The European Mobility Directive in the Netherlands

The European Mobility Directive (Directive (EU) 2019/2121) lets a Dutch BV or NV move its registered office to another EU or EEA member state, merge with a company there, or divide into a company there, through one statutory procedure. The main exception: the route is closed to countries outside the EU and the EEA, so you cannot use it to move a Dutch company to the United Kingdom or the United States.

The Netherlands implemented the directive in the Act implementing the directive on cross-border conversions, mergers and divisions (Wet implementatie richtlijn grensoverschrijdende omzettingen, fusies en splitsingen). That act entered into force on 1 September 2023 and rewrote the relevant parts of Book 2 of the Dutch Civil Code (Burgerlijk Wetboek). Since then, every cross-border conversion, merger or division follows fixed steps, fixed deadlines and a mandatory check by a Dutch civil-law notary (notaris).

Before the directive, only cross-border mergers had a harmonised regime. Conversions and divisions depended on national law and on the freedom of establishment as interpreted by the Court of Justice of the EU. Every project therefore depended on whether two national systems happened to fit together. The directive closes that gap. In return for the new freedom, it gives minority shareholders, creditors and employees a detailed set of safeguards.

In this article we explain what the directive covers and how the Dutch procedure runs, from the first proposal to registration. We also set out what each protected group can do and by when, and where these projects most often go wrong.

Which operations does the directive cover?

The directive covers three operations: cross-border conversions, mergers and divisions of limited liability companies within the EU and the EEA. For the Netherlands, that means the BV and the NV.

The directive applies to the limited liability company forms listed in EU company law. It regulates the following three operations.

• Cross-border conversion (grensoverschrijdende omzetting): a company converts into a company form governed by the law of another member state and moves its registered office there. It keeps its legal personality. It does not dissolve, it does not transfer its assets one by one, and its contracts and permits in principle continue.
• Cross-border merger (grensoverschrijdende fusie): a company merges with a company governed by the law of another member state. This happens either by absorption or by forming a new company. The assets and liabilities pass by universal succession.
• Cross-border division (grensoverschrijdende splitsing): a company splits its assets and liabilities off into one or more new companies governed by the law of another member state, either fully or partially.

Where does the directive stop?

Two limits apply from the outset. First, the regime is closed to third countries: a Dutch BV cannot use it to convert into a company in the United Kingdom, the United States or any other state outside the EU and the EEA. Second, it does not apply to companies in liquidation that have started distributing assets, nor to companies subject to certain insolvency or resolution measures.

How did the Netherlands implement the directive?

The Dutch act took effect on 1 September 2023 and placed the three operations in Book 2 of the Dutch Civil Code. They sit alongside the existing rules on domestic mergers and divisions.

The structure is deliberately familiar. It consists of a proposal, a report, an accountant’s statement, disclosure, a period for comments, a resolution of the general meeting, and execution by notarial deed. What the directive added is a set of firm protections and a gatekeeper.

What is different from a purely Dutch merger?

Three features set the cross-border procedure apart. The first is the pre-transaction certificate (pre-attest), issued by a Dutch civil-law notary. Without it, the operation cannot be completed in the destination state.

The second is extended creditor protection. Creditors have three months to go to court for security, where a domestic merger gives them one month to object. The third is an explicit exit right for shareholders who voted against. Dutch law on domestic operations does not grant that right in the same form.

Which projects need to be checked again?

The regime applies to procedures started on or after the date of entry into force. Projects prepared under the older cross-border merger rules therefore had to be reassessed. If your project was designed on the basis of guidance from before 2023, check it against the current text before you file the proposal.

How does the procedure run, step by step?

Every cross-border conversion, merger or division follows the same sequence: proposal, report, expert, disclosure, comments, resolution and the notary’s certificate. Plan for roughly three to six months between the proposal and completion; a tighter timetable is rarely realistic.

The deadlines are the part that companies most often underestimate. The steps below form the backbone of every project.

Step 1: Draw up the proposal

The board draws up a written proposal with a statutory minimum content. The proposal states:

• the legal form, name and registered office of the company before and after the operation;
• the proposed instrument of incorporation or articles of association, and the timetable;
• the rights offered to shareholders and creditors, and any safeguards offered to creditors;
• in a merger or division, the exchange ratio and any cash payment;
• in a division, the allocation of assets and liabilities;
• the likely repercussions on employment;
• details of any incentives or subsidies received in the previous five years.

