At Intercompany Solutions, we specialize in Dutch company formation. By far, the largest amount of our clientele chooses to establish a Dutch BV, which is the equivalent of a private limited liability company. The Dutch BV has many advantages and tax benefits that appeal to a wide audience, hence the fact that more than 90% of our clients incorporate a BV or BV holding structure. Nonetheless, the Dutch NV can also be a viable option, especially if you want your current company to go public. The Dutch NV is comparable to the public limited liability company, which issues shares via the stock exchange. But that is not the only noteworthy feature of a public limited liability company: there are several other characteristics that might be to your liking as an entrepreneur. We will discuss the Dutch NV extensively in this article, including the incorporation procedure and why this legal entity might be the right company type for your (future) Dutch business.

 

What is a Dutch NV?

NV is the abbreviation of “Naamloze Vennootschap”, which is a type of company with limited liability. There are broadly two general types of limited liability companies, namely the public limited liability company and the private limited liability company. The NV is comparable to a globally recognized public liability company. The core characteristic of such companies is the fact that you, as an individual, are not personally liable for any financial issues that might arise within the company. This means that when you create debts, for example, creditors cannot go after your personal assets and funds. Only in the case of serious improper management or fraudulent behavior that can be proven can creditors hold you responsible. This is also the main reason that these legal entities are so popular: they substantially limit the amount of risk you take with your business. If you plan to incorporate an NV in the Netherlands, you will first need to understand the general features of the legal entity. NVs are most suitable for investors who plan to raise public capital. Most importantly, the minimum required share capital amounts to 45,000 euros, of which no less than 20% has to be issued. This basically means that the NV is not appropriate for everyone. Another key feature is the fact that you can issue shares on the stock exchange, which is the definition of a public company. We will discuss all these features in more detail below.

Why incorporate a Dutch NV?

There are many reasons one would like to incorporate a public limited liability company. Often, private limited liability companies (in Dutch also known as “Besloten Vennootschap”, or BV) achieve success at some point, which leads to going public. You might also own a successful foreign public limited liability company, which you would like to expand to the Netherlands or even convert into a Dutch business because this might be a fruitful decision for you. The Netherlands is among the top business destinations for international investors because of its stable economy and open policies with respect to commerce and investments. The country is annually listed at the top of many renown business indexes simply because the business climate is very healthy and international trade is encouraged due to the country's strategic position. This has already led to many well-known international corporations settling in the Netherlands; some have even established their headquarters here because of the fantastic infrastructure. Therefore, it is a wise decision to open a Dutch NV company if your aim is to expand with a public company internationally. Local businesses have the advantage of a flexible tax regime that allows corporate tax exemptions for income from capital gains and dividends. Next to that, the corporate income tax in the Netherlands is relatively low when compared to neighboring countries, another benefit that might help your business skyrocket.

Some general facts about the Dutch NV

The public limited liability company is a legal form that is actually not very common in the Netherlands. There are approximately 2,500 companies that use the public limited company as a legal entity, which mainly consist of very large companies. What exactly does a public limited company encompass? A public limited liability company is, as the term suggests, a certain type of company where the identity of the shareholders is not necessarily known to the public. This is due to the free tradability of shares on the public market. The distinguishing feature of an NV compared to other business forms is its free tradability. A public limited company is a legal entity and is very similar to a private company. Just like with a Dutch BV, you are employed by the company as a director. You usually set up a limited liability company with several people. All directors of the NV have the highest power and are also shareholders. Just like a BV, the capital of the company is divided into shares. The difference is that the shares of a public limited company can be transferred. Shares that are transferable and tradable on the stock exchange may be issued. Thus, NVs are often large corporations. This is because it is easier to raise capital (by issuing new shares) as a public limited liability company than as a private limited liability company.

Shareholders

So, the capital of an NV is raised by shareholders. The NV is a so-called capital company (as opposed to a partnership). The difference with a BV is that with an NV, the shares do not have to be registered (although it is possible), hence the term 'public limited liability company'. This means that shares are easily transferable. Any natural person who can literally show a share, although this no longer happens physically these days since everything is digitalized, is a shareholder. Therefore, he or she automatically shares in the profits and has a vote. So, in principle, the NV does not know who its shareholders are. Keep in mind that the NV is a limited liability company. Thus, the shareholders of the public limited company are not liable for any debts of the public limited liability company. They are only expected to contribute to the loss up to the amount that was originally paid for the share(s). The directors are also not personally liable for the debts of the NV. Only in exceptional cases can directors be held privately liable for the debts of the public limited company. This may be the case when there is director's liability or, for example, when the NV has not been incorporated correctly.

