What if a shareholder rejects the annual accounts?
First look into the objection and the applicable voting rules. A dispute does not suspend the duty to publish; if necessary you file without adoption.
The short answer
First look into the objection and the applicable voting rules. A dispute does not suspend the duty to publish; if necessary you file without adoption.
Basis: art. 2:210, 2:238, 2:362 and 2:394 DCC
What objection does the shareholder have?
A shareholder who rejects the annual accounts does not automatically make them invalid. First it must become clear whether the issue is a substantive error, missing information or a voting conflict. The majority required follows from the applicable rules and the articles of association. The board remains responsible for its own tasks, even when shareholders disagree.
Ask for the objection to be made specific. Which line item does the shareholder consider incorrect and what information is missing? A difference of opinion about the value of a receivable calls for a different response than dissatisfaction with the dividend policy. Check the supporting evidence and adjust the annual accounts if there is a substantive reason to do so. Keep the questions and answers in the file. If the board decides not to make a requested adjustment, record the financial considerations. Art. 2:362 DCC requires a true and fair view; a compromise between shareholders is not an accounting policy in its own right.
How does the vote proceed under the articles of association?
Organise the decision-making in accordance with the articles of association. Do not assume unanimity when it is not required, but do not assume a simple majority either when special provisions apply. For decisions taken outside a meeting, all persons entitled to attend meetings must agree to that procedure under art. 2:238 DCC. Refusing the procedure is something different from voting against the figures. A formal meeting may then be needed. In a deadlock or when proceedings loom, have a lawyer look at the matter. Incorrect notice of the meeting or ignoring meeting rights can escalate the conflict, even when the amounts are substantively correct.
Monitor the deadlines separately. Art. 2:394(2) DCC provides for publication of prepared but not yet adopted annual accounts once the applicable period has expired. A shareholder dispute does not automatically extend the maximum publication period. For a filing without adoption, do not enter a fictitious adoption date and state the correct status. Coordinate the technical route with your intermediary or the KVK. The aim is that the absence of a decision is not confused with the absence of any duty to publish. The shareholder issue must also be resolved separately.
Which filing deadline keeps running?
Keep discharge and appropriation of result recognisably separate from adoption. A shareholder may agree with the figures but object to the discharge or a distribution. Record the decision and the votes for each topic. If, after discussion, amended annual accounts are adopted, make sure they are signed properly and published afterwards. Keep a record of which version was discussed on which date. Do not send a bank or investor a report labelled 'adopted' as long as that is not true. A careful file makes clear what financial information is available, which objection is still open and which formal steps have since been completed.
Sources
Frequently asked questions
Is a single vote against always a veto?
No. The required majority follows from the law and the articles of association.
What if the figures are substantively wrong?
Examine the specific line item and, where necessary, correct an error before the decision is taken.
Can a disagreement suspend the filing?
Not indefinitely. Assess the route for annual accounts that have been prepared but not adopted.
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Preparing Dutch annual accounts?
Your first set of annual accounts is free, for every size class. Create an account and prepare the annual accounts of your Dutch company under Title 9 of Book 2 of the Dutch Civil Code.
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