Bill amending supervision of legal entities

In May 2009, a Bill was submitted to parliament abolishing preventive supervision and improving and extending the monitoring of legal entities.9 The Bill proposes that the preventive supervision of legal entities by the Ministry of Justice be abolished. This means that a “statement of no objection” will no longer be required for the incorporation of an NV or BV, the conversion of a legal entity into an NV or BV, the amendment of articles of association or a legal merger or division of an NV or BV. Preventive supervision will be replaced by a system of continuous monitoring of legal entities aimed at preventing and combating misuse of legal entities and facilitating the detection and prosecution of criminal acts which have been or may be committed through legal entities.

The system of continuous monitoring will apply to:

  • legal entities with their registered office in theNetherlands (NV, BV, foundation, association with full legal capacity, cooperative, mutual insurance association, European NV, European cooperative company, European economic interest grouping)
  • undertakings held by a foreign legal entity having its principal office or branch offices in the Netherlands.  

A public company obtaining legal personality after the legislative proposals on partnerships take effect will not be subject to monitoring (the joint and several liability of the partners in the company will continue to exist).

Draft Financial Markets Amendment Act 2010

On 26 August 2009 a Bill was submitted to parliament amending the Financial Markets Supervision Act (FMSA) and other legislation.10 A number of amendments included in the Bill relate to problem areas flagged by supervisory authorities and market parties. The main amendments of the FMSA are:

  • development and expansion of the mandatory exemption notice (the “wild west sign”). Parties offering financial products that are not subject to supervision have to state in information material that there is no supervision of the products. This obligation is extended to some offers of securities, for example concerning investments of at least € 50,000 or offers to fewer than a hundred persons.
  • introduction of a voluntary supervisory regime for investment firms. If investment firms only offer their participation rights to qualified investors, a licence is not required. Some foreign institutional investors may only be allowed to invest in investment firms that are under supervision. The new regime will make it possible for investment firms to be supervised voluntarily, which will make them open to these foreign institutional investors.