NETHERLANDS Law and Practice Contributed by: Coco van Zuiden, Marijn Bodelier, Sabine Schoute and Simone Wijngaard, Greenberg Traurig, LLP
5.5 Applicable Governance Requirements Governance NVs/BVs Management board (executive) NVs and BVs must have a management board consisting of at least one member. Where an NV or a BV is subject to the “struc- ture regime” its management board members are, in principle, appointed by the company’s supervisory board. The structure regime applies if certain conditions are met for three consecu - tive years. Individuals and legal entities may be manage - ment board members and no requirements as to nationality or residence apply. However, from a tax perspective it may be desirable for at least 50% of the members (preferably individuals) to be resident in the Netherlands and for board meetings to be held in the Netherlands and be attended by all members in person. The management board is responsible for the company’s management. Both the management board collectively and each board member individually has the power to represent (ie, legally bind) the NV or BV. How - ever, the articles may provide that this power vests only in one or more specific board mem - bers or in two or more board members acting jointly. The power to represent the company is unrestricted and unconditional (except in a lim - ited number of cases). Supervisory board (non-executive) An NV’s or BV’s articles may provide for a supervisory board, consisting of one or more members, with the duty to supervise the poli - cies pursued by the management board and the general course of affairs of the company and its
istered in the trade register, the board members are jointly and severally liable, together with the NV, for all legal acts performed in the company’s name. BVs A BV may only issue registered shares. At all times there must be at least one share with vot- ing rights held by a party other than, and not on behalf of, the BV itself (or its subsidiaries, if any). The articles must state the shares’ nominal value (which can be in any currency) and, if the BV has different classes of shares, the nominal value of the shares in each class. The articles may also provide for authorised share capital, but this is not mandatory and, in fact, would restrict a BV’s flexibility to restructure its share capital. The deed of incorporation must state the amount of the issued share capital and the amount paid up on the issued shares. It may be agreed between the BV and a shareholder that payment of all or part of the shares’ nominal value will be deferred until the BV calls for payment. Conse - quently, and because no minimum share capital requirement applies, a BV may be incorporated with an issued share capital as low as EUR0.01, comprising one share with voting rights, and a paid-up share capital of zero. CVs Although a CV is not an entity with capital divided into shares, it may issue shares or participations to its partners, which is particularly important if the partners wish the CV to be classified as a real estate vehicle for Dutch real estate transfer tax purposes.
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