Omzetting als rechtsvormwijziging (IVOR nr. 70) 2010/9.6:9.6 Defects in relation to change of legal form (Chapter 6)

Omzetting als rechtsvormwijziging (IVOR nr. 70) 2010/9.6

9.6 Defects in relation to change of legal form (Chapter 6)

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

Legislation includes several procedures for the handling of defects: Book 2 Dutch Civil Code and elsewhere, for example Book 3 Dutch Civil Code. In my opinion, the point of departure is retroactive effect if and to the extent interests are not prejudiced and the consequences of a different opinion are impracticable or barely practicable.

The main rule is that a defect in the procedure of change of legal form leads to an invalid change of legal form (nietigheid). Under Dutch law several documents need to be attached to the notarial deed of change of legal form. If not, the result is nullity. These defects include:

1.

absence of authorization by the court in the event of change of legal form from or into a foundation or from a capital company into an association;

2.

ministerial declaration of no-objection is absent;

3.

a notarial deed is absent or there is no authentic deed;

4.

an auditor's statement is absent or the auditor's statement does not meet the requirements under Dutch law;

5.

the notice period for members of an association has not been observed;

6.

not every member has become shareholder of a capital company and the member did not terminate his membership;

7.

absence of written permission of members whose shares are not paid up by the reserves of the legal entity; or

8.

capital reduction procedure has not been observed or has not been properly observed.

These defects may all be rectified on the basis of section 3:58 Dutch Civil Code.1 Sometimes the law includes a specific provision such as for decision-making. Rectification is also primarily based on Book 2 Dutch Civil Code.

Ratification, legally, has retroactive effect. The same applies to (legal) acts based on ratified acts. This principle is circumscribed by the interest to be protected, such as public order, legal certainty or third-party rights or interests. Third-party rights need to be protected.

A notarial deed may also reflect such rectification of a defect in the process of the change of legal form.

Deze functie is alleen te gebruiken als je bent ingelogd.