Structure

The basic structure of an NV includes a board of directors that takes care of the day-to-day management of the company, a General Meeting of shareholders (GM) that makes certain key decisions, and in many cases also a Supervisory Board to provide supervision and advice. The core idea behind the Dutch NV is that it provides both flexibility and protection to those who invest, without having to worry about personal liability. According to the law, the board must manage the public limited liability company, so the board is responsible for all daily affairs. Please keep in mind that the articles of association may grant certain directors different powers. The fact that the board is responsible for the day-to-day affairs of the NV also means in Dutch law that the shareholders' meeting may not give specific instructions about this but may only set general guidelines and provide advice on certain topics. The GM is also responsible for the most important decisions that the public limited liability company makes. The GM appoints the board of the NV, unless there is a two-tier board, decides on the transfer of (a large part of) the company to a third party, decides whether the company should enter into sustainable partnerships, and assists with acquiring or divesting a large shareholding in the capital of another company. The signing authority within an NV is strictly regulated. Depending on the articles of association and internal regulations, it is therein determined who may represent the NV and enter into binding agreements on behalf of the company.

The stock exchange listing: benefits and challenges

When an NV is listed on the stock exchange, it simply means that the shares are publicly traded on the stock exchange. This makes it possible for the public to buy and sell shares of the company, which is also why not all shareholders are always known. When listed, the NV must comply with strict regulations and transparency requirements set by the stock exchange. One of the biggest advantages of a stock exchange listing is the opportunity to raise significant capital by issuing new shares. However, it also brings challenges, such as the need to provide quarterly reporting, shareholder influence and market pressure on short-term performance. Please note that the listed company is a separate version of the public limited liability company. Another major advantage of a public listing for the company is that the shareholders can easily dispose of their shares in the NV if the value suddenly plummets. A disadvantage is the many additional requirements that a listed company must meet, such as a listing on Euronext. To acquire this listing, there must be numerous tradable shares, and the articles of association must meet certain requirements. In addition to the requirements that Euronext imposes on an NV, there are also additional legal requirements for a stock exchange NV. For example, a prospectus must be drawn up, which must, of course, also meet a number of legal requirements.

The differences between a private and public limited liability company (BV vs. NV)

If you are unsure whether to set up either a Dutch BV or NV, we generally advise starting with a BV. A BV has fewer specific requirements than an NV, to name just one simple example. Around 99% of our clients choose a Dutch BV company for incorporation. The Dutch BV is by far the most beneficial legal entity, unless you want to be publicly listed or are looking to form a charitable foundation. The Dutch BV is likely the type of company you are looking for. Nonetheless, we will outline some of the general differences and similarities between the two limited liability companies below.

The Dutch BV

• The minimum share capital is 1 euro
• Issued and required paid-up capital is determined by the founders, this is registered in the articles of association
• Different types of shares allow varying voting and dividend rights, plus non-voting shares
• Particular class shares may limit profit sharing entitlement; however, such shares must always have voting rights
• Transfer restrictions are sometimes allowed
• Shares are not admitted to the stock exchange
• There is an annual general meeting (GM) for shareholders
• A one-tier board and a two-tier board are both possible
• A supervisory board (or non-executive directors on the board) is optional
• The articles of association can contain regulations granting shareholders limited opportunities to give general instructions to the management board
• The director or board decides about profit distribution

The Dutch NV

• The minimum capital is EUR 45,000
• Different types of shares are allowed (such as bearer shares)
• All shareholders receive voting rights as well as profit rights
• Transfer restrictions are sometimes allowed
• Shares are admitted on the stock exchange
• There is an annual general meeting (GM) for shareholders with and without voting rights
• A one-tier board and a two-tier board are both possible
• A supervisory board (or non-executive directors on the board) is generally optional
• The articles of association can contain regulations granting shareholders the right to give specific instructions to the management board
• The GM decides about profit distribution
• If a certain contribution might threaten the continuity of the company, the management board may refuse approval for the distribution of profit, dependent on the outcome of a liquidity test
• Interim dividends are possible

As you can clearly see, there are some notable differences between the two limited companies. For instance, a BV can only issue registered shares, whereas a NV can issue both registered and bearer shares. This is why we explained earlier that an NV doesn’t always necessarily know who its shareholders are. The articles of association determine a large part of the rules regarding the possibility of transferring shares freely in a BV. Oftentimes, there are certain transfer restrictions that limit some (or all) shareholders. In that case, the other shareholders need to give their consent when a shareholder wants to transfer shares. Also, the other shareholders have a preemptive right to buy shares from a selling shareholder. Next to that, in 2012, the Flex-BV was introduced. One of the most notable changes was the decision to cancel the obligation to bring in a minimum share capital in order to start a BV. This makes a BV much more accessible to the public since not everyone has sufficient assets to pay the share capital of 45,000 euros for the NV. For most companies, a BV structure is the best option.

