8.2.2.3 Unitary board structure

In the case of a unitary board structure, a distinction must be made between companies that fall within the ambit of the structure regime and companies that do not. If a company does not fall within the ambit of the structure regime the NEDs are elected in the same way as the executive directors in a situation with a dual board structure. Section 2: 132 paragraph 1 states that a director is initially appointed by the deed of incorporation and thereafter by the general meeting. The general meeting determines whether a director is appointed either as executive director or as NED. Paragraph 2 of section 2: 132 DCC provides that the articles of association may restrict the circle of persons eligible for appointment by imposing requirements, which the directors must meet. However, the general meeting may waive these restrictions by adopting a resolution with a two-thirds majority, which should represent more than half of the issued capital. Section 2: 133 DCC provides for the possibility to have a binding nomination for the appointment by the general meeting through the inclusion of such a provision in the articles of association. However, the general meeting can resolve that such a list shall not be binding by adopting a resolution passed with a two-thirds majority, which represents more than half of the issued capital (paragraph 2).

For companies with a unitary board structure that do fall within the ambit of the structure regime, the situation is comparable to companies with a dual board structure under the structure regime. Section 2: 164a DCC states that the relevant paragraphs of section 2: 158 (paragraphs 2 through 12), and sections 159 and 160 also apply if a unitary board structure is in place. This entails that all rights and regulations described above for the supervisory board in a dual board structure apply to the NEDs in a unitary board structure.