Articles of association (statuten): what must they contain?

The articles of association (statuten) are the basic rules of a Dutch legal entity, such as a private limited company (besloten vennootschap, BV), public limited company (naamloze vennootschap, NV), cooperative, association or foundation. For most of these entities they must be laid down in a notarial deed executed by a Dutch civil-law notary; the main exception is an informal association, which can exist without a notarial deed but then has limited legal capacity.

The articles set out, among other things, the name, the registered seat, the purpose, the capital structure and the rules on decision-making. Book 2 of the Dutch Civil Code (BW) sets the minimum content for each type of entity.

What are statuten and where does the law regulate them?

The statuten are the internal constitution of a legal entity, contained in the notarial deed of incorporation. Book 2 of the Dutch Civil Code (BW) sets out which rules must be included for each type of entity.

The main provisions are Article 2:177 BW for the BV, Articles 2:66 and following for the NV, Article 2:27 BW for the association (vereniging), Article 2:286 BW for the foundation (stichting) and Articles 2:53 and following for the cooperative (coöperatie), including the variant with excluded liability of members (U.A.). The deed is drawn up in Dutch; a bilingual Dutch-English version is common, but the Dutch text prevails.

The entity comes into existence when the notarial deed is executed. The notary then registers it in the Trade Register (handelsregister) of the Netherlands Chamber of Commerce (KvK). Read more about registration in our article on the business register in the Netherlands.

Which entities must have articles?

All Dutch legal entities with full legal capacity have articles. The most common are the BV, the NV, the cooperative, the association with full legal capacity and the foundation, including a foundation with charitable status (ANBI).

Why is registration so important?

Because the articles filed with the KvK are public, and third parties can in principle rely on what is registered. Under Article 25 of the Trade Register Act 2007 (Handelsregisterwet 2007), a company generally cannot invoke facts that should have been registered but were not against third parties who were unaware of them.

Registration also has consequences for directors. Under Article 2:180 BW, the directors of a BV are jointly and severally liable, together with the company, for legal acts performed on its behalf before the company was registered. Similar rules apply to the NV.

Why do the articles matter for governance?

The articles determine who can decide what, and how. Clear articles prevent deadlock and disputes; unclear or outdated articles invite them.

They specify, for example, who represents the company, how meetings are called, which majorities apply, how directors are appointed and dismissed and how shares are issued and transferred. Tie-breaking rules, such as a casting vote or a reference to mediation, can prevent a company from becoming stuck.

Protecting shareholders and directors

Clear rules on conflicts of interest, on distributions and on the division of powers help directors act within the law. A BV may only make a distribution if the board approves it under the distribution test of Article 2:216 BW.

Which clauses must the articles contain?

The law prescribes a minimum content, which differs per entity. For every entity this includes the name, the municipality in the Netherlands where it has its registered seat and its purpose; for a BV and an NV it also includes rules on the shares.

Under Article 2:177 BW, the articles of a BV state the name, the seat and the purpose of the company. The registered seat must be in a Dutch municipality, even if the business is run from abroad. The purpose should describe the company’s activities clearly; if it is too narrow, the company may later need to amend its articles.

Capital and shares

For a BV, the articles state the nominal value of the shares, or the method for determining it, and any classes of shares. Since the reform of BV law in 2012 (flex-BV), there is no minimum capital for a BV, but at least one share with voting rights must be held by someone other than the company itself.

An NV must have an issued capital of at least EUR 45,000 under Article 2:67 BW, and its articles must state the authorised capital. For both the BV and the NV, the articles can create different classes of shares, for example shares without voting rights or without profit rights in a BV.

Bodies, decision-making and accounts

The articles regulate the powers of the management board, a supervisory board or one-tier board if there is one, and the general meeting. They also contain rules on calling meetings, quorums, majorities and resolutions outside a meeting.

Most articles also regulate the financial year, the adoption of the annual accounts and the distribution of profit. For a foundation, the articles determine how any surplus is used, because a foundation may not make distributions to its founders or board members, except for charitable or social purposes.

Transfer of shares

For a BV, the articles usually contain a transfer restriction (blokkeringsregeling), for example an obligation to offer the shares to the other shareholders first. Since 2012, such a clause is no longer mandatory; if the articles contain no rule, a statutory offer scheme applies under Article 2:195 BW, but the articles may deviate from it or exclude it.

In an NV, shares are in principle freely transferable, although the articles can include restrictions.

Dissolution

The articles often state who can decide to dissolve the entity and what happens to any remaining assets. If they say nothing, the statutory rules on dissolution and liquidation in Book 2 BW apply.

Which optional clauses can you add?

Once the mandatory content is in place, Dutch law leaves considerable room for tailor-made rules. These can help to attract investors, retain key people and prevent deadlock, provided they do not conflict with Book 2 BW.

For investors, common options include preference shares with a priority dividend, drag-along and tag-along rights, and share terms that protect against dilution. Some of these arrangements are better placed in a shareholders’ agreement, but anchoring them in the articles gives them effect against every shareholder, including future ones.

For founders and employees, leaver rules can be useful, with different buy-back prices for a good leaver and a bad leaver. Obligations that concern individuals rather than shares, such as a non-compete clause, generally belong in a shareholders’ agreement or an employment or management contract.

Governance and deadlock

Governance options include a one-tier board with executive and non-executive directors under Articles 2:129a and 2:239a BW, advisory committees and observer rights for investors. To prevent deadlock, you can include a casting vote, mediation or arbitration, or a mechanism by which one shareholder can buy the other out at a pre-agreed valuation.

Some companies place their shares in a trust office foundation (stichting administratiekantoor, STAK), which issues depositary receipts. This separates voting control from economic ownership and can help to keep decision-making stable.

