In the Netherlands: the “BV”

In France: the “SAS”

Minimum Share capital

EUR 1 or even less

EUR 1 or even less

Class of shares

Different classes of shares  may be created and included in the Articles of Association. In addition to ordinary shares, it is also possible to create other types of shares, such as preference shares (carrying financial benefits), priority shares (conferring rights of corporate control), non-voting shares and shares without a profit entitlement

Different classes of shares  may be created and included in the Articles of Association. In addition to ordinary shares, it is also possible to create other types of shares, such as preference shares (carrying financial benefits), priority shares (conferring rights of corporate control), non-voting shares and shares without a profit entitlement

Minimum number of shareholders

1

1

Incorporation formalities

Incorporation of a B.V. takes place through the execution before a Dutch Civil Law Notary of a notarial Deed of Incorporation. The Deed of Incorporation has to be executed in the Dutch language and has to contain the following:

  • Details regarding the shares issued upon incorporation, the payment of the shares (in cash or in kind) and details regarding the incorporator(s) / shareholder(s);
  • The appointment of the first (registered) managing directors and (optional) the first supervisory directors; and
  • The company's Articles of Association.

Immediately following the incorporation, the B.V. must be registered with the Commercial Register (of the Chamber of Commerce) in the Netherlands. If the B.V. has only one shareholder, this fact and the identity of the shareholder will be mentioned on the extract of the company's registration details, which is publicly available.

Incorporation of an SAS is less formal.

The shareholders must deposit the share capital at the bank who will issue a Depositary Certificate.

The shareholders then sign the Articles of Association (“statuts”), in which they can appoint the first director(s) (such appointment can be done straight after during a shareholder’s meeting).

For the SAS to be incorporated, the Articles of Association must be registered (for free) at the tax office, the creation of the company is also published in a newspaper for legal notices and it is then registered with the Registrar of Companies (“Registre du Commerce et des Sociétés (RCS)” which is held at the Commercial Court. The RCS will then issue a “k-bis” which will be the identification of the company. It contains all the information regarding the company’s registered office, its share capital, its directors etc …

Management and Supervision

The B.V. must have at least one Managing Director. There are no legal requirements regarding the number, nationality or residence of managing directors. Individuals as well as legal entities can be managing directors.

In addition to a Board of Managing Directors, the Articles of Association may provide for:

(i) a Board of Supervisory Directors, or
(ii) for a one-tier Board, with Executive and Non-executive Directors to supervise the Management/Executive Directors.

Legal entities may not be supervisory directors. The company's Articles of Association have to contain specific regulations regarding the absence or the inability to act of all directors.

The Board of Managing Directors of the company, as such, is always authorized to represent the company towards third parties.

It is not uncommon for Articles of Association of Dutch Companies to provide that: (i) the signatures of a particular number or class of managing directors, acting together, are required to represent the company, and/or  (ii) certain management decisions/actions are made subject to the prior approval of the General Meeting of Shareholders or the Board of Supervisory Directors.

The SAS must have one President. There are no legal requirements regarding the nationality or residence of the President. Individuals as well as legal entities can be President.

Next to the President, the shareholders can appoint several managing directors, who must be individuals and cannot be legal entities.

In addition, the shareholders can decide to have a Board of Directors, a Board of Supervisory Directors etc …which they can call what they like and decide what powers these boards have.

In a nutshell the shareholders are free to create whatever kind of management structure they want.

Corporate Tax

25% (20 % over the first EUR 200.000 profit)

33.33 %

Transfer of shares

By law transfer restrictions with respect to the transfer of shares to others  than fellow shareholders, spouses, close relatives and the company itself (third parties), are applicable. The transfer restriction by law results in the obligation of the transferring shareholder to first offer the shares to the fellow shareholders. If a transfer restriction is not required or if another substantiation of transfer restrictions is considered appropriate, these other arrangements must be included in the Articles of Association.

The Articles of Association can provide transfer restrictions for the transfer of shares to third parties, but also to fellow shareholders, spouses and close relatives –, it is up to the shareholders to decide how flexible they want to be with the transfer of shares.

Fiscal year

The deed of incorporation may stipulate that the company's first fiscal year is either shorter or longer than twelve months. The maximum is 24 months minus one day. This has various tax consequences and should therefore be discussed with a Dutch tax consultant.

The deed of incorporation may stipulate that the company's first fiscal year is either shorter or longer than twelve months. The maximum is 24 months minus one day.

Shareholder’s meeting

There is one yearly shareholders' meeting for the approval of the annual accounts. Other meetings are convened as often as the Board of Directors or shareholders deem necessary. The company's Articles of Association contain specific requirements for a general meeting.

There is one yearly shareholders' meeting for the approval of the annual accounts. Other meetings are convened as often as the President or shareholders deem necessary. The company's Articles of Association will contain the specific requirements for a general meeting (notice, voting majority etc …)

Statutory Auditor

The B.V. must only appoint a statutory auditor if it satisfies at least 2 of the 3 following thresholds:

-          Total of assets equal to or more than EUR 4.4 million;

-          A net turnover equal to or more than EUR 8.8 million;

-          An average of at least 50 employees.

An SAS must only appoint a statutory auditor is if it reaches at least 2 of  the 3 following thresholds:

-          Total assets of at least EUR 1 million

-          A turnover of at least EUR 2 milllion

-          An average of 20 employees

Contractual right before incorporation

In the meantime it is possible to assume contractual rights and obligations on behalf of a B.V. in formation. Unless otherwise stipulated, the person acting on behalf of the B.V. in formation, will be liable towards the contracting third party for the obligations entered into, until these contracts are ratified by the B.V. upon incorporation.

In the meantime it is possible to assume contractual rights and obligations on behalf of an SAS in formation. The person acting on behalf of the SAS. in formation, will be liable towards the contracting third party for the obligations entered into, until the same are specifically ratified by the SAS upon incorporation.

Contact Information

Should you have any questions about the incorporation of a B.V. or doing business in the Netherlands in general, please do not hesitate to contact Janou Briaire.

T +31 (0)88 3040 107

briaire@boelszanders.nl

Should you have any questions about the incorporation of a SAS or doing business in France in general, please do not hesitate to contact Michel Kukula-Descelers.

T +33 3 28 52 95 00

mkukuladescelers@cvs-avocats.com