Anything you leave out here tends to come back later as an objection. The proposal therefore deserves proper time.

Step 2: Prepare the report for shareholders and employees

The board also prepares an explanatory report with two sections: one for shareholders and one for employees. You may put both in one document or prepare two.

The shareholders’ section explains the cash compensation offered to shareholders who want to leave, and the method used to set it. The employees’ section explains the effects on employment relationships. It covers any material change in the terms of employment or in the location of the company’s places of business, and how those changes affect any subsidiaries. Employee representatives may give an opinion, which is attached to the report. The report must reach them well before the general meeting decides.

Step 3: Have an independent expert examine the proposal

An accountant, acting as an independent expert, examines the proposal. The accountant reports on whether the cash compensation is reasonable and, in a merger or division, on the exchange ratio.

In certain cases the law does not require this statement, for example where all shares are held by a single shareholder. Use any exemption with care. The expert’s report is also the board’s best evidence that the terms were fair if a minority shareholder later disputes them.

Step 4: Disclose the proposal and allow comments

You file the proposal, the report and a notice with the trade register of the Chamber of Commerce (Kamer van Koophandel) at least one month before the general meeting that is to decide. The notice tells shareholders, creditors and employee representatives that they may comment on the proposal.

Comments must be received no later than five working days before the meeting. For cross-border mergers this follows from article 2:333e of the Dutch Civil Code. The general meeting must be informed of the comments received before it votes.

Step 5: Adopt the resolution and execute the notarial deed

The general meeting then decides on the proposal. National law sets the required majority within the limits of the directive, and the articles of association may require more.

After the resolution, the notary examines the file. If everything is in order, the notary issues the pre-transaction certificate. The authority in the destination member state then carries out its own legality check. The operation takes effect, and can be relied on against third parties, once it is registered there. The Dutch trade register entry is then updated or removed.

What can minority shareholders do?

A shareholder who voted against the proposal may leave the company against adequate cash compensation. For cross-border mergers, article 2:333h of the Dutch Civil Code requires that request within one month of the date of the resolution.

The proposal must state the compensation on offer and how it was calculated. A shareholder who considers the offer too low can have it reviewed. The operation is not held up while that review runs; only the amount remains open.

What does this mean for the company and for the shareholder?

For the company, the exit right turns valuation into a live legal risk rather than a negotiating position. Support the compensation with a defensible method before you file the proposal.

For the shareholder, the one-month window is short. It starts running on the date of the resolution, not on the day you get round to taking advice. If you are considering leaving, make sure your vote against is recorded in the minutes of the meeting, because the right belongs to those who voted against.

What if a shareholder wants to stay but disputes the exchange ratio?

A shareholder who does not want to leave, but considers the exchange ratio in a merger or division unfair, can claim an additional cash payment instead. That claim does not block completion either.

Minority protection under this regime is compensatory: it turns a governance objection into money. That is a deliberate design choice. For shareholders used to blocking transactions outright, it calls for a different approach.

How are creditors protected?

Creditors can ask the court for adequate security within three months of the disclosure of the proposal. This applies to creditors whose claims arose before disclosure and who are not satisfied with the safeguards in the proposal.

For cross-border mergers the three-month period is laid down in article 2:333ha of the Dutch Civil Code. The creditor must make it plausible that payment of the claim is at risk because of the operation, and that the company has not provided adequate safeguards.

Why does the creditor period matter for the timetable?

The three-month period is longer than the one-month objection period for a domestic merger, and it runs from disclosure, not from completion. It is one of the reasons a cross-border project takes longer than an internal reorganisation.

If you want to keep the timetable tight, talk to your significant creditors, and in particular your banks, before you file the proposal. A negotiated security package is faster for both sides than a court application.

Which safeguards should the proposal offer?

The company must state in the proposal which safeguards it offers. Silence is not neutral: a proposal that offers nothing invites applications, and each application causes delay. Where a group guarantee or a bank guarantee can be given at limited cost, offering it in the proposal is usually cheaper than defending several court applications.

What are the obligations towards employees and the works council?

