of the entitled persons;
b. over-apportionment to one or more entitled
persons against payment of the excess value to the other entitled persons;
c. distribution of the net proceeds after sale.
- 4. The written account of the winding up
and the distribution plan shall be deposited for inspection by the liquidator
at the office of the public registers where the legal person is registered,
and in any event at the office of the legal person itself, if such an
office is available, or at another place within the judicial district
where the legal person has its domicile. These documents remain there
for public inspection for a period of two months. The liquidator shall
publish in a daily newspaper where and until what time these documents
are available for inspection. The court may order an announcement in the
Dutch Gazette.
- 5. Within two months after the written account
and the distribution plan have been deposited and the deposit for inspection
has been published and announced in accordance with paragraph 4, any creditor
or entitled person may file an objection against the account rendered
by means of a petition (application) lodged with the District Court. The
liquidator gives notice of such objections in the same way as he has done
with regard to the written account and distribution plan.
- 6. Whenever the financial situation of the
property gives rise to it, the liquidator may make an advance distribution
to the entitled persons. After the commencement of the objection period,
he shall not make such advance distributions without authorization of
the court.
- 7. Once the withdrawal of or the judicial
decisions on each objection has become irrevocable (final and binding),
the liquidator gives notice thereof in the same way as he has done with
regard to the objections filed. Where the judicial decision leads to a
change in the distribution plan, the liquidator shall give notice of the
changed distribution plan in the same way.
- 8. Cash funds not disposed of within six
months after the last payment was made available, will be kept in deposit
for payment by the liquidator.
- 9. The winding up ends at the moment on which
no further assets (benefits) are known to the liquidator.
- 10. If a court has been involved in the winding
up, the liquidator shall render account of his administration to that
court within one month after the ending of the winding up.
Article 2:23c Ending an reopening of the winding up
- 1. If, after the legal person has ceased
to exist, a creditor or entitled person presents himself with an entitlement
to the surplus or there appear to be other assets (benefits) after all,
then the District Court may, upon the request of an interested person,
reopen the winding up and, if necessary, appoint a liquidator. In that
event the legal person shall come to existence again, but exclusively
for the completion of the reopened winding up. The liquidator has the
power to claim back from each entitled person what he has received too
much out of the surplus.
- 2. During the period in which the legal
person had ceased to exist, there are grounds as meant in Article 3:320
of the Civil Code for the extension of the prescription period of rights
of actions available to or against the legal person.
Article 2:24 Duty to keep (store) the books, documents and other data
storage media
- 1. The books, documents and other data storage
media of the dissolved legal person must be kept (stored) for seven years
after the legal person has ceased to exist. Keeper is the person who has
been appointed as such by or pursuant to the articles of incorporation
or by the General Meeting or, where it concerns a Foundation ('stichting'),
by the Board of Directors.
- 2. Where a keeper as meant in the previous
paragraph is absent and the last liquidator is not prepared to keep the
involved books, documents and data storage media, a keeper shall be appointed,
upon the request of an interested person, by the Subdistrict Court in
whose subdistrict the legal person had its domicile; in that event the
keeper will be appointed, if possible, from the persons who were involved
in the legal person. No appeal or legal actions are available against
such appointment.
- 3. Within eight days after the commencement
of his duty to keep the involved books, documents and data storage media,
the keeper must report his name and address to the public registers where
the dissolved legal person was registered.
- 4. The Subdistrict Court referred to in
paragraph 2 may, upon request, grant permission to any interested party
to inspect the involved books, documents and data storage media, if the
legal person was a Foundation ('stichting'), and otherwise to
anyone who shows that he has a legitimate interest in such an inspection
in his capacity as former member or shareholder of the legal person, or
as holder of certificates of its shares, or as legal successor of such
a member, shareholder or holder of certificates.
Article 2:24a Definition of a ‘subsidiary’
- 1. A subsidiary of a legal person is:
a. a legal person in which another legal person
or one or more of its subsidiaries, whether or not under a contract with
other persons entitled to vote, is able to exercise, solely or jointly,
more than one half of the voting rights at the General Meeting;
b. a legal person with regard to which another
legal person or one or more of its subsidiaries, whether or not under
a contract with other persons entitled to vote, is able to appoint or
discharge, solely or jointly, more than one half of the members of the
Board of Directors or the Supervisory Board, even if all persons entitled
to vote would cast their vote.
- 2. With a subsidiary is equated a commercial
partnership acting in its own name in which the legal person or one or
more of its subsidiaries participate as a partner who is fully liable
towards the creditors of that commercial partnership for all debts.
- 3. For the purpose of paragraph 1, rights
attached to shares shall not be linked to a person who holds these shares
on behalf of someone else. Rights attached to shares shall be linked to
the person on whose behalf these shares are held, if this person has the
power to decide how these rights are to be exercised or if he has the
power to acquire these shares.
- 4. For the purpose of paragraph 1, voting
rights attached to pledged shares are linked to the pledgee (holder of
the pledge) if he has the power to decide how these rights are to be exercised.
If the shares, however, are encumbered with a pledge as security for a
loan which the pledgee has provided in the ordinary course of his business,
then the voting rights shall only be linked to him if he has exercised
them in his own interest.
Article 24b Definition of a ‘group’
A group is an economic unit in which legal persons and commercial partnerships
are organizationally interconnected. Group companies are legal persons
and commercial partnerships interconnected to each other in one group.
Article 24c Definition of a 'participating interest'
- 1. A participating interest in a legal person is
present when another legal person or a commercial partnership or one or
more of its subsidiaries for their own account, either solely or jointly,
have provided or have caused the provision of capital (recourses) to the
first mentioned legal person in order to be interconnected with that legal
person for a long-lasting period of time in support of their own activities.
If one fifth or more of the issued share capital is paid up (is held),
a participating interest is presumed to be present.
- 2. A participating interest in a commercial partnership
is present if a legal person or its subsidiary:
a. is fully liable as partner towards the creditors
of the commercial partnership for all debts, or;
b. is otherwise a partner in that commercial
partnership in order to be interconnected with that commercial partnership
for a long-lasting period of time in support of its own activities.
Article 24d Assessment of appeared members shareholders, their representatives and cast votes
- 1. In determining to what extent the members
or shareholders have cast their votes or to what extent they are present
or represented, or in determining to what extent share capital is paid
up or represented, no account is taken of memberships or shares with regard
to which the law or a provision in the articles of incorporation as meant
in Article 2:228,paragraph 5, specifies that no vote may be cast.
- 2. In derogation from paragraph 1, account
is taken of shares with regard to which a provision in the articles of
incorporation as meant in Article 2:228,paragraph 5, specifies that no
vote may be cast, where it concerns the application in respect of a Closed
Corporation (‘besloten vennootschap’) of Articles 2:24c, 2:63a,
2:152, 2:201a, 2:220, 2:224a, 2:262, 2:265a, 2:333a, paragraph 2, 2:334ii,
paragraph 2, 2:336, paragraph 1, 2:346, 2:379, paragraph 1 and 2, 2:407,
paragraph 2, 2:408, paragraph 1, and 2:414.
Article 25 Mandatory law
It is only possible to derogate from the statutory provisions of the present
Book (Book 2) as far as the law allows a derogation.
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