NETHERLANDS Law and Practice Contributed by: Manon Cremers, Heleen Kersten and Frédérique van der Wegen, Stibbe
Chairperson Neither Book 2 of the DCC nor the CG Code stipulates who appoints the chairperson of the management board or supervisory board of an NV or BV. Roles within a one-tier board If a company has a one-tier board, supervision of the executive directors cannot be taken away from non- executive directors. The chairpersonship of the board, nominations for appointment of a director and deter - mination of executive directors’ remuneration cannot The supervisory board has collective responsibility for supervising the performance of the management board. It may allocate duties among its members without relieving them of collective responsibility. For Dutch listed companies with more than four supervi - sory directors, the CG Code provides that the super - visory board should appoint an audit committee, a remuneration committee and a selection and appoint - ment committee. One supervisory director must be a financial expert. The audit and remuneration commit - tees should not be chaired by the chairperson of the supervisory board or a former managing director. 3.3 Board Composition be assigned to executive directors. Roles within a supervisory board In a two-tier structure, there must be a manage - ment board with at least one managing director and, if established, a supervisory board with at least one individual member. In a one-tier board, there must be at least one executive director and one non-executive director, who must be an individual. The articles may restrict eligibility for appointment, but such require - ments may be set aside by a general meeting resolu - tion passed by at least two-thirds of the votes, rep - resenting more than half of the issued share capital. Dutch Companies Within the Scope of the CG Code According to the CG Code, each supervisory direc - tor and each managing director should have the specific expertise required for the fulfilment of their duties. Each supervisory director should be capable of assessing the broad outline of the overall manage - ment. The requirement that the supervisory board has financial expertise is enshrined in law. Pursuant to the
Resolution Establishing an Audit Committee ( Besluit Instelling Auditcommissie ), at least one member of the audit committee must have expertise in the prepa - ration and auditing of annual accounts. This provi - sion has been implemented in Dutch legislation and is applicable to public interest entities (such as listed companies, banks and (certain) insurance compa - nies). Diversity Large companies must set appropriate and ambi - tious gender diversity targets for the management and supervisory boards and senior management. For the purpose of the Diversity Act, a company is large if it meets at least two statutory thresholds on two consecutive balance sheet dates: assets exceeding EUR25 million, net turnover exceeding EUR50 million and an average of at least 250 employees. Consoli - dated group data must be considered. Supervisory boards of Dutch companies listed on Euronext Amsterdam are subject to a quota of at least one-third male and one-third female directors. If the board does not meet this quota, any appointment that does not balance the distribution is void. The same applies to non-executive directors in a one-tier board. Large companies within the meaning of the Diversity Act must report in their management report and to the Social and Economic Council on current ratios, target ratios, action plans and objectives achieved. Restrictions on the Number of Positions of Directors Book 2 of the DCC limits supervisory positions at Dutch large companies and large foundations. A man - aging director may generally hold a maximum of two supervisory positions and may not chair a supervisory or one-tier board of a large company. A supervisory director may hold up to five supervisory positions, with a chair position counting twice. Under the CG Code, supervisory board approval is required if a man - aging director intends to accept a supervisory board membership elsewhere.
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