Article 2:216 DCC: distributing from a Dutch BV with the balance test and distribution test
A Dutch BV may distribute to the extent that its equity exceeds the statutory reserves and the reserves required by its articles of association: the balance test of paragraph 1. The resolution only takes effect after approval by the board, which must refuse if it knows or ought to foresee that the BV will not be able to keep paying its due debts afterwards (paragraph 2). Anyone who ignores this can be held liable (paragraph 3).
The short answer
A Dutch BV may distribute to the extent that its equity exceeds the statutory reserves and the reserves required by its articles of association: the balance test of paragraph 1. The resolution only takes effect after approval by the board, which must refuse if it knows or ought to foresee that the BV will not be able to keep paying its due debts afterwards (paragraph 2). Anyone who ignores this can be held liable (paragraph 3).
Updated 30 October 2026
Key facts
| Statutory text | Art. 2:216(1)–(11) DCC, text in force from 1 July 2026; the balance test and distribution test have applied since 1 October 2012, last amended on 1 January 2015 |
| Who it applies to | Every BV, from micro to large; for the NV, art. 2:105 DCC applies, where the paid-up and called-up capital is protected as well |
| Protected equity | Statutory reserves (art. 2:373(4) DCC) and reserves under the articles of association; not the issued capital of a BV |
| Guidelines | RJ 240 and RJk B8 (equity and statutory reserves); RJ 160 for dividend after the balance sheet date |
Paragraph 1: the balance test
1. The general meeting is authorised to appropriate the profit determined by the adoption of the annual accounts and to determine distributions, to the extent that equity exceeds the reserves that must be maintained under the law or the articles of association. The articles of association may limit the powers referred to in the first sentence or grant them to another body.
The general meeting decides on the profit and on other distributions, such as a distribution from the reserves or an interim dividend. It may do so only for the part of equity above the restricted reserves. The restricted reserves are the statutory reserves, for example for capitalised development costs (art. 2:365(2) DCC), for retained profits of participating interests (art. 2:389(6) DCC) and for revaluations (art. 2:390 DCC), plus the reserves required by the articles of association. The issued capital and the share premium of a BV are not protected; for an NV the paid-up and called-up capital is protected (art. 2:105(2) DCC).
An adopted set of annual accounts is not required for a distribution, unless the articles of association ask for it. The test applies to the position at the moment of the distribution. A holding company with participating interests valued at net asset value must watch the statutory reserve for participating interests: profit that the participating interest cannot distribute without restriction remains restricted. According to RJ 240.228 and RJk B8.113a, such a restriction can also result from the distribution test at the participating interest itself.
Paragraph 2: the distribution test by the board
2. A resolution to make a distribution has no effect as long as the board has not given its approval. The board may refuse approval only if it knows or reasonably ought to foresee that the company will not be able to continue paying its due debts after the distribution.
The resolution of the meeting only takes effect once the board approves it. The board tests one thing: can the BV keep paying its due debts after the distribution? The law names no period. A liquidity forecast covering at least the coming year is a defensible starting point, paying attention to large payments falling just after that, such as a repayment or a tax assessment. Record the forecast and the resolution; that is later the evidence that the board acted with care.
Paragraphs 3 and 4: liability of directors and recipients
3. If, after a distribution, the company cannot continue paying its due debts, the directors who knew or reasonably ought to have foreseen this at the time of the distribution are jointly and severally liable to the company for the shortfall caused by the distribution, with statutory interest from the day of the distribution. Article 248(5) applies mutatis mutandis. A director is not liable if he proves that it is not attributable to him that the company made the distribution and that he was not negligent in taking measures to avert the consequences. A person who received the distribution while he knew or reasonably ought to have foreseen that the company would not be able to continue paying its due debts after the distribution is obliged to compensate the shortfall caused by the distribution, each for at most the amount or value of the distribution he received, with statutory interest from the day of the distribution. If the directors have satisfied the claim under the first sentence, the compensation referred to in the fourth sentence is made to the directors, in proportion to the part that each of the directors has paid. In respect of a debt under the first or the fourth sentence, the debtor is not entitled to set off.
4. For the application of paragraph 3, a director is equated with a person who determined or co-determined the policy of the company as if he were a director. The claim cannot be brought against the administrator appointed by the court.
The liability is owed to the BV; in bankruptcy the trustee brings the claim. It is limited to the shortfall caused by the distribution, and therefore never higher than the amount distributed, plus statutory interest. A director escapes it only by proving that the distribution cannot be blamed on him and that he tried to prevent the consequences. A shareholder who knew or reasonably ought to have foreseen that the BV would no longer be able to pay its debts also repays, up to the amount received. Anyone who in practice runs the company without a formal appointment is treated as a director (paragraph 4).
