Groepsregime, jaarrekening en 403-aansprakelijkheid
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Groepsregime, jaarrekening en 403-aansprakelijkheid (IVOR nr. 116) 2019/Summary:Summary
Groepsregime, jaarrekening en 403-aansprakelijkheid (IVOR nr. 116) 2019/Summary
Summary
Documentgegevens:
mr. drs. E.C.A. Nass, datum 01-08-2019
- Datum
01-08-2019
- Auteur
mr. drs. E.C.A. Nass
- JCDI
JCDI:ADS85705:1
- Vakgebied(en)
Ondernemingsrecht / Jaarrekeningenrecht
Deze functie is alleen te gebruiken als je bent ingelogd.
Title: Group regime, annual financial statements and 403-liability
Under certain conditions, our legislation on annual financial statements permits a legal person to derogate in its financial statements from the provisions concerning the content of the annual financial statements. If the conditions are met, there is also exemption from the obligation to audit and to file the annual financial statements at the trade register. This possibility is based on the competency of the Member States in section 37 of the European Annual Financial Statements Directive1 to include such an exemption for subsidiaries into national law. The text is as follows:
Notwithstanding the provisions of Directives 2009/101/EC and 2012/30/EU, a Member State shall not be required to apply the provisions of this Directive concerning the content, auditing and publication of the annual financial statements and the management report to undertakings governed by their national laws which are subsidiary undertakings, where the following conditions are fulfilled:
the parent undertaking is subject to the laws of a Member State;
all shareholders or members of the subsidiary undertaking have, in respect of each financial year in which the exemption is applied, declared their agreement to the exemption from such obligation;
the parent undertaking has declared that it guarantees the commitments entered into by the subsidiary undertaking;
the declarations referred to in points (2) and (3) of this Article are published by the subsidiary undertaking as laid down by the laws of the Member State in accordance with Chapter 2 of Directive 2009/101/EC;
the subsidiary undertaking is included in the consolidated financial statements drawn up by the parent undertaking in accordance with this Directive;
the exemption is disclosed in the notes to the consolidated financial statements drawn up by the parent undertaking; and
the consolidated financial statements referred to in point (5) of this Article, the consolidated management report, and the audit report are published for the subsidiary undertaking as laid down by the laws of the Member State in accordance with Chapter 2 of Directive 2009/101/EC.
In addition to the Netherlands only three other Member States have included the exemption in their legislation. Luxembourg has included the exemption of the Directive almost to the letter. The text reads as follows (unofficial translation):2
Subsidiary undertakings do not apply the provisions of this chapter or chapter IV concerning the content, auditing and publication of its annual financial statements and the management report where the following conditions are fulfilled:
the parent undertaking is subject to the laws of a Member State;
all shareholders or members of the subsidiary undertaking have, in respect of each financial year in which the exemption is applied, declared their agreement to the exemption indicated above from such obligation;
the parent undertaking has declared that it guarantees the commitments entered into by the subsidiary undertaking;
the declarations referred to under b. and c. are filed by the subsidiary undertaking as laid down in section 11bis subsection 3 of the amended act of 10 August 1915 concerning commercial companies and provisions of chapter Vbis of Part 1 of this act;
the subsidiary undertaking is included in the consolidated financial statements drawn up by the parent undertaking in accordance with the Council Directive 83/349/EEC of 13 June 1983 based on Article 54 (3) (g) of the Treaty and concerning the consolidated accounts (so called « seventh directive ») or in accordance with the international accounting standards adopted as part of the procedure provided for in section 6, subsection 2 of Regulation (EC) No. 1606/2002 from the Parliament and of the Council of 19 July 2002 on the application of international accounting standards;
the exemption indicated above is disclosed in the notes to the consolidated financial statements drawn up by the parent undertaking; and
the consolidated financial statements referred to under e, the consolidated management report, and the audit report are filed for the subsidiary undertaking as laid down in section 11bis subsection 3 of the amended act of 10 August 1915 concerning commercial companies and provisions of chapter Vbis of Part 1 of this act.
