5.3 Structural Change in the Netherlands

In the Netherlands, provisions facilitating the conversion, statutory merger and statutory demerger of legal persons are contained in Book 2 of the Civil Code. No statutory provisions exist with respect to partnerships, but there is no doubt a VOF can be converted into a CV, and vice versa. In the author’s view, it is desirable to allow more flexibility in the context of partnerships and to cross the bridge to the legal persons of Book 2 of the Civil Code (including NV and BV companies). He recommends the addition of a ‘Book 2A’ to the Dutch Civil Code, to be titled ‘Structural change for legal persons and other legal subjects’. The provisions for structural change currently included in Book 2 can be transferred to that new Book 2A and serve as a starting point for the new provisions concerning partnerships, which can equally be included therein. Also the transfer of ZBA assets and liabilities under a universal title of succession (see above) can be included in the new Book 2A.

The author also proposes that for purposes of conversion, merger and demerger, forms of partnership with legal capacity (VOF, CV and M-BA) be treated like NV and BV companies. Partner liability requires special attention. The main VOF rule, that all partners are fully liable for all VOF debts, can also be applied to the debts acquired by a VOF in a merger or demerger. Another starting point for regulation can be that the merger or demerger of a VOF will not indemnify its partners against liability for debts so transferred. Where a merger or demerger involves the transfer of debts by a VOF, and a partner of that VOF does not become a fully liable partner of the acquiring entity, the rules applicable to the surviving liability of a retiring partner can be applied. The above rules for VOF partners can be applied to the general partners of a CV as well.

Furthermore, the author proposes a statutory provision allowing a partnership with legal capacity to survive after the penultimate partner has retired, as a non- dissolved one person partnership (or: partnership-with-a-vacancy) for a year at least. Like in France. This will allow time for recruiting a new second partner or for conversion or merger of the partnership. In case a one-person partnership is dissolved, a transfer of its assets and liabilities to the last partner under a universal title of succession can be facilitated. The idea of the partnership-with-a- vacancy can also be applied to the retirement of the sole general partner of a CV.