Directors’ Duties in The Netherlands

>> Board Requirements in The Netherlands

Appointment of directors

Directors are appointed by the shareholders, by a resolution of the general meeting of shareholders,  and the minimum number of directors is one (1).

Board meetings and composition requirements

Except for (i) the age restriction of being at least 18 years old and (ii) not being under guardianship (onder curatele gesteld), there are no legal restrictions on who can become a director.

The Articles may contain specific requirements in  respect of the eligibility of directors and the right to nominate candidates.

An individual director is not required to be resident in the Netherlands and there is no nationality requirement, unless otherwise required by the Articles. If the Articles contain such a requirement, discriminating between Dutch subjects and subjects of other EU countries is not permitted.

A company – whether incorporated in the Netherlands or elsewhere – can also be appointed as a director.

The Dutch Civil Code (“DCC”) provides a statutory limitation on the number of executive and nonexecutive positions a single director may fulfil in case of large entities. A statutory exception applies to appointments to the boards of group companies, meaning that the above limitations  do not apply to positions a person fulfils within one group.

Not eligible for the appointment either as member to the management board or as executive director to a one-tier board of a large entity are individuals who are:

  • supervisory director or non-executive director (or member of the supervising body, in case of a qualifying foundation) of at least two other large entities; and/or
  • chairman of the supervisory board or onetier board (or supervising body, in case of a qualifying foundation) of a large entity

Not eligible for appointment as member to the supervisory board or as non-executive director  to a one-tier board (or as member to the supervising body, in case of a qualifying foundation) of large entities are individuals who are supervisory director or non-executive director (or member of the supervising body, in case of  a qualifying foundation) of more than five (5)  other legal entities. A chairmanship will count  for two positions.

Signatory rights/powers of directors

The main sources of powers for directors are the DCC and the Articles. The Articles can place restrictions on how many directors are required to represent the company.

Conflicts

There is a conflict of interest when a director  has a direct or indirect personal interest that conflicts with the interests of the company and  its business.

A conflicted director will have to refrain from participating in the decision-making process in relation to the matter in which he is conflicted. A resolution passed in contravention of the aforementioned may be nullified by the company. Non-compliance may also result in the relevant director being held liable for any damages by the company. A conflict of interest will however no longer have external effect including possible consequences for third parties.

Please note that in case the directors of a company possess (depository receipts of) shares in the company, they could be conflicted and advice should be sought in respect of this.


Latest version updated 10th April 2018

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