Dutch company law sets two different rules on the gender balance at the top of companies. Listed companies must have a supervisory board with at least one third women and at least one third men, and an appointment that does not contribute to that balance is void; large companies in general must set their own targets, draw up a plan and report on progress.
The quota is a hard rule with a legal sanction and applies only to listed companies. The target regime applies to a much wider group of NVs and BVs and is enforced through transparency rather than nullity. Both rules have applied since 1 January 2022.
What does the quota for listed companies require?
Under Article 2:142b of the Dutch Civil Code (BW), the supervisory board (raad van commissarissen) of a listed NV must consist of at least one third men and at least one third women. In a one-tier board, the rule applies to the non-executive directors.
A supervisory board of three people therefore needs at least one man and one woman. With nine members, at least three must be women and at least three men.
What happens if an appointment does not meet the quota?
The appointment is void and the seat stays vacant. The nullity does not affect decisions the board took with the person concerned, so resolutions adopted in the meantime remain valid.
Two exceptions apply under Article 2:142b BW. A reappointment within eight years after the year of the first appointment is allowed even if it does not improve the balance, and in exceptional circumstances an appointment may be made for a maximum of two years.
An example to illustrate: a listed NV with a board of two women and one man replaces one of the women with a man. The board would then have three men and no woman, so that appointment is void and the seat remains open until a compliant candidate is appointed.
Which companies must set targets?
Large NVs and BVs must set appropriate and ambitious targets for the management board, the supervisory board and senior management (subtop). This follows from Article 2:166 BW for the NV and Article 2:276 BW for the BV.
The company must also draw up a plan to reach those targets. It reports on the targets, the plan and the progress in its management report and to the Social and Economic Council (SER). There is no sanction of nullity here: the pressure comes from public reporting.
What is the status of the modernisation of NV law?
The modernisation of NV law is still a policy project, not law. A consultation draft from 2020 proposed easing several NV rules, and in a letter of 27 June 2022 to the House of Representatives the Minister for Legal Protection announced an expert group to prepare a broader revision.
The ideas discussed include: optional authorised share capital in the articles of association, as already applies to the BV since 2012; shares with a specific designation carrying special rights; clearer rules on voting rights for pledgees and usufructuaries; decision-making outside a meeting; general meetings held outside the Netherlands; and binding the company itself for incorporation costs.
Until a bill is enacted, current NV law applies in full. That includes the minimum issued and paid-up capital of €45,000 for an NV.
企業として確認すべき事項は何ですか？
- Is your company listed, so that the one-third quota applies to the supervisory board or non-executive directors?
- Does the next appointment keep at least one third men and one third women on the board?
- Does a planned reappointment fall within eight years after the year of the first appointment?
- Does your company qualify as large, so that targets for the board, supervisory board and senior management are required?
- Have you set a plan and reported progress in the management report and to the SER?
What can we do for you with board diversity and NV law?
現場の声を力強いメッセージへ。 顧問弁護士 advise NVs, BVs and their supervisory boards on governance rules.
- We check whether the quota or the target regime applies to your company.
- We review a proposed appointment or reappointment against Article 2:142b BW.
- We draft the targets and the plan and review the report for the SER and the management report.
- We review your articles of association and advise on the choice between an NV and a BV.
製品概要
- Listed companies must have at least one third women and one third men on the supervisory board; a non-compliant appointment is void.
- Reappointments within eight years and temporary appointments in exceptional circumstances are exempt.
- Large NVs and BVs must set targets, draw up a plan and report to the SER.
- The modernisation of NV law has not been enacted; the €45,000 minimum capital still applies.
よくある質問
この割り当ては私の会社にも適用されますか？
The one-third quota applies only to the supervisory board, or the non-executive directors, of listed companies. If your company is not listed but qualifies as a large NV or BV, the target regime under Article 2:166 or 2:276 BW applies instead.
Are decisions void if an appointment was void?
No. The nullity of an appointment does not affect the validity of decisions taken by the board with the person concerned.
Is the modernisation of NV law already in force?
No. It was put out for consultation in 2020 and an expert group was announced in June 2022, but no bill has been enacted. Current NV law, including the €45,000 minimum capital, continues to apply.
