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    Simplified adoption of annual accounts: be aware of filing requirements

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  • As posted earlier on this blog, the Flex BV Act provides in greater flexibility in the manner of adopting the annual accounts in situations where all shares in the BV are being held by the managing directors of the BV. In such case, the annual accounts are adopted if all managing directors signed the annual accounts. A separate resolution of the general meeting of shareholders is not required.

    In order to benefit from this simplified manner of adopting the annual accounts, an amendment of the articles of association is, in principle, not required. This would only be different if the articles of association explicitly exclude this manner of adopting the annual accounts. The articles of association of BV's that were incorporated prior to 1 October 2012 (the date on which the Flex BV Act entered into force) are not likely to include such explicit exclusion.

    In the aforesaid situations, one should bear in mind that once the annual accounts have been signed by all managing directors (which they were used to do prior to the annual general meeting of shareholders) and, thus, have been adopted, the annual accounts must be filed with the Trade Register of the Chamber of Commerce within 8 calendar days. If the adopted annual accounts are not timely filed, this could potentially result in a liability of the managing board of the BV in the event the BV goes bankrupt. The burden of proof that the non-timely filing should be considered an immaterial omission or was not an important cause of the bankruptcy, and should therefore not result in a liability of the managing board, rests upon the managing board.

    The side effect of having an advanced filing obligation may not at all times be desired. In such case, it is recommendable to explicitly exclude in the articles of association that the annual accounts cannot be adopted in this simplified manner.

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