The memorandum in respect of the report and the memorandum to amend the bill received on 17 February 2009 address the following points6:
- The introduction of a one-tier board model can only take place “under the articles of association” (and not “pursuant to the articles of association”) with the notification that tasks will be divided between executive and non-executive directors. The shareholders should be consulted when transferring to a one-tier model;
- In comparison with the role of the supervisory directors in the two-tier board model, the role of the non-executive directors includes more than supervision and advice. These directors have directors’ liability and are involved in the general policy of the company and the decision making of the board. They may also be appointed chairman of the board.
- A new provision will be introduced regarding conflicts of interest. Section 2:146/256 of the Dutch Civil Code will lapse. In connection with this two transitional regulations are proposed: (i) transactions performed under the current law by a director with a conflict of interest may also be ratified by the general meeting (as is also currently possible by law); (ii) unless stated otherwise by law, no appeal may be made to a provision of the articles of association that states that the company may be represented by another person than the management board or a director in the event of a conflict of interest with a director.