Ireland has taken over the exemption for subsidiary undertakings that are a private company or a designed unlimited company, and only for filing the annual financial statements. The text reads as follows:3
Where a company is a subsidiary undertaking of a holding undertaking that is established under the laws of an EEA state, the company shall, as respects any particular financial year of the company, stand exempted from the provisions of sections 347 and 348, but only if, the following conditions are fulfilled:
every person who is a shareholder of the company on the date of the holding of the next annual general meeting of the company after the end of that financial year or on the next annual return date of the company after the end of that financial year, whichever is the earlier, shall declare his consent to the exemption,
there is in force in respect of the whole of that financial year an irrevocable guarantee by the holding undertaking of all commitments entered into by the company, including amounts shown as liabilities in the statutory financial statements of the company in respect of that financial year;
the company has notified in writing every person referred to in paragraph (a) of the guarantee;
the statutory financial statements of the company for that financial year are consolidated in the consolidated accounts prepared by the holding undertaking;
the exemption of the company under this section is disclosed in a note to those consolidated accounts,
a notice stating that the company has availed of the exemption under this section in respect of that financial year together with –
a copy of the guarantee and notification referred to in paragraphs (b) and (c), and
a declaration in writing that paragraph (a) has been complied with in relation to the exemption, is annexed to the annual return for the financial year made by the company to the Registrar,
the consolidated accounts of the holding undertaking are drawn up in accordance with the requirements of the Accounting Directive4 or in accordance with international financial reporting standards, and are audited in accordance with Article 34 of that Directive; and
a copy of the consolidated accounts of the holding undertaking together with the report of the auditors on them are annexed to the annual return of the company referred to in paragraph (f).
Where any document referred to in subsection (1) that has been annexed to the annual return is in a language other than the English language or the Irish language, there shall be annexed to each such document a translation of it in the English language or the Irish language certified in the prescribed manner to be a correct translation.
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Germany has included the exemption for subsidiaries that are companies limited by shares (« Kapitalgesellschaften »). The text reads as follows (unofficial translation):5
(sentence 1) A company limited by shares which as a subsidiary undertaking is consolidated in the consolidated financial statements of a parent undertaking which is subject to the laws of a Member State of the European Union or another State Party to the Agreement on the European Economic Area need not to apply the provisions of this subsection and of the third and fourth subsections of this section where all the following conditions are fulfilled:
all shareholders of the subsidiary undertaking have approved the exemption for the respective financial year;
the parent undertaking has declared its willingness to guarantee the commitments entered into by the subsidiary undertaking up to and including the balance sheet date of the following financial year;
the consolidated financial statements and the consolidated management report of the parent undertaking have been prepared and audited in accordance with the legislation of the Member State to which the parent undertaking is subject and in accordance with the following directives:
Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council, and repealing Council Directives 78/ 660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19), most recently amended by Directive 2014/102/EU (OJ L 334, 21.11.2014, p. 86);
Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (OJ L 157, 9.6.2006, p. 87), amending Directive 2013/34/EU (OJ L 182, 29.6.2013, p. 19).
the exemption of the subsidiary undertaking is disclosed in the notes to the consolidated financial statements of the parent undertaking and
for the subsidiary undertaking have been filed in accordance with § 325 subsection 1 to 1b:
the decision referred to under number 1,
the declaration referred to under number 2,
the consolidated financial statements,
the consolidated management report and
the audit report on the consolidated financial statements and consolidated management report of the parent undertaking referred to under number 3.
(sentence 2) If the parent undertaking has already filed some or all the documents referred to in sentence 1 under number 5 the subsidiary undertaking does not need to file the documents in question if the can be found in the Federal Gazette (‘Bundesanzeiger’) under the subsidiary undertaking; § 326 subsection 2 shall not apply to this filing.
(sentence 3) Sentence 2 shall only apply if the parent undertaking has filed the relevant document in German or in English or if the subsidiary undertaking additionally files a certified translation of this document in German in accordance with § 325 subsection 1 to 1b.
(sentence 4) Sentence 3 does not apply if a company limited by shares is the subsidiary undertaking of a parent undertaking that has prepared consolidated financial statements in accordance with the provisions of the Publishing Act and if the option of §13 subsection 3, sentence 1 of the Publikationsgesetz has been used in these consolidated financial statements; § 314 subsection 3 remains unaffected.
The conditions to be fulfilled include among others the parent undertaking consolidating the financial information of the subsidiary in its consolidated financial statements and having to act as guarantor for the commitments (including liabilities) entered into by the subsidiary.
