ការបង្កើត BV របស់ហូឡង់៖ ជំហានផ្នែកច្បាប់ដែលអ្នកមិនអាចរំលងបាន

A Dutch BV (besloten vennootschap, private limited company) comes into existence when a Dutch civil-law notary executes the deed of incorporation, and there is no minimum capital: one share of one euro cent is enough. The main exception to the protection a BV offers: until the BV is registered in the Commercial Register (handelsregister) of the Chamber of Commerce (KVK), the directors are jointly and severally liable alongside the company under Article 2:180(2) of the Dutch Civil Code (BW).

Whether the structure holds up depends less on the notary appointment than on what you settle beforehand: who holds which shares, what the articles of association say, and whether there is a shareholders’ agreement. Below we work through the steps in order, the duties that start once the BV exists, and the mistakes that are expensive to repair.

តើពេលណា BV ជាជម្រើសត្រឹមត្រូវ?

When the liability risk of the business justifies the extra obligations. The comparison is with the សហគ្រាស​ឯកបុគ្គល (eenmanszaak) and the general partnership (vennootschap onder firma).

A sole proprietor has no separate legal personality: business debts are personal debts. In a general partnership each partner is jointly and severally liable for all partnership debts. A BV is a separate legal person: under Article 2:175 BW a shareholder is not personally liable for what is done in the company’s name and does not have to contribute to losses beyond what must be paid up on the shares.

Against that stand real obligations: bookkeeping, annual accounts to be filed, a customary salary for a director-major shareholder and notary costs. The tax comparison between income tax and corporation tax changes every year with the Tax Plan (Belastingplan) and is a question for a tax adviser, before the deed is signed. The useful legal test is: what would it cost you personally if a large claim arrived tomorrow?

What do you settle before seeing the notary?

The name, the share structure, a possible holding company and the articles of association. Changing the articles later requires a new notarial deed.

ឈ្មោះ

Check the Commercial Register for identical or confusingly similar trade names. The Trade Name Act (Handelsnaamwet) prohibits a name that is likely to cause confusion with an existing business or that misleads about the ownership or legal form. Registration with the KVK gives no exclusive right; if the brand is central, a Benelux trade mark registration does.

Shares and control

Decide who holds what, and separate economic entitlement from control. Under Article 2:228(5) BW the articles may create shares without voting rights, provided all holders of those shares agree, and the articles can also create shares without profit entitlement. A 50/50 split between two founders generates the most disputes, because neither can carry a resolution alone.

A holding company

Many founders hold the shares in the operating BV through a personal holding BV. The legal advantage is risk separation: profits paid up to the holding are out of reach of the operating company’s creditors, and the operating company can be sold on its own. A distribution must pass the distribution test of Article 2:216 BW, and payments made when the operating company is already in difficulty can be set aside as prejudicial to creditors. The tax side belongs with your tax adviser.

The articles of association

The articles are the company’s constitution: name, seat, objects, share capital, appointment and dismissal of directors, decision-making in the general meeting, and share transfer restrictions. Under Article 2:195(1) BW, unless the articles provide otherwise, a shareholder who wants to sell must first offer the shares to the co-shareholders. Have the articles drafted for your situation rather than copied from a template.

What happens at the notary?

The notary executes the deed of incorporation, which contains the articles. Under Article 2:176(1) BW the deed is drawn up in Dutch, and a power of attorney to cooperate in it must be in writing, so founders do not need to attend in person.

The notary verifies the founders’ identity and carries out the client due diligence required under the Anti-Money Laundering and Anti-Terrorist Financing Act (Wwft). For foreign founders, see our guide to ការបង្កើត Dutch BV ជាមួយភាគទុនិកបរទេស.

Why is one euro cent of capital not a plan?

The minimum capital of €18,000 was abolished on 1 October 2012 with the Flex-BV legislation. Creditor protection now comes from liability rules. Under Article 2:216(2) BW the board must refuse to approve a distribution if it knows or should foresee that the company will then be unable to pay its due debts. Under Article 2:216(3) BW directors who approve such a distribution are jointly and severally liable for the shortfall.

A company started with far less capital than its activities require also exposes its directors to liability in tort, for entering into obligations they knew the company could not meet.

ការចូលរួមវិភាគទានជាសាច់ប្រាក់ ឬជាវត្ថុ

Shares can be paid up in cash or by contributing assets, such as equipment, intellectual property or an existing business. Under Article 2:204 BW, arrangements on a contribution in kind must be included in full in the deed or attached to it. When converting a sole proprietorship, assets must be transferred in the correct form, contracts pass to the BV only with the counterparty’s cooperation, and staff who move with the business keep their terms under the rules on transfer of undertaking.

Notary fees are not regulated, so ask two or three notaries for a fixed written quotation. The KVK charges a one-off registration fee, published on kvk.nl.

Why does registration with the Chamber of Commerce matter?

Because it closes a window of personal liability. The BV exists from the deed, but under Article 2:180(2) BW the directors are jointly and severally liable alongside the company for every legal act binding the BV until the application for first registration, with the required copies, has been filed.

Before incorporation, the risk runs the other way. Under Article 2:203 BW, those who act in the name of a BV still to be formed are personally liable until the BV ratifies the act after incorporation. Sign a lease for your BV in formation and the obligation is yours until the company adopts it. Our article on the BV in formation and pre-incorporation liability explains ratification.

