In Re (#12 December 2013)

Transfer of a Company’s Corporate Seat to the Netherlands

Marlies Kaija Majoppe Enderink

This 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 Vennootschap (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.

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