Abolition of 'statement of no objection' for incorporation of companies
From 1 July 2011, a statement of no objection will no longer be required for the incorporation of a Dutch company or the amendment of its articles. The current system of preventive supervision has proven to be ineffective in countering misuse, and places an administrative burden on incorporators. It will be replaced by a system of continuous monitoring by the Ministry of Justice. Where possible, the Ministry will use electronic information already available (e.g. through the Trade Register) to prevent misuse of legal entities.
One-tier board bill approved
The one-tier board bill has been approved by the First Chamber of Parliament. The bill may take effect on 1 January 2012. The Minister of Justice has responded to a number of points raised by members of parliament about the bill, including:
Position of non-executive directors: according to the Minister, independent supervision will exist in both the one-tier and two-tier board model. In the one-tier board model, supervision can be carried out more actively, as non-executive directors are part of the board and involved in its decision making.
Liability of directors: an individual director can be cleared of wrongdoing if no serious blame can be attributed to him given the division of tasks between directors. Exculpation is not possible if the director has been negligent in taking measures to counter the effects of mismanagement.
Wild West Sign and other changes to FMSA
The First Chamber of the Dutch Parliament has approved the Financial Markets Amendment Bill 2010. The bill contains both substantive and technical non-substantive amendments to the Financial Markets Supervision Act (FMSA). The more substantive amendments relate to:
the mandatory exemption notice for offerors of securities who are exempt - pursuant to article 5:3 paragraph 1 FMSA - from the prohibition on offering securities to the public without an approved prospectus ("wild west sign")
the voluntary supervisory regime for investment firms
the "major exemption" for offerors of investments (from all license requirements in this respect)
raising of the threshold for exemption from the licence requirements for investment objects and participation rights in investment institutions from EUR 50,000 to EUR 100,000.
The bill is expected to take effect in January 2012.
Supreme Court allows dilution of majority stake in Inter Access
The Supreme Court recently confirmed a decision by the Enterprise Chamber where immediate measures were issued which led to the dilution of a majority shareholder's stake.
In late 2009, the Enterprise Chamber ordered a corporate inquiry (enquête) into Inter Access. Given Inter Access's serious financial situation, the Enterprise Chamber suspended the inquiry but, by way of an immediate measure, allowed Inter Access's managing board to issue shares to a minority shareholder, who was willing to provide financial backing that would rescue the company. The board was given authority to issue shares without an underlying resolution of the general meeting, overriding the preferential rights of other shareholders. The majority shareholder Marigot appealed to the Supreme Court against the Enterprise Chamber's ruling.
According to the Supreme Court, the Enterprise Chamber was free to order any measures it deemed necessary in view of the company's condition, even if this meant that the existing corporate governance structure within the company was set aside. The Enterprise Chamber was justified in making its decision given the serious financial condition of Inter Access Group and the view that, also in the majority shareholder's interest, an urgent solution had to be found.
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