Paragraphs 5 to 11: calculation rules and room for the articles of association
5. In calculating any distribution, shares held by the company in its own capital are not counted, unless the articles of association provide otherwise.
6. In calculating the amount to be distributed on each share, only the amount of the mandatory payments on the nominal amount of the shares is taken into account. The articles of association, or in each case all shareholders by consent, may deviate from the previous sentence.
7. The articles of association may provide that shares of a certain class or designation carry no right, or only a limited right, to share in the profit or reserves of the company.
8. A provision in the articles of association as referred to in paragraph 6 or paragraph 7 requires the consent of all holders of shares whose rights are affected by the amendment of the articles of association.
9. The articles of association may provide that a shareholder's claim does not lapse by the passage of five years, but only after a longer period. Such a provision applies mutatis mutandis to the claim of the holder of a depositary receipt for a share against the shareholder.
10. The articles of association may provide that the profit to which holders of shares of a certain class are entitled is wholly or partly reserved for their benefit.
11. Paragraph 3 does not apply to distributions in the form of shares in the capital of the company or to credits to shares that are not fully paid up.
Own shares do not share in the distribution (paragraph 5). The distribution follows the mandatory paid-up nominal amount, unless the articles of association or all shareholders choose otherwise (paragraph 6). The articles of association may allow shares without or with limited profit rights (paragraph 7) and reserve profit per class of shares (paragraph 10). A stock dividend or a credit to shares that are not fully paid up takes no money out of the BV; paragraph 3 therefore does not apply there (paragraph 11).
How the size class affects the balance test
Article 2:216 applies in the same way to every BV. What differs is how much of the equity is visible on the balance sheet, and therefore how much you must keep track of outside the annual accounts. Thresholds for financial years from 1 January 2024:
| Class | Equity in the annual accounts | Consequence for the test |
|---|---|---|
| Micro (balance sheet total ≤ € 450.000, net turnover ≤ € 900.000, < 10 employees) | One amount (art. 2:395a(4) DCC) | Keep the statutory reserves and the reserves under the articles of association in your own records; the balance sheet does not show them |
| Small (balance sheet total ≤ € 7,5 mln, net turnover ≤ € 15 mln, < 50 employees) | The items of art. 2:373 DCC separately (art. 2:396(3) DCC) | The restricted reserves are on the balance sheet. On a tax basis no revaluation reserve arises |
| Medium-sized (balance sheet total ≤ € 25 mln, net turnover ≤ € 50 mln, < 250 employees) | Fully broken down, with a statement of movements (art. 2:378 DCC) | Same, with RJ 240 |
| Large (balance sheet total > € 25 mln, net turnover > € 50 mln, ≥ 250 employees) | As medium-sized | Same |
Financial years 2025, 2026 and 2027 and the equity guideline
The text of article 2:216 is the same for these financial years; no amendment has been announced. What does change is RJ 240: the Dutch Accounting Standards Board (RJ) has revised the equity chapter for reporting years beginning on or after 1 January 2027. For 2025 and 2026 the previous version applies. The statutory reserves themselves come from the law and therefore do not change.
Case: an engineering company wants to distribute € 300.000
Brouwer Techniek BV has equity of € 540.000 at 31 December 2025:
| Item | Amount | Restricted? |
|---|---|---|
| Issued capital | € 100 | No (BV) |
| Share premium | € 49.900 | No |
| Statutory reserve for development costs | € 60.000 | Yes |
| Reserve under the articles of association | € 25.000 | Yes |
| Other reserves | € 310.000 | No |
| Result 2025 | € 95.000 | No |
| Total equity | € 540.000 | restricted € 85.000 |
Balance test. At 31 December 2025 the room is € 540.000 − € 85.000 = € 455.000. The figures at 30 June 2026 show € 40.000 of extra profit and no new restricted reserves, so at the moment of distribution the room is € 495.000. A distribution of € 300.000 fits.
Distribution test. The board prepares a forecast from 1 July 2026, with € 380.000 in the bank:
| Quarter | Receipts | Expenditure | Bank balance without dividend |
|---|---|---|---|
| Q3 2026 | € 90.000 | € 160.000 (of which corporate income tax assessment 2025 € 70.000) | € 310.000 |
| Q4 2026 | € 110.000 | € 80.000 | € 340.000 |
| Q1 2027 | € 100.000 | € 120.000 (of which repayment € 40.000) | € 320.000 |
| Q2 2027 | € 120.000 | € 70.000 | € 370.000 |
The lowest point is € 310.000, at the end of September 2026. After a € 300.000 dividend only € 10.000 of that remains, while one large customer with € 60.000 outstanding is known as a late payer. The board keeps a buffer of € 80.000 and refuses approval for € 300.000. The meeting then resolves on € 230.000; the lowest point becomes € 80.000 and the board approves.
