Quarterly corporate law update - Q3 2003

Amendment of Dispute Resolution Proceedings with Shareholders and Access to Inquiry Proceedings
For BVs and NVs, the draft legislative proposal in which the inquiry proceedings and dispute resolution proceedings with shareholders are adjusted is relevant. It proposes, among other things, that in the proceedings for expulsion of a shareholder conduct by a shareholder in a capacity other than his or her capacity as a shareholder may also be taken into account by the court. It also proposes to clarify the access to inquiry proceedings at large listed companies. The Council of State recently gave a positive opinion on the proposal. There is no expected completion date, nor is it known when the bill will be submitted to the House of Representatives. For more information, see our blog.

Online incorporation of BVs coming soon
The legislative proposal makes it possible to incorporate private limited companies (BVs) entirely online, by ensuring that the notarial deed of incorporation can be executed electronically, remotely from the civil-law notary. 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 (NVs). This Directive should have been implemented in Dutch law by 1 August 2022. 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 is expected to be 1 January 2024 at the latest. For more information, see our blog.

Council of State positive on Digital General Meeting of Legal Entities under Private Law Act
The opinion of the Council of State of 18 September 2023 raised two points for attention. First, the question of what happens to legal entities that do not amend their articles of association or do not grant authorisation if, for example, a pandemic or other emergency situation occurs in the future. Indeed, the bill allows a general meeting take place entirely virtually, but only if this is stated in the articles of association or if authorisation has been granted. In addition, the Council of State points out the risk that association members who are less digitally proficient could be excluded from a fully virtual meeting. Besides asking for further clarification on this, the Council is positive about the content of the bill. For more information, see our blog.

Amendments to the Responsible and Sustainable International Business Conduct Act
On 15 September 2023, the draft bill for establishing a legal threshold for international corporate social responsibility for Dutch companies that operate internationally was amended. These include shifting the responsibility for the introduction and implementation of a due diligence policy from individual directors to the company and no longer requiring a separate climate plan. The definition of foreign company has been amended to limit the applicability of the Act to foreign companies with a material link with the Netherlands, as evidenced by a large number of customers or activities in the Netherlands in proportion to the total population. For more information, see our blog.

New US clawback rules for US-listed Dutch companies
On 2 October 2023, the amended listing standards of NASDAQ and NYSE entered into force. Companies listed on these exchanges will have until 1 December 2023 to adopt clawback policies that provide for the recovery of erroneously awarded incentive-based compensation received by former and current executive officers. For more information, see our blog.

ESG developments
Every month, our ESG team sends an overview of recent ESG-related developments, insights and perspectives in the areas of governance, information provision and litigation. In addition, there is always a highlighted topic that is discussed in the main article. In the September edition this concerned mandatory energy label C for office buildings. The August edition focused on the Dutch Central Bank’s ESG supervision, its sustainable financing strategy and the role of ESG transition plans. See all our ESG Matters Update here.

Porthos construction project for nitrogen transport and storage may continue
On 13 August 2023, the Administrative Jurisdiction Division of the Council of State ruled that the Porthos construction project may still go ahead. Earlier, the Division had ruled that the statutory construction exemption under which construction projects are allowed to cause (temporary) nitrogen effects during the construction phase of a project violates European law. This means that a separate assessment of the nitrogen effects in the construction and construction phase of a construction project must also be made. For many construction projects, this is unfortunate news. Based on an additional assessment of the nitrogen impact during the construction phase of the Porthos project, the Division has indicated that while there are indeed nitrogen emissions, they are temporary and limited, and do not have observable consequences for the surrounding natural areas. This ruling provides hope for other construction projects. However, it has been emphasized by the highest administrative court that an ecological analysis must be conducted for each project, taking into account the specific characteristics of the nearby natural areas. For more information, see our blog.

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