The Dutch legislator has included the conditions for the exemption in its own way into section 2:403 of the Dutch Civil Code. Because of this the Dutch exemption is less similar to the unitary exemption and the exemption in the other three Member States. The text reads as follows (unofficial translation):
A legal person which forms part of a group does not need to apply the provisions of this Part concerning the content of the annual financial statements in its annual financial statements where the following conditions are fulfilled:
the balance sheet shows at least the aggregate of the fixed assets, the aggregate of the current assets and the amount of the equity, of the provisions and of the liabilities and the profit and loss account shows at least the profit or loss on ordinary activities after taxation and the balance of other income and expenses after taxation;
after the beginning of the financial year and before the adoption of the annual financial statements, all members or shareholders have declared in writing their consent with derogating from the provisions;
the financial information on the legal person has been consolidated by another company in consolidated financial statements to which, pursuant to the applicable law, apply the Regulation (EC) No. 1606/2002 of the European Parliament and the Council on the application of international standards for annual accounts, Directive 2013/34/EU of the European Parliament and the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/93/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/329/EEC (OJ EU 2013 L 182) or one of the two Council Directives on the annual accounts and consolidated annual accounts of banks and other financial institutions respectively of insurance undertakings;
the consolidated financial statements if neither made in nor translated into Dutch, shall have been made in or translated into French, German or English;
the audit report and the management report have been made in or translated into the same language as the consolidated financial statements;
the company referred to in paragraph c has declared in writing that it accepts joint and several liability for the debts arising from the legal acts of the legal person; and
the declarations referred to in paragraphs b and f have been filed at the trade register and the documents or translations mentioned in paragraphs d and e within every six months after the balance sheet date or within one month after a permitted later filing.
If in the group or part of the group, the information of which has been included in the consolidated financial statements, the company referred to in paragraph f of subsection 1 and another company on the same level without subordination, subsection 1 shall apply only if such other company has also assumed a declaration of joint and several liability, in which case paragraph g of subsection 1 and section 404 shall apply accordingly.
To a legal person to which subsection 1 applies, sections 391 – 394 shall not apply.
To legal persons referred to in subsection 7 of section 398, this section shall not apply.
The difference with the unitary exemption appears, among other things from the incomplete inclusion of the prescribed conditions, from the substitution of the parent undertaking/subsidiary-relation by a group relation, from provisions that do not comply fully with the Directive regarding the consolidation requirements, from the guarantee for commitments entered into by the subsidiary to be substituted by a declaration of joint and several liability for debts (=commitments including liabilities) arising from legal acts entered into by the legal person belonging to a group and by creating an option to terminate the liability. This liability goes beyond liability for redress because such a statement also implies that the parent undertaking is jointly and severally liable for the performance of what the legal person is obliged to do. Such a statement relates to the debts of this legal person regardless of who the rightful claimants thereto are. The joint and several liability takes effect as soon as a claim arises from a legal act of the legal person. From that moment on, a person entitled to the claim (subject to the agreed payment conditions with the legal person) can turn to the legal person and/or the parent undertaking for performance; the choice is up to him. It is argued that as long as the person entitled to the claim has not turned to the parent undertaking for performance, there is no claim against the parent undertaking. The legal consequences of the difference between these approaches are limited.
In my research I have investigated the deficiencies in the current Dutch exemption and how the provisions of this exemption could be more in line with the exemption in the European Annual Financial Statements Directive and more comparable with those in the three other Member States with an exemption. For that purpose, I have examined in Chapters 2 – 6 the relevant conditions b – g mentioned in section 403, subsection 1 separately, without regard to the fulfillment of the other conditions. In Chapter 7 I have investigated in which financial year the subsidiary undertaking can use the exemption and furthermore, from which the exemption can no longer be used in case one or more conditions is/are no longer fulfilled. In Chapter 8 I have investigated the consequences of the use of the exemption in case of merger and acquisition. In Chapter 9 I have examined the civil law aspects of the declaration of joint and several liability in the light of legislation, case law and doctrine. In that context, I have investigated the meaning of the liability of the parent undertaking for valid use of the exemption, what rights a creditor of the exempt legal person can derive from liability and how the position of creditors, employees and shareholders of the parent undertaking can be improved. I have closed each chapter with a summary conclusion and I have repeated these conclusions in Chapter 10, paragraph 10.1. I have included my research findings in paragraph 10.2. The results of my research are expressed into proposals for legislative changes of among others section 2:403 of the Dutch Civil Code that I have presented in Chapter 10, paragraph 10.3. I have formulated the following proposal for amendment of section 2:403 of the Dutch Civil Code:
1. A legal person, other than a legal person as referred to in section 398, subsection 7, which is a subsidiary undertaking, does not need to apply the provisions of this Part concerning the contents of the annual financial statements and is exempt from sections 391 – 394, but only if, the following conditions are fulfilled:
the company of which the legal person is a subsidiary undertaking is subject to the laws of a Member State;
