8.2.5.1 Independence criteria in Dutch law

Besides the independence criteria in chapter III.2 of the DCGC, companies can impose requirements that the supervisory board members must meet, according to section 2: 142 paragraph 1 DCC. This section can be used to impose independence requirements for supervisory directors (Maeijer et al. 2009: 509).

Furthermore, section 2: 160 DCC identifies three groups of people who may not hold a position on the supervisory board of companies that fall within the ambit of the structure regime. The first two groups comprise people who are employed by the company or a dependent company, the third group consists of ‘officers and persons employed by an employees’ organisation customarily involved in the establishment of the terms of employment of the persons [in the first two groups]’. Although the section does not explicitly mention the term independence, the legislator has used independence in the explanatory memorandum of section 2: 160 DCC. The explanatory memorandum states: ‘Supervisory directors need to be independent and neutral. They are not allowed to be an employee of the company or a dependent company. They must not have a duty to look after the interests of employees of the company or a dependent company in the capacity of another position, such as officer or employee of an employees’ organisation of which employees of the company or dependent company are members’ (Memorie van Toelichting 1969: 12; Commissie Vennootschapsrecht 1969: 25).

The fact that only the rights of employees are suggested as being a possible impediment for the independence of supervisors is explicable due to the tendency of this law to focus on shareholders’ and employees’ interests, which is apparent from the explanatory memorandum. The explanatory memorandum indicates that the supervisory board should look after the general course of affairs of the company and the enterprise connected therewith. This formulation is chosen in order to avoid the impression that it is the legislator’s intention only to look after shareholders’ rights. By using this formulation the legislator also includes the interests of employees (Memorie van Toelichting 1969: 12-13). Other stakeholders or constituents are not mentioned in the explanatory memorandum. This indicates that shareholders and employees are, at the time of the creation of the law, considered to be the major constituents. Therefore, the fact that employees are the only constituents mentioned in section 2: 160 DCC is explicable. However, in this line of reasoning it would be expected that (a representative of the) shareholders would also be excluded from executing supervisory tasks (Maeijer et al. 2009: 575).