Had the board approved the € 300.000 anyway and the BV been unable to pay its debts in the third quarter, the directors would have been jointly and severally liable to the BV for the shortfall caused by the distribution, at most € 300.000 plus interest. A shareholder who knew the forecast would have had to repay his share.
Where distributions go wrong
- Looking only at the balance sheet. The balance test is the first step; without a distribution test and approval by the board the resolution has no effect.
- Not forming the statutory reserve for capitalised development costs or participating interests, so that the room looks too high.
- A micro BV that sees only one line of equity on its balance sheet and therefore forgets restricted reserves.
- Not recording a forecast, or using only the position at the balance sheet date although the distribution takes place months later.
- Thinking that the capital of the BV is protected, or conversely that a BV without capital protection can distribute without limit.
- Recognising dividend decided after the balance sheet date as a liability on the balance sheet at the balance sheet date; see dividend after the balance sheet date and RJ 160.
What else matters in a distribution
- Article 2:373 DCC: the classification of equity and the statutory reserves.
- Article 2:389 DCC and article 2:390 DCC: the reserve for participating interests and the revaluation reserve.
- Article 2:210 DCC: the adoption that determines the profit; article 2:248 DCC: liability in bankruptcy.
- RJ 240 and the terms balance test and distribution test.
- How much dividend may I pay out? and what are statutory reserves?
How it works in Jaarrekening.io
On the Balance sheet & P&L page, Jaarrekening.io shows the balance test for an NV, and for a BV with statutory reserves or reserves under its articles of association: equity, the statutory reserves and reserves under the articles, and the room that remains, with a notice if the reserve for capitalised costs is too low. The distribution test of paragraph 2 is not calculated by the annual accounts; that is a judgment of the board. In the Taxes module, which is coming soon, a Dividend distribution test worksheet will follow, with drafts for the resolution, the board's approval and the dividend note.
Sources
- Art. 2:216 DCC: distributions by the BV, text in force from 1 July 2026 (wetten.overheid.nl, in Dutch)
- Art. 2:105 DCC: distributions by the NV (para. 2), text in force from 1 July 2026 (wetten.overheid.nl, in Dutch)
- Art. 2:373 DCC: equity and statutory reserves, text in force from 1 July 2026 (wetten.overheid.nl, in Dutch)
- Art. 2:365 DCC: reserve for capitalised costs (para. 2), text in force from 1 July 2026 (wetten.overheid.nl, in Dutch)
- Guidelines for annual reporting of the Dutch Accounting Standards Board (rjnet.nl, in Dutch)
Frequently asked questions
How much dividend may a Dutch BV pay out?
At most the part of equity that exceeds the statutory reserves and the reserves required by the articles of association (art. 2:216(1) DCC), and only if the board approves the resolution. The board refuses if it knows or reasonably ought to foresee that the BV will not be able to keep paying its due debts afterwards (para. 2). The smaller of the two amounts is therefore the limit.
What is the difference between the balance test and the distribution test?
The balance test (art. 2:216(1) DCC) looks at equity: a distribution is only allowed above the restricted reserves. The distribution test (para. 2) looks at liquidity after the distribution: can the BV keep paying its due debts? The general meeting takes the resolution within the balance test; the board performs the distribution test and gives its approval.
Is a director liable if the BV cannot pay its debts after a dividend distribution?
Yes, if the director knew or reasonably ought to have foreseen this at the time of the distribution. The director is then jointly and severally liable to the BV for the shortfall caused by the distribution, with statutory interest from the date of the distribution (art. 2:216(3) DCC). The only way out is to prove that it cannot be blamed on the director and that the director was not negligent in taking measures to avert the consequences.
Must a shareholder repay an excessive dividend?
If the shareholder knew or reasonably ought to have foreseen at the time of receipt that the BV would not be able to keep paying its due debts afterwards, yes: up to the amount received, with statutory interest (art. 2:216(3) DCC). If the directors have already made good the shortfall, the shareholder repays them. Set-off against a claim on the BV is not allowed.
Is the issued capital of a Dutch BV protected in a distribution?
No. The balance test of a BV only looks at the reserves prescribed by law or by the articles of association. For an NV it is different: there the paid-up and called-up part of the capital is protected as well (art. 2:105(2) DCC).
Is an adopted set of annual accounts needed for an interim distribution?
The law does not require this for a BV; the articles of association may. The balance test and the distribution test apply to the position at the moment of the distribution. Use current figures and a liquidity forecast, not only the latest annual accounts.
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