the financial information on the legal person has been consolidated in the consolidated financial statements of the company referred to under a, to which, pursuant to the applicable law, apply Directive 2013/34/EU of the European Parliament and the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings and repealing Council Directives 78/660/EEC and 83/349/EEC or the Regulation (EC) No. 1606/2002 of the European Parliament and the Council of the application of international standards for annual accounts, Council Directive 91/674/EEG for insurance companies or Council Directive 86/335/EEG for banks and other financial institutions;
the consolidated management report of the company referred to under a or the management report in case this is combined with the consolidated management report, is prepared in accordance with this Part, Directive 2013/34/EU and Council Directive 91/674/EEG for insurance companies, respectively Council Directive 86/ 335/EEG for banks and other financial institutions;
in the notes to the consolidated financial statements is stated for which legal persons and other companies this exemption or comparable exemption under the law of another Member State is used;
the consolidated financial statements and the consolidated management report or the management report in case this is combined with the consolidated management report are audited in accordance with this Part or Directive 2013/34/EU;
the company referred to under a has declared that it is jointly and severally liable for all legally enforceable non-settled commitments arising from legal acts of the legal person entered into until the filing in accordance with section 394 of the in accordance with this Part prepared and, if applicable, audited next annual financial statements;
immediately after the company referred to under a has declared joint and several liability it gives notices thereof to the trade register and on its website;
members, partners, shareholders, holders of depository receipts or those otherwise entitled to attend the general meeting of shareholders at the time of the annual meeting wherein the adoption of the annual financial statements is resolved, each have declared in writing to the managing board of the legal person to consent to the exemption or have unanimously decided for that, or in case that the annual financial statements have not been adopted have declared so at the time the annual financial statements should have been filed in accordance with section 394. In case the legal person is a foundation, those entitled to decide on the use of the exemption are those who at the time of the adoption of the annual financial statements are part of the body authorized to decide upon such adoption, or in case that no adoption would take place, at the time that otherwise the annual financial statements should have been filed in accordance with section 394;
if neither made nor translated into Dutch, the declarations referred to under f and h, the consolidated financial statements referred to under b, into the same language as the consolidated financial statements, the report referred to under c and into the same language as the consolidated financial statements, the audit report on the consolidated financial statements and management report, shall have been made in or translated into French, German or English;
the legal person discloses the use of this section on its website and files at the trade register in accordance with section 394, the documents listed below, at the latest twelve months after the balance date of the last financial year
a notice of its managing board stating that all persons entitled to consent have declared in writing to consent to the exemption respectively have decided unanimously for that;
a statement of the date of adoption of the annual financial statements of the legal person or in case that the annual financial statements have not been adopted, a statement of that fact;
an authentic copy of the declaration referred to under f;
the adopted annual financial statements of the company referred to under a and in case that its consolidated financial statements are not part of the annual financial statements, these consolidated financial statements including the date of adoption thereof and if applicable the date of adoption of the consolidated financial statements, or in case that the annual financial statements or the consolidated financial statements have not been adopted, a statement of that fact;
the management report of the company referred to under a and in case that its consolidated management report is not part of the management report, this consolidated management report;
the audit report on the annual financial statements with accompanying management report of the company referred to under a and the audit report on the consolidated financial statements and accompanying management report of the company referred to under a in case that the consolidated financial statements are not part of the annual financial statements;
a statement of the auditor who has audited referred to under e, showing that all the conditions referred to under a – i have been fulfilled. If the notice of the managing board with respect to the consent, the authentic copy of the declaration referred to under f and the statement of the auditor with respect to fulfilment of the conditions a – h are in another language than the Dutch language, there shall be annexed to each such document a translation of it in the Dutch language certified to be a correct translation.
If a legal person for which a declaration of joint and several liability as referred to in section 1, paragraph f is assumed, becomes a subsidiary undertaking of another company and that other company applies section 403 on this legal person, the liability of the company that has given the declaration of joint and several liability, shall continue for all commitments arising from legal acts entered into by this legal person until twenty-four months after the balance date of the last financial year in which the exemption is applied.
In subsection 1, paragraph f of this proposal, I have emphasized the ‘safeguard’ nature (waarborgkarakter) of the joint and several liability as subsidiary in the sense that creditors must first turn to the legal person for performance. In subsection 2 of the proposed section 403, I have taken into account continued liability in respect of commitments which arise from legal acts entered into by the legal person during twenty-four months after the balance date of the last financial year in which the exemption is used, in the case that the legal person becomes a subsidiary undertaking of another company provided that it has declared in writing joint and several liability for the commitments arising from legal acts entered into by this legal person. In my other proposals presented in Chapter 10, paragraph 10.3 I have included that shareholders and employees of the parent undertaking have to be consulted before liability can be assumed.