Three separate employee obligations run side by side: the information duty under the directive, the works council’s advisory right, and the protection of board-level employee participation. They are often confused, so keep them apart from the start.

The information duty under the directive

The first obligation comes from the directive itself. It consists of the employee section of the board’s report, the right of employee representatives to give an opinion that is attached to it, and the right to comment on the proposal before the general meeting.

The works council’s advisory right

The second obligation is the advisory right of the works council (ondernemingsraad) under the Works Councils Act (Wet op de ondernemingsraden). A cross-border merger, division or conversion, and the transfer of control that comes with it, is a decision on which the works council must be able to advise. It must be asked at a time when its advice can still influence the outcome.

Advice requested after the decision has in effect been taken does not meet that test. The works council can then challenge the decision before the Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal. Employers should also check whether the SER Merger Code (SER-Fusiegedragsregels) requires them to notify the trade unions.

Board-level employee participation

The third obligation concerns board-level employee participation, such as the Dutch large company regime (structuurregeling) and its equivalents elsewhere. The directive contains a specific regime that prevents a cross-border operation from being used to shed an existing participation system.

Where the company has a participation system, or where its workforce comes close to the national threshold in the months before the proposal, negotiations with a special negotiating body may be required. The resulting arrangement must then be kept in place for a period after completion. This is the part of the process with the longest lead time. Assess it at the very beginning, not once the proposal has been drafted. Our overview of an employer’s rights and obligations sets out the consultation duties in more detail.

What does the notary check?

The Dutch civil-law notary is the competent authority that issues the pre-transaction certificate. The notary checks that every step has been completed correctly and refuses the certificate if the operation is set up for abusive or fraudulent purposes.

The notary verifies the proposal, the reports, the disclosure, the comment period, the resolution, and the protection of shareholders, creditors and employees. The notary also checks that any employee participation procedure has been completed.

How does the anti-abuse check work?

If there are serious indications that the operation is being used for abusive or fraudulent purposes, to evade Union or national law, or for criminal purposes, the notary refuses the certificate. For cross-border mergers this follows from article 2:333i of the Dutch Civil Code. The notary may request additional information and may consult other authorities; in that case the assessment takes longer. The Royal Dutch Association of Civil-law Notaries (KNB) has issued practical guidance on the certificate, and notaries take this check seriously.

For a legitimate transaction, the check is a documentation exercise rather than a hurdle. It is, however, a documentation exercise you need to plan for. Record the business rationale for the move from the outset. The file should show substance in the destination state, continuity of the workforce and creditor position, and consistency between what the proposal says and what the group actually intends.

What changes for contracts, permits and staff?

That depends on the operation: in a conversion the company itself continues, in a merger everything passes by universal succession, and in a division only what the proposal allocates passes. The difference decides how much work sits outside the company law procedure.

In a conversion

The legal person survives. The company keeps its identity, its contracts, its claims and its debts. What changes is the law that governs it, its legal form and its registered office. Employment contracts continue with the same employer, because there is no change of employer.

That does not make the operation invisible to counterparties. Financing agreements, leases and long-term supply contracts often contain change-of-control, jurisdiction or governing-law clauses that a conversion can trigger. Permits are usually granted by a national authority and do not travel across the border. A contract review is therefore part of the preparation, not an afterthought.

In a merger

The assets and liabilities of the disappearing company pass to the acquiring company by universal succession at the moment the merger takes effect. Individual assignment and creditor consent are not needed, which is precisely the point of merging rather than selling.

Employees transfer with the undertaking and keep their terms of employment. Where the acquiring company is governed by another legal system, the law applicable to each individual employment contract follows from the European conflict-of-law rules. It does not simply become the law of the destination state. That is why cross-border employment law advice belongs in the project from the start.

In a division

The allocation is what the proposal says it is. The proposal assigns assets and liabilities item by item. Anything it fails to allocate falls under the residual rules, which creditors rarely welcome after the event.

Where the divided part is a going concern, the rules on transfer of undertaking (overgang van onderneming) apply to the staff attached to it. Divisions are the most demanding of the three operations to document and the least suited to a compressed timetable.

Should you convert, merge, or simply set up a new subsidiary?

