Under the old company law, the board of directors in the nv always had to consist of at least 2 or 3 directors, depending on the number of shareholders. This requirement was not feasible for every company. With the introduction of the Companies and Associations Code, the legislator ensured that in an NV one could now choose between three management models: (1) the one-tier board, (2) the sole director or (3) the dual board. For many NV's, it is therefore useful to give some thought to the new governance models.
1. The monistic board (= board of directors).
With a one-tier board, the company is managed by a board of directors, which corresponds to the board of directors under the old Companies Act.
Depending on the number of shareholders, the board of directors is composed as follows:
|Number of shareholders
|Number of Directors
|At least 2
|At least 2
|At least 3
In principle, the board of directors must thus consist of 3 directors, unless the company has fewer than 3 shareholders. If the NV thus has only 1 (which is possible since the introduction of the WVV) or 2 shareholders, the board of directors may consist of 2 directors.
Directors are appointed for a maximum term of 6 years.
2. The sole director
The new company law also provided for the prohibition of "dual mandates"The articles of association can now stipulate that one director can be appointed in accordance with the articles of association. The articles of association may henceforth provide that the SA is managed by a single director, whether or not appointed under the articles of association. This could be a solution to the problem of double mandates.
If, in the long run, one wishes to appoint different directors, one must however bear in mind that one will have to opt for a different model of management and that the articles of association will have to be amended.
Some notaries accept, however, that in the event of incorporation of the company or amendment of the articles of association, it is possible to provide for a combination of the two systems: sole director or collegiate management body, by inserting a specific clause in the articles of association.
In this way, the company can be managed either by one director, or by a board of directors (depending on the number of appointments).
Note: Not all notaries accept this clause, since based on a strict interpretation of the law, the articles of association must choose between the different governance models.
3. Dual governance
If dual management is opted for, the company shall be managed by:
- A supervisory board; and
- A board of directors.
The supervisory board and executive council are both collegial governing bodies, each of which has at least 3 members. Members of the supervisory board cannot be members of the management council.
The members of the Supervisory Board are appointed by the General Assembly, where as the members of the Executive Council are appointed by the Supervisory Board.
The Board of Supervisors is authorized to:
- The general policy and strategy of the company;
- All actions reserved for the board of directors;
- Supervision of the Executive Council.
In principle, the Executive Council has all powers that are not reserved for the Supervisory Board (being operational policy).
Unlike the former executive committee (where there was a lot of freedom in terms of composition and powers), we can conclude that dual governance is much more strictly regulated.