Digital and international features

The articles of a BV or NV can allow shareholders to take part and vote in general meetings by electronic means, under Articles 2:227a and 2:117a BW. English can be used as the working language of the company, but the Dutch text of the articles remains decisive.

How do you draft articles for a new entity?

Start with the choice of legal form, then agree the main points with the people involved, and only then instruct the notary. That order saves time and avoids a second round of amendments.

Choosing the legal form

The BV is the most common choice for a business: flexible, with no minimum capital and limited liability for shareholders. The NV suits larger companies and listed companies. A cooperative suits members who work together and share the results; in a cooperative U.A. the members’ liability is excluded. A foundation has no members and suits non-profit purposes or holding structures, such as a STAK.

Working with the notary

The civil-law notary is an impartial public official, not the lawyer of one of the parties. The notary checks the identity of the founders, the legal form and the content of the articles, and carries out customer due diligence checks.

Provide the notary with the identity documents of all founders and a power of attorney for anyone who does not sign in person. The notary then sends a draft deed and, after execution, registers the entity with the KvK.

Tips for foreign founders

Identity documents or foreign corporate documents may need to be legalised or carry an apostille. Make sure names are spelled exactly as in the passport, because deviations cause delays at the KvK.

For a BV, a bank statement confirming the payment on shares is no longer required at incorporation. For an NV, a statement from a bank that the capital has been paid up is still required.

How do you amend existing articles?

Amending the articles requires a resolution of the competent body and a new notarial deed. Under Article 2:234 BW, an amendment to the articles of a BV only takes effect once the notarial deed has been executed; the same rule applies to the NV.

Which majority is needed?

For a BV and an NV, the general meeting decides on amendments under Articles 2:231 and 2:121 BW. Unless the articles provide otherwise, a resolution requires an absolute majority of the votes cast; many articles set a higher majority or a quorum.

For an association, Article 2:42 BW requires a majority of at least two thirds of the votes cast. The articles of a foundation can only be amended if they allow it; otherwise, amendment is only possible through the court.

Check the current articles carefully before you convene the meeting. A resolution taken with the wrong majority or in a meeting that was not properly convened can be void or voidable.

Filing and pitfalls

After the deed has been executed, the notary files the amended articles with the KvK. Watch for outdated cross-references, provisions that no longer fit the shareholders’ agreement and old rules about bearer shares, which have been converted into registered shares by law. Always circulate the consolidated text to banks, auditors and the data room.

How do you obtain, translate or certify the articles?

You can order the most recent filed articles from the KvK online, using the company’s KvK number, for a small fee. Banks, investors and foreign authorities often ask for them.

If the articles are needed abroad, a notary can issue a certified copy, and the district court can then add an apostille. For court proceedings or foreign authorities, a translation by a sworn translator is usually required; for internal use, a working translation is sufficient, as long as everyone knows that the Dutch text prevails.

What is the difference between the deed, the articles and a shareholders’ agreement?

The deed of incorporation creates the entity and contains the articles. The articles bind the company and all its shareholders or members, present and future; a shareholders’ agreement is a contract that only binds the parties who signed it.

The deed of incorporation also contains one-off statements, such as the identity of the founders, the first directors and the shares issued at incorporation. The articles contain the permanent rules. The UK memorandum of association has no separate Dutch equivalent.

If the articles and a shareholders’ agreement conflict, the articles determine what applies within the company, for example the validity of a resolution. A shareholder who acts contrary to the shareholders’ agreement may, however, be in breach of contract towards the other parties. Mandatory law in Book 2 BW prevails over both documents.

What should you check as a founder or company?

Check the draft deed before the notary executes it, because every later change needs a new notarial deed under Article 2:234 BW. Make sure the articles fit the shareholders’ agreement.

• name, registered seat in the Netherlands and a clear purpose;
• shares, share classes, transfer restrictions and dividend rules;
• board model, supervisory body, quorums and majorities;
• tailor-made clauses, such as leaver rules, deadlock provisions and electronic meetings;
• consistency with the shareholders’ agreement and complete identity documents and powers of attorney.

What should you check as a shareholder or investor?

Read the articles filed with the KvK before you acquire shares. The articles bind you as soon as you become a shareholder, even if you did not negotiate them.

• Which share class do you receive, and does it carry voting rights and profit rights?
• Does the transfer restriction (blokkeringsregeling) or the statutory offer scheme of Article 2:195 BW let you exit, and at what price?
• Which majority applies to amending the articles, and can you block changes that affect your rights?
• Do the leaver, drag-along and tag-along rules in the articles match the shareholders’ agreement?
• Does the version filed with the KvK match the version you were shown?

What can we do for you with articles of association?

Our corporate lawyers draft and review articles of association and shareholders’ agreements for Dutch and international clients.

• We draft the articles for a new BV, NV or foundation and coordinate the deed with the notary.
• We review existing articles against current Book 2 BW and the shareholders’ agreement.
• We draft the share classes, leaver rules and deadlock provisions for a financing round.
• We prepare the shareholders’ resolution to amend the articles with the correct majority.
• We arrange a certified copy and an English translation of the articles for use abroad.

Summary

• The articles of association (statuten) are the basic rules of a Dutch legal entity and are contained in a notarial deed in Dutch.
• The entity comes into existence at the notarial deed; directors of a BV are personally liable for legal acts before registration (Article 2:180 BW).
• The registered seat must be in a Dutch municipality; a BV has no minimum capital, an NV needs at least EUR 45,000.
• An amendment requires a resolution with the right majority and a new notarial deed, and only takes effect when that deed is executed.
• The articles bind all shareholders; a shareholders’ agreement only binds its parties.

Frequently asked questions