The statutory route is not always the right one. Setting up a subsidiary in the destination state and transferring the business to it is often faster. It avoids the notary’s certificate and the three-month creditor period entirely, and keeps the Dutch entity available.

The price is the loss of universal succession: every contract has to be assigned, every permit applied for again, and every counterparty asked. A merger buys succession at the price of procedure. A conversion buys continuity of the legal person at the price of leaving the Dutch legal system, with all that means for the articles of association, governance and the position of any large company regime. Make the choice explicitly and record it, because it is also the first thing the notary will ask about.

How should you deal with tax?

Treat tax as a separate track and settle it before the proposal is drawn up. The directive harmonises company law, not tax law.

A cross-border conversion, merger or division has consequences for corporate income tax, dividend withholding tax, transfer tax and the position of the shareholders. Those consequences are governed by Dutch tax legislation, by the tax law of the destination state and by the applicable double taxation treaty. Whether a reorganisation can take place without immediate settlement of unrealised gains depends on the facts, in particular on whether the Dutch tax claim remains secured. It has to be assessed case by case.

Law & More does not provide tax structuring advice. The practical point is one of sequencing: obtain the tax analysis, and where appropriate the position of the Dutch Tax Administration (Belastingdienst), before the proposal is drawn up. The proposal fixes the structure, the timetable and the terms offered to shareholders. A tax objection that surfaces afterwards usually means starting again. Involve a tax adviser at the same moment you involve the notary.

A practical checklist

The table below links each phase of a cross-border operation to the actions you need to complete and the point that most often causes delay.

If your company runs this process regularly, it helps to write it down as an internal procedure, with a named owner for each step and a standard set of documents. Our corporate compliance checklist covers the wider governance obligations around it.

Where do these projects go wrong?

Almost always on the timetable, not on the law. The same mistakes come back, and most are planning failures that only look like legal problems.

• Starting the employee participation assessment after the proposal has been drafted, when negotiations with a special negotiating body can take months.
• Treating the works council as a party to be informed rather than consulted, which exposes the decision to challenge before the Enterprise Chamber.
• Filing a proposal that leaves out part of the statutory content, which the notary cannot repair afterwards.
• Offering no creditor safeguards at all, and then spending the time saved on court applications instead.
• Setting the cash compensation for leaving shareholders at book value without any supporting analysis.
• Assuming the destination state will accept the Dutch file as it stands; the second legality check has its own requirements, and you should confirm them at the start.
• Leaving tax until the structure is fixed.

A cross-border operation is not mainly a drafting exercise. It is a coordination exercise between two jurisdictions, a notary, an accountant, a works council and a tax adviser. The legal risk sits in the handovers between them.

How do you get started?

Start with three questions before anyone drafts a document. The answers decide whether the statutory route suits you at all.

• Does the intended operation fit one of the three statutory forms, or do you actually need an asset transfer or a new subsidiary?
• Does the company have an employee participation system, or is it approaching one?
• What does the destination state require of a company arriving from the Netherlands, in terms of substance, management and registration?

Answering these honestly sometimes ends the project. That is a better outcome than finding the obstacle after the proposal has been filed and the creditor period has started.

Only when the answers are on paper does it make sense to draft. Plan the timetable backwards from the intended completion date. Allow one month between disclosure and the general meeting, three months of creditor exposure from disclosure, and time for the certificate and the foreign legality check. Then decide who owns each step. Agree in advance who speaks to the works council, who speaks to the banks and who instructs counsel in the destination state. Cross-border projects rarely fail on the law; they fail because two of those conversations happened in the wrong order.

In summary

• Since 1 September 2023, a Dutch BV or NV can convert, merge or divide across borders within the EU and the EEA through one statutory procedure; the route is closed to third countries such as the United Kingdom and the United States.
• File the proposal at least one month before the general meeting; comments are due five working days before the meeting.
• Shareholders who voted against can leave against cash compensation within one month of the resolution; creditors have three months from disclosure to ask the court for security.
• The works council must be asked for advice in time, and board-level participation needs assessing at the very start.
• The notary issues the pre-transaction certificate only after checking every step and ruling out abuse; tax must be settled before the proposal is drawn up.

Frequently asked questions

Below we answer some practical questions about the European mobility rules for companies.

Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.

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