Benefits of owning a Dutch NV

There are some clear advantages to owning a limited liability company. For starters, an NV has a legal personality. It is therefore an independent legal subject that can be managed separately from its shareholders. This also explains the limited liability of directors and shareholders, since the company and the individuals associated with it are in fact separate entities. Dutch law also sees it this way. Next to that, it is relatively easy to attract resources to an NV company. By issuing shares, a public limited liability company can raise money, for example, to invest in its own growth and expansion. As opposed to a BV, the shares of an NV are freely transferrable. If the shares are listed on a stock exchange, they are relatively easy to trade. Lastly, in some cases, public limited liability companies can enjoy tax benefits, such as lower tax rates on dividend income for shareholders and deductions. Note that almost all these benefits also apply to the Dutch BV, apart from the freely transferrable shares.

Incorporators of a Dutch NV

The first stage in starting a Dutch NV is to establish the incorporators, or founders, of the company. These may be a single or multiple legal entities of any nationality residing anywhere in the world. If, for any reason, the founders are unable to stay in the Netherlands during the process of incorporation, a Power of Attorney is sufficient for their representation. This means we can set up your Dutch NV entirely remotely in most cases. To set up a limited liability company, there are a number of steps that need to be followed. Firstly, the founders must hold a statutory meeting in which they adopt the company's articles of association. These articles of association contain information about, among other things, the purpose of the company, the shares and the powers of the shareholders and management. A notarial deed must then be drawn up through a notary, in which the incorporation of the company is ratified. This deed must be registered in the trade register of the Chamber of Commerce, which is usually arranged by the notary. We will explain this step in more detail below.

The mandatory requirements to establish a Dutch NV

The mandatory requirements for opening an NV include a minimum of one shareholder plus established boards of supervisors and managers. Also, the company must have a local registered address. You can easily establish your NV on a so-called virtual address nowadays, just be sure that you acquire an address from a trusted third party. A Dutch NV company has freely transferable bearer shares, registered shares or share certificates and can repurchase 10% of outstanding shares at all times. NV formation requires the services of a local lawyer and a Dutch notary with experience in preparing and executing incorporation deeds.

Procedure for the incorporation of a Dutch NV company

According to Dutch law, a public limited liability company is established by drawing up a notarial deed. The articles of association (AoA) of the NV must be included in that deed, which must include the name, registered office and purpose of the company. A notary is able to execute the Incorporation Deed of the company containing the AoA. The term 'N.V.' or the term 'Public Limited Liability Company' must be placed before or after the name. Once the notarial deed has been drawn up, the Minister of Justice must still give permission to actually incorporate the NV. If an NV is being established for unauthorized purposes (such as money laundering or terrorist financing) or if the use of the NV will lead to disadvantages for creditors, the declaration may be refused. Establishing the NV is then not permitted. During the process of establishment, the company can already be added to the Dutch Trade Register as a company in formation (“i.o.” in Dutch). Once the public limited company has been established, it can carry out its activities without the i.o. indicator, which indicates that the NV is fully established. Carrying out daily activities includes making decisions and entering into legal contracts with third parties.

If these conditions are met, each founder must participate in the share capital of the public limited company. Everyone must therefore deposit money, with a minimum total amount of 45,000 euros. If there are multiple founders, this means that you can split the total sum between you all, which makes the initial financial transaction a bit more bearable. Finally, the public limited company must be registered in the Trade Register of the Chamber of Commerce, together with a number of other pieces of information about, for example, the costs of establishing the NV.

If the newly opened NV owns any registered shares, then it must also keep a register of shareholders. After the process of registering the company is completed, the notary shall prepare the register of shareholders to be maintained by the board in the official office of the company. Every shareholder is included with their complete name, address, type and number of shares, currency and issue date, amount of paid-in capital per share, pledges, and other hindrances. Also, if the above details change, then the registration should be updated. This is the responsibility of the board and its representatives.

Procedure for the registration of a Dutch NV in the Trade Register

An important step in the formation of a Dutch NV company is its inclusion in the Dutch Trade Register. The following documents are necessary for this registration procedure:

• a personal identity document
• a statement from the bank, no more than thirty days old
• a reference paper for a residential address or, alternatively, a copy of the contract for rent of the local property.

These documents are needed to receive a registration number that is unique to the company. Within a period of 8 days after successful incorporation, some of the company’s details need to be included in the registry at the Dutch Chamber of Commerce, located in the same district as the NV’s registered office. If you need more details on Dutch NV formation, please call our local incorporation agents. They will provide you with thorough information on the matter and offer you personalized advice depending on your case and specific requirements. We also assist with the incorporation of private limited companies in the Netherlands.