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  • Corporate law
  • 07-07-2023

On 21 April 2022, the bill to implement Directive (EU) 2019/1151 was submitted to the Dutch Second Chamber. The bill makes it possible to incorporate private limited companies (in Dutch: 'besloten vennootschappen' or BV's) online. The scheduled date of entry into force is unknown, but this is expected to be 1 January 2024 at the latest.

The current bill only makes the online incorporation of private limited liability companies possible. However, the directive allows other limited liability companies, such as public limited liability companies (in Dutch: 'naamloze vennootschappen' or NV's), to be incorporated online. After an evaluation of the Act, an assessment will be made as to whether the scheme will eventually be extended to public limited liability companies. Only EU nationals can incorporate a private limited company online. These are: (i) natural persons who are nationals of an EU Member State and (ii) companies incorporated under the laws of an EU Member State and having their registered office, central administration or principal place of business within the EU.

Procedure of online incorporation
The bill makes it possible to incorporate private limited liability companies entirely online, by ensuring that the notarial deed of incorporation can be executed electronically, remotely from the civil-law notary. The notarial deed is electronic and is also executed by the civil-law notary in an electronic environment. The existing procedure with appearance in person (or by written power of attorney) before the civil-law notary will continue to exist. 

The main aspects of the online incorporation are:

  • Template deed: A template deed of incorporation may be used, but this is not mandatory. The Royal Dutch Association of Civil-law Notaries (KNB) has drawn up a template for this purpose. 
  • Guarantees against fraud: each intended managing director or supervisory director must declare whether a director disqualification has been imposed on him or her in another Member State on grounds similar to the Dutch grounds for imposing a director disqualification (such as, for example, if a director was imputably involved in the bankruptcy of a legal entity on at least two previous occasions).
  • Language: in the case of online incorporation, the original deed of incorporation may be executed in the English language. This also applies to a deed of amendment to the articles of association, but only if the BV was incorporated by an electronic deed in the English language. Neither option will apply to the current physical procedure for incorporation or amendments to the articles of association, which will remain possible in Dutch only,
  • Contribution: no contribution other than cash may be agreed.
  • Online platform: the KNB has developed an online data processing platform that makes it possible to establish a direct video and sound connection between the civil-law notary and the party or parties to the deed.
  • Identification: the party or parties can identify themselves on this online platform by means of an electronic means of identification. The KNB wants to prescribe a qualified digital signature as referred to in the eIDAS Regulation. If identity fraud is suspected, the civil-law notary may still require the physical presence of the relevant party or parties.
  • Signature: the party or parties can sign the deed electronically via the platform.
  • Power of attorney: a power of attorney for cooperating in an electronic notarial deed can only be granted electronically. In that case, the identity of the grantor must also be established using an electronic means of identification.
  • Chamber of Commerce registration: the BV that was incorporated online will also be listed in the Commercial Register. In practice, the civil-law notary will do this. The working method will remain the same after the bill enters into force.

Follow-up steps and update 7 August 2023
The date on which this Directive should have been implemented in Dutch law was 1 August 2022, but that date has not been met. The Act was published in the Official Journal on 7 August 2023, with no implementation decree. The scheduled date of entry into force is unknown, but this is expected to be 1 January 2024 at the latest. We will update this blog when there are new developments.

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