Registration gives the company a KVK number and an RSIN, the number the Belastingdienst uses for legal entities. If the activities are subject to VAT, the Belastingdienst issues a VAT identification number separately. Request a ស្រង់ចេញបញ្ជី once the entry is live; banks and landlords will ask for it.

What must you report to the UBO register?

The ultimate beneficial owners. Under Article 3 of the Wwft Implementing Decree 2018 (Uitvoeringsbesluit Wwft 2018), these include anyone who directly or indirectly holds more than 25% of the shares, voting rights or ownership interest, or otherwise has control. If no one meets the test, the senior managers are registered as pseudo-UBOs.

Since the Court of Justice of the EU ruled on 22 November 2022 that unrestricted public access was incompatible with fundamental rights, the Dutch ចុះឈ្មោះ UBO is no longer open to the general public. Authorities and institutions with anti-money-laundering obligations, such as banks and notaries, still have access.

ហេតុអ្វីបានជាអ្នកត្រូវការកិច្ចព្រមព្រៀងភាគទុនិក?

Because the articles are public and cannot contain everything founders need to agree. The កិច្ចព្រមព្រៀងម្ចាស់ភាគហ៊ុន is the private contract that fills the gap, and leaving it out is the most expensive omission in this guide.

On control, it covers decisions requiring more than a simple majority, deadlock, and non-competition and confidentiality. On exit, it covers transfer restrictions, a right of first refusal, what happens when a founder leaves, dies or becomes incapacitated, how the price is set, and drag-along and tag-along rights. Name a valuation method or valuer, not merely “a fair price”.

Without an agreement, you fall back on statute. Under the dispute settlement rules of Articles 2:335 to 2:343 BW, now heard by the Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal, a shareholder can be ordered to transfer his shares or to take over those of another. Beyond that lie inquiry proceedings before the Enterprise Chamber. See our articles on what a shareholders’ agreement must cover និង ជម្លោះភាគហ៊ុននៅប្រទេសហូឡង់.

Which duties start once the BV exists?

Separate administration, a customary salary, annual accounts and, for directors, awareness of personal liability. Each has a statutory basis and a deadline.

តើនៅពេលណាដែលនាយកទទួលខុសត្រូវផ្ទាល់ខ្លួន?

Dutch law has no general doctrine of piercing the corporate veil, but it has director liability. Under Article 2:9 BW a director must perform his duties properly towards the company. Towards creditors, a director who enters into obligations he knows the company cannot meet can be liable in tort under Article 6:162 BW.

In bankruptcy, under Article 2:248(1) BW each director is jointly and severally liable for the deficit if the board manifestly performed its duties improperly and this is likely an important cause of the bankruptcy. Under Article 2:248(2) BW, failure to keep proper records (Article 2:10 BW) or to file the annual accounts on time (Article 2:394 BW) establishes improper performance and creates a presumption that it was an important cause. Give the BV its own bank account and document every transaction between you and the company. See our article on នៅពេលដែលនាយកទទួលខុសត្រូវផ្ទាល់ខ្លួន.

Management agreement and dismissal

The relationship between the director and the company is often recorded in a កិច្ចព្រមព្រៀងគ្រប់គ្រង, frequently between the holding and the operating company. Under Article 2:244 BW a director can be suspended and dismissed at any time by the body that appointed him. Record the financial consequences of departure in advance.

Customary salary

A director-major shareholder must receive a customary salary (gebruikelijk loon) under the payroll tax rules. The Belastingdienst publishes the minimum amount each year, and the former 75% efficiency margin no longer applies since 1 January 2023. Set the amount with your tax adviser and review it annually.

គណនីប្រចាំឆ្នាំ

Under Article 2:210 BW, the board draws up the គណនីប្រចាំឆ្នាំ within five months after the end of the financial year, extendable by the general meeting by up to five months on special grounds. Under Article 2:394 BW, the accounts must be filed with the Commercial Register within eight days of adoption and in any event within twelve months after the end of the financial year. Treat that deadline as hard: late filing triggers the presumption of Article 2:248(2) BW in a later bankruptcy.

What should you check before the deed is signed?

• Is the trade name free of confusion with existing names in the Commercial Register?
• Have you decided the share structure, including any non-voting shares or a holding company?
• Are the articles drafted for your situation, including transfer restrictions?
• Is the shareholders’ agreement ready to sign together with the deed?
• Have you received tax advice on the structure and the conversion of any existing business?
• Do you have a fixed written quotation from the notary?

What can we do for you when setting up a BV?

របស់​យើង មេធាវីជំនួញ និង មេធាវីក្រុមហ៊ុន guide founders from the choice of legal form to the first annual accounts. Our overview of ហានិភ័យរបស់ក្រុមហ៊ុនហូឡង់ដែលត្រូវជៀសវាង lists the practical pitfalls.

• We advise on the choice of legal form and the share structure.
• We draft the articles of association and coordinate the deed with the notary.
• We draft the shareholders’ agreement and the management agreement.
• We review contracts signed for the BV in formation and arrange ratification.
• We act in shareholder disputes and in claims against directors.

សេចក្តីសង្ខេប

• A BV exists from the notarial deed; there is no minimum capital.
• Until registration with the KVK, directors are jointly and severally liable alongside the BV (Article 2:180(2) BW).
• A shareholders’ agreement settles control and exit, which the public articles cannot.
• Distributions must pass the test of Article 2:216 BW, and poor records or late accounts create a presumption of improper management in bankruptcy.
• Annual accounts must be filed within twelve months after the end of the financial year at the latest.

សំណួរ​ដែលគេ​ច្រើន​សួរ