Does signing at my holding mean adoption at once?
Often yes, if all shareholders are also directors and the statutory conditions are met. Check other meeting rights and the articles of association.
The short answer
Often yes, if all shareholders are also directors and the statutory conditions are met. Check other meeting rights and the articles of association.
Basis: art. 2:210(5), 2:238 and 2:394 DCC
When does adoption by signing apply?
A holding with one DGA (director-major shareholder) can fall under art. 2:210(5) DCC. Signing the annual accounts then counts, under conditions, as adoption as well. The label 'holding' is not decisive. You must look at the legal shareholder, directors, supervisory directors and any other persons entitled to attend meetings at the time of completion.
First read the current articles of association. They can exclude adoption by signing. Then check the shareholders' register and the formal board structure. With depositary receipts issued via a stichting administratiekantoor (trust office), the DGA's economic position is not the same as direct shareholding. An extra shareholder who is not a director can also mean that the special route does not fit. So do not rely solely on how the company is described in everyday conversation. If in doubt, have it established who the shareholders and persons entitled to attend meetings are before you assume that the signature automatically produces a shareholders' resolution.
Which signatures and consents are sometimes missing?
The statutory route requires signing by all directors and supervisory directors. Other persons entitled to attend meetings must be given the opportunity to take note of the prepared annual accounts and agree to this manner of adoption. Record the relevant circumstances in the file. A sole shareholder who is also the sole director and has no other entitled persons involved is in a simpler situation than a holding with a supervisory board. Do not use a standard statement that wrongly says there are no other entitled persons. The facts behind that sentence determine whether the chosen procedure can really be used.
Look at the operating company separately. There the holding may be the shareholder and another person or legal entity the director. That the same DGA ultimately steers everything does not make the formal composition equal by itself. A shareholders' resolution of the holding about its subsidiary is moreover a different document from the adoption of the holding's own annual accounts. So set out in a chart for each BV who prepares, who signs and who adopts. Link the documents to the right KVK number. That prevents a signature for one company being used as evidence for the other.
How do you assess the operating company separately?
Take into account the consequences of this manner of adoption. Art. 2:210(5) DCC departs from the ordinary adoption rule for discharge; that is not unlimited protection against every liability. The adoption date also starts the filing period of art. 2:394 DCC. If you sign early, publication may therefore be needed early too. Keep the signed version and note the submission action straight away. If the special route is excluded or the conditions are not met, organise a regular resolution, if applicable outside a meeting under art. 2:238 DCC. A missing meeting does not mean decision-making is unnecessary.
Sources
Frequently asked questions
Can a holding exclude the exception?
Yes. Check whether the articles of association exclude adoption by signing.
Must a supervisory director also sign?
If the company has supervisory directors, their signatures belong to the statutory route.
Is the DGA directly a shareholder of the subsidiary?
Not automatically. For an operating company, it may be the holding that is the shareholder.
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