NETHERLANDS Law and Practice Contributed by: Jan-Willem van Rooij, Anne Brugmans and Jordy Kusters, Loyens & Loeff
9.4 Independent Outside Advice In the Netherlands, it is common for boards of direc- tors to engage independent external advisers when considering takeovers or business combinations. These advisers typically include legal counsel, financial advisers and sector-specific consultants, especially in regulated industries like energy and infrastructure. Their role is to help the board fulfil its fiduciary duties by providing expert analysis and support throughout the transaction process. It is customary for financial advisers to provide a fairness opinion as part of their service. This opinion assists directors and supervisory boards in making informed decisions and satisfying their fiduciary responsibilities.
Governance Code provide best practice provisions in this respect. 9.3 Role of the Board Under Dutch law, directors’ duties are not owed exclusively to shareholders but extend to the inter- ests of the company and its business as a whole (ie, the corporate interest ( vennootschappelijk belang )), as previously indicated. Dutch companies may adopt a one-tier board system, comprising executive and non-executive directors, or a two-tier system, with a separate management (executive) board and super- visory (non-executive) board. Large companies that meet statutory thresholds may be required to have non-executive directors or a supervisory board with substantial powers. Regardless of the structure, all directors are required to perform their duties diligently and in the best interests of the company, considering all relevant stakeholders. In M&A transactions, direc- tors must assess deals, participate in negotiations, and, if necessary, defend the company against unso- licited offers, ensuring decisions are well-informed and balanced. Shareholder litigation challenging M&A decisions is relatively rare in the Netherlands but can arise in cases alleging breach of fiduciary duty, conflicts of interest, or inadequate disclosure. In energy and infrastructure, the risks are heightened due to critical infrastructure, public policy and security concerns. The Enterprise Chamber may review board conduct and, in excep- tional cases, impose interim measures to protect the company or its stakeholders.
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