Can I adopt my annual accounts in writing?
Yes. A BV can take decisions outside a meeting, provided all persons entitled to attend agree to that route and the votes are recorded.
The short answer
Yes. A BV can take decisions outside a meeting, provided all persons entitled to attend agree to that route and the votes are recorded.
Legal basis: art. 2:238, 2:210 and 2:394 DCC
Who must agree to taking decisions outside a meeting?
Art. 2:238 DCC allows shareholders of a BV to take decisions outside a meeting. This means you do not always have to meet in person to adopt the annual accounts. The procedure does have conditions, though. A mere statement from the largest shareholder that the figures are fine is not sufficient.
First identify everyone entitled to attend meetings. These are not necessarily only the shareholders with voting rights; other persons may also have to be involved in the decision-making on the basis of their rights. All persons entitled to attend meetings must agree to taking the decision outside a meeting. This consent concerns the procedure. It is something different from agreeing to the content of the annual accounts. The decision on the content follows the applicable voting rules. Keep both elements separately identifiable in the file. If someone does not agree to the route, you must organise another valid way of taking the decision.
How do you record votes in writing?
Record the votes in writing. Under art. 2:238(2) DCC, a written or electronic resolution stating the vote of each shareholder can also meet that requirement. Voting and consenting electronically is possible unless the articles of association provide otherwise. The directors and supervisory directors must be given the opportunity to advise beforehand. Send the correct version of the annual accounts and the proposed resolution in good time. State the name of the BV, the financial year and the date of the decision, so it is not unclear later what the consent related to.
Do not combine adoption and discharge unnoticed. Art. 2:210(3) DCC provides that ordinary adoption of the annual accounts does not in itself amount to discharge of the directors and supervisory directors. If you want to decide on that, make it recognisable as a separate item and have the wording reviewed if in doubt. The special route where all shareholders are also directors is set out in art. 2:210(5) DCC and has its own conditions and consequences. That route is not the same as any arbitrary written shareholder resolution. Choose deliberately which procedure applies in your situation.
What happens after adoption?
Keep the consents, votes cast, opportunity to advise and the adopted version together. Then let the date of adoption feed into the planning for filing. Art. 2:394 DCC in principle requires publication within eight days after adoption. A digital signing tool can support the record-keeping, but does not by itself assess whether everyone was authorised or whether the articles of association were followed. With different shareholders, depositary receipts or a dispute, a check by a notary or lawyer is advisable. For a straightforward BV, written decision-making can be efficient, as long as you take the formal steps and the evidence of them seriously.
Sources
Frequently asked questions
Is an e-mail resolution always sufficient?
Record the consent, the votes cast and the opportunity to give advice in accordance with the applicable rules.
Is discharge automatically part of adoption?
No. Treat discharge as a separate resolution, unless the statutory exception applies.
When does the filing period start?
After valid adoption, the annual accounts must in principle be made public within eight days.
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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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