Transfer of a Company’s Corporate Seat to the Netherlands

Статья посвящена актуальным вопросам, связанным с корпоративным правом Королевства Нидерландов. В частности, автор рассматривает две возможности для иностранной корпорации стать корпорацией голландской:

– слияние с вновь созданной голландской корпорацией,

– учреждение так называемой “европейской компании”.

В первом случае автор рекомендует для компаний, образованных вне Европейского Союза (ЕС), сперва трансформироваться в компанию одной из стран-членов ЕС.

Тhis article will dis­cuss the transfer of corporate seat to the Netherlands from either a European Union (hereinafter — EU) Mem­ber State or a non-EU Member State. The prevailing doctrine in the Netherlands is that of incor­poration. Contrary to the real seat doctrine, the incorporation doc­trine views the law of the State where a company was founded as the applicable law, not the law of the state where the company has its corporate seat. Therefore, a direct transfer is not legally possible as Dutch law will con­tinue to view the company as foreign. For the company this would result in less (tax) benefits. There are two options available to a foreign company wishing to transfer its corporate seat to the Netherlands: i) merging with a newly-established Dutch com­pany; and ii) forming a European Company also known as Societas Europaea (hereinafter — SE).

Due to the fact that having a corporate seat in the Netherlands will offer many (tax) benefits for companies, a transfer of corpo­rate seat could prove useful for offshore companies currently located in other tax friendly states that are currently sharp­ening their rules in reaction to the ongoing economic crisis. As this diminishes beneficial tax constructions in these states, the Netherlands could be seen as an appropriate alternative in this respect.

Option one: merging with a Dutch company

A company wishing to trans­fer its corporate seat to the Netherlands can do so by estab­lishing a Dutch company accord­ing to the national laws. There are two main types of legal per­sons in the Netherlands, namely: i) a public Limited Liability Compa­ny known as Naamloze Vennoot-schap (applicable rules can be found in articles 64 t/m 174a of the Dutch Civil Code Book 2); and ii) a private Limited Liability Company known as Besloten Vennootschap (appli­cable rules can be found in articles 175 t/m 284 of the Dutch Civil Code Book 2). This part of the article will describe the required procedure in a step-by-step manner as it applies to both types of legal persons.

To start with, a merger can take place directly between EU companies based on the EU Cross Border Merger Directive. Unfortunately, matters will be more complicated when the pro­posed merger concerns a non-EU company and a Dutch company, as such an option is not expedit­ed under Dutch law. This can be solved by first relocating the non-EU company to an EU Member State which allows for easy con­version into a national company of that Member State. The newly converted EU company can then merge with a Dutch company.

Subsequently, the Managing Boards of the companies wish­ing to merge (hereinafter — the Boards) must agree on the com­mon terms of merger (hereinaf­ter — the Terms). These Terms will generally be written in Dutch, as the procedure occurs in the Netherlands and is subject to Dutch law. They must include the financial information of the com­panies wishing to merge as well as the articles of association of the company that remains after the merger.

The Boards must then justify the proposed merger by explain­ing to their respective sharehold­ers and creditors why the merger makes economic and legal sense. Their reasoning must be present­ed in a report, except when all shareholders agree unanimously on the merger. It is important to note that this report will not be public information and is for in­ternal use only.

Furthermore, different in­dependent experts will be hired by each company individually to critically asses the Terms. Their conclusion — based upon their personal research — will be pre­sented to the shareholders as an advice. The value of this advice lies in providing the sharehold­ers with an objective valuation of the proposed merger, thereby limiting the agency problem pre­sented by management’s justi­fication. The advice need not be followed, but it is highly recom­mended for shareholders to do.

Thereafter, several docu­ments will have to be filed with the Kamer van Koophandel (Dutch Trade Register). They in­clude inter alia the Terms, the companies’ financial informa­tion, and the reports written by the independent experts.

Following this, the proposed merger will have to be announced in the Nederlandse Staatscourant (Dutch National Gazette). This gives creditors the opportunity to file an objection against the proposed merger within a month. The grounds for this objection, however, are limited and only claims made by the creditor fear­ing their debts will not, or are less likely to be paid as a result of the merger will be considered.

Afterwards, assuming no objec­tions were filed, the shareholders of the companies wishing to merge must adopt a merger resolution.

As a next step, a certificate issued in the non-Dutch Member State will have to be presented proving that all legal formalities of this Member State were prop­erly completed.

Furthermore, a Dutch notary will have to issue a notarial deed. The merger will take effect the day after this notary deed is issued.

Lastly, official copies of the merger deed will have to be filed with the Kamer van Koophandel and other designated registers.

This whole procedure will take approximately three months. The exact time frame depends upon the mandatory procedure prescribed by the laws of the country where the non-Dutch company was incorporated prior to the merger. This varies greatly between both EU Member States and non-EU Member States. A discussion of this procedure falls outside the scope of this article.

Option two: Forming a European Company (SE)

Since the entry into force of the EU Regulation (EC) No.2157/2001 on 8 October 2004, it has become possible to estab­lish an SE in any EU Member State as long as the merger is not between companies of the same Member State. It is easi­est for an EU company already registered in an EU Member State to be transformed into an SE, but non-EU companies are allowed to participate as well. The condition for this is that the non-EU company is formed under the law of a Member State and has activities in this Member State. The formation of an SE provides fewer (tax) benefits for a non-EU company; and so this option will be dis­cussed in less detail than op­tion one.

The most efficient way for a non-EU company wishing to form an SE is to merge with an EU company as described in option one; however this is only possible for public lim­ited companies. A public lim­ited company is a publicly held company — most commonly used in the United Kingdom — whose shares are freely sold and traded to the public on the stock exchange. Under this construc­tion, shareholders only bear the financial risk of the sum paid for the shares.

A second possibility is the formation of a joint subsidiary in accordance with the national law of the Member State of for­mation. A third possibility is the formation of a holding company, which is possible for both public and private limited companies.

These (newly) formed com­panies can then be transformed into an SE. The law governing the formation of an SE is that of the Member State in which the SE will have its registered office. The advantage of establishing an SE is that the transfer of corpo­rate seat within the EU is made less complicated. The company is not required to wind up the SE or create a new company in the Member State it later wishes to transfer to, and it requires less paperwork than a normal trans­fer of corporate seat. In addition, an SE that has been registered in a Member State for a mini­mum of two years can transform into a national company of that Member State. However, partly due to this two year requirement, the benefits provided by transfer of corporate seat through estab­lishing an SE are limited in com­parison to the time the procedure takes. Furthermore, this option provides less (tax) benefits for a company.

Conclusion

In short, transferring a com­pany’s corporate seat to the Netherlands can be done by either i) a merger with a (newly-established) Dutch company as an EU company or ii) by the for­mation of an SE which will later have benefits for companies wishing to transfer its corporate seat within the EU. In the case of merger, it is recommended for non-EU companies to first trans­form into an EU company in a Member State where the rules are most suitable.

The BENEFITS PROVIDED by TRANSFER of CORPORATE SEAT through ESTABLISHING an SE are LIMITED in COMPARISON to the TIME the PROCEDURE TAKES

Автор: Marlies Kaija Majoppe ENDERINK

Источник: The Ukrainian Journal of Business Law. – 2014. – December. – P. 23 – 24.

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