In general, the consequences of the Brexit in the area of company law are limited. Dutch company law already did not apply to legal entities incorporated under a law other than Dutch law, unless they are so-called Formally Foreign Companies (see below).
However, there are consequences for the possibility of simplified restructuring methods and there are consequences for the financial reporting of Dutch and UK legal entities.
Some consequences of leaving:
a. The directors of an FFC shall (i) register with the Dutch Trade Register that the company is an FFC, (ii) file copies of the deeds of incorporation and articles of association with the Dutch Trade Register, (iii) register with the Dutch Trade Register the foreign register in which the FFC is registered and the registration number, and furthermore (if applicable) provide the personal details of the person holding all the shares in the capital of the FFC;
b. in all writings or documents emanating from an FFC or to which an FFC is a party, specific information shall be included concerning the company and the fact that the company is an FFC shall be mentioned
c. the provisions of Dutch law on the distribution of dividend and reserves, the provisions on repurchase of shares and reduction of capital, the provisions on preparation and filing of the financial statements and the possible liability of directors arising out of these provisions shall apply to the FFC
d. the provisions of Dutch law with regard to the liability of executive and supervisory directors in the event of misleading presentation of the financial statements shall apply to the FFC
e. the directors of the FFC are required, before 1 April of each year, to file a certificate of registration with the commercial register in the register where the company must be registered pursuant to the law applicable to it.
The declarations to the trade register must be made within 3 months after the provisions become applicable to the FFC. Article 11a of the Act specifically provides that for companies incorporated under the laws of the UK, the returns must be made within 3 months after the UK has left the EU, so no later than 30 April 2020. Directors of an FFC will be jointly and severally liable with the company for any legal acts performed during their management which bind the company before the declarations have been filed with the trade register.
A company that is part of a group of companies does not have to file its annual accounts with the trade register if the parent company files a liability statement (a so-called 403 statement). In that case, only the parent company has to file its annual accounts. A condition is that the EU Regulation on the application of international accounting standards applies to the financial data of the parent company. As a result of Brexit, Dutch companies that first did not file their annual accounts because their parent company in the UK had filed a 403 declaration, now have to file their own annual accounts. If they fail to do so (or fail to do so in time), this may have consequences for the liability of the company's directors.
We recommend that you take the following actions: