8.2.2.1 No structure regime

If a company does not fall within the ambit of the structure regime, the general meeting of shareholders appoints the supervisory directors unless they are already appointed by the deed of incorporation, according to section 2: 142 paragraph 1 DCC. This first paragraph states that the circle of persons eligible for appointment may be restricted by imposing requirements in the articles of association that must be met. 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. An obligatory restriction is given in section 2: 140 paragraph 1 DCC and provides that a supervisory board member must be a natural person. Unlike members of the management board, the members of the supervisory board cannot be legal persons.

Paragraph 2 of section 2: 142 DCC states that section 2: 133 DCC, paragraphs 1 and 2, apply if the appointment is made by the general meeting. This 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 nomination 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). When candidates are nominated for appointment, the age, profession, the nominal amount of shares in the capital of the company, relevant present and past functions, and current supervisory board positions must be disclosed, according to section 2: 142 paragraph 3 DCC. The nomination must be substantiated and when it concerns a reappointment the manner in which he has fulfilled his duties must be taken into account (Maeijer et al. 2009: 506).

Section 2: 143 DCC offers the possibility to include in the articles of association a provision that at most one-third of the supervisory board is appointed otherwise than by the general meeting. Priority shareholders, the supervisory board, supervisory directors, a certain group of shareholders, the works council, a bank, bondholders, the government or other public bodies are examples of other parties that can appoint supervisory directors. Members of the management board cannot appoint supervisory directors, because they should not select their own supervisors. Such an appointment makes the supervisory director aware of the trust of the party that has appointed him and might influence his behaviour (Maeijer et al. 2009: 507).