11.5.2 Differences between the three legal forms

There are important differences between the legal forms of church societies on the one hand and associations and foundations on the other, both in terms of legal personality and the registration of legal forms.

Church societies, their independent components and bodies in which church societies are united are governed by their own statutes. However, the operation of the statute has its limits in the law, i.e. the fundamental mandatory rules of Dutch law. The law contains no criteria for the legal form of a church society. In concrete cases the judge decides whether there is a church society. The requirements of case law and the characteristics developed in the literature play a crucial role in this.

The legal forms association and foundation, on the other hand, have their own legal regimes with both mandatory and regulating regulations on the organisation, management and representation. The legislator has granted special powers to the court for the organisation of the foundation. No such legal regime exists for church societies.

There are essential differences between foundations and associations. Because of its democratic nature, the association fits rsl organisations that are open to the influence of members and is less suited to more hierarchical rsl organisations. On the other hand, the freedom of organisation of the foundation is greater than that of the association, but less than that of the church society.

Although church societies must be registered in the Commercial Register, the registration requirement is limited. For example, only contact details are registered and the names of the directors may not be recorded due to privacy laws. On the other hand, associations and foundations – regardless of whether they have a religious, spiritual or ideological basis – have a full registration obligation. In view of the reasoning behind the exception for registration of names of board members of church societies (traceability to a special privacy-sensitive information), the exception should, in my opinion, also be open to names of board members of associations and foundations on rsl basis, as well as other anbis.

To determine the Ultimate Beneficial Owners (UBOs) of a church society, other criteria apply than for the UBOs of an association and a foundation. In addition, only a foundation has the obligation to keep track of distributions of 25 per cent or less in an internal register. For the UBO registration obligation, the law makes no difference between church societies and other anbis.

The Bill on Transparency of Social Organisations (wetsvoorstel Transparantie maatschappelijke organisaties) only creates an obligation for foundations to deposit a balance sheet and a statement of income and expenditure with the Trade Register. The Act on Management and Supervision of Legal Persons (Wet bestuur en toezicht rechtspersonen) creates additional mandatory provisions for associations and foundations concerning management and supervision as of 1 July 2021 but does not apply to church societies.