International
Corona SME helpdesk for non-Dutch enterprises
The Corona pandemic has reached the Netherlands and has a huge impact on the economy and affect all enterprises and its workers. For this reason LVH Advocaten has compiled a special Corona helpdesk for SME enterprises.
The Dutch government has imposed an Emergency Package which include many measures as a result of the instructions the Dutch government has issued in order to manage the Corona virus. These instructions has an enormous impact on the economy and the measures contained in the Emergency Page should help all business enterprises, from small to large, to keep their head above water due to corona virus restricting movement and has initiated great financial and fiscal support measures for enterprises during this difficult time. The measures taken by the Dutch government will be addressed item by item as the situation develops. Click here which will take you to the latest development on the measures offered by the Dutch government.
This summary page will be updated as time develops and is specifically aimed at international business enterprises trading in the Netherlands and Dutch business enterprises trading internationally. On a daily basis and discuss any developments relevant to international firms operating in the Netherlands. Consulting this page frequently ensures you staying updated around coronavirus developments in the Netherlands affecting employers and employees.
Legal assistance in the Netherlands during Corona virus outbreak
We would be pleased to discuss with you which measures can help you further and how we can support you in doing so. For questions please contact our office on +31 (0)10 209 2777.
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Relevant information about Corona virus for SME enterprises operating in the Netherlands
The LVH Corona help desk legal team acts primarily for SME business enterprises that are also registered here in the Netherlands or active in the Dutch market. This sector has been hit very hard, as it simply just does not have the financial buffers that larger companies may have or companies that are more established.
Our approach
The LVH Corona help desk legal team is aware of this changing need in the market and please find below our approach and vision in how we can help you best.
- The LVH Corona help desk legal team keeps focus on the commercial goal of the business – and that is to stay alive. This means a different approach to advising clients what their rights are in a healthy business environment. We provide legal advice that your business enterprise needs now, in this crisis situation. The courts in the Netherlands are operating primarily remotely and are limited to addressing only urgent cases. Furthermore, once the courts are fully operational again, there will be a substantial backlog. With this in mind, it may be advisable to explore other options in the event that you are confronted with a breach of contract for example. Communication is key here and the LVH Corona help desk legal team is available to discuss with you which alternative routes are open to you. We think in terms of a win-win situation and not in terms of win-lose situation.
- The LVH Corona help desk legal team can help you to build bridges with the other party and find ways to keep a dialogue going. The key word here again is communication, and this is what the legal team can do for you. Communicate to help you build bridges.
- The LVH Corona help desk legal team is very transparent when it comes to rates. The legal team is used to working with a fixed fee quote and will gladly provide you with one.
- Many business enterprises may not in a strong bargaining position as a result of the Corona Crisis and this may invite other companies to abuse this. The legal team can help you turn this weakness into a strength. Each business enterprise has something, whether it is knowledge, service and/or product that is useful for other business enterprises to have to make them more competitive for example. A company in financial trouble needs to protect itself from these kind of actions and in some cases needs to take legal steps in order to secure these rights. These rights can be secured by registrations or amending certain policies and processes within your company. Examples of this includes registration of your intellectual property rights and changing your payment policies within the company. This protection will put your company in a better bargaining position during the Corona crisis and gives your company the freedom to exercise these rights in the future.
Our people
The LVH Corona help desk legal team is fully up to speed with the emergency package measures that the Dutch government has offered and is updating on a daily basis. These are largely financial and fiscal measures, and there are also legal issues that your company needs to address. If you need advice on legal issues that you are confronted with, please click on this link for further information and contact details of our legal team.
What next?
The situation changes on a daily basis and the legal team takes pride in keeping up with these changes in the same pace in order to help you. We are in business as usual and use all digital means in order to address the changing needs of our clients and relations.
Legal assistance during corona crisis
Would you as employer like to know whether you qualify for this ruling and/or how you can apply for it? Please contact our Corona SME helpdesk for non-Dutch enterprises.
The Dutch government has announced an Emergency Package that contains measures that are developing and changing on a daily basis. These measures are aimed at supporting companies and freelancers in this difficult time. They include measures to maintain employment on the one hand and to ensure companies not going bankrupt, and measures ensuring that self-employed people can maintain an income on the other hand.
As the emergency package of the Dutch government changes so fast, we have prepared an overview of all present measures, which we will update as the world changes. This overview will give you an insight of all the measures contained in the emergency package of the Dutch government as well as the relevant website in order to apply for the measure.
The Dutch fiscal support package for companies during the Corona crisis
The package of fiscal measures in order to support companies and employees during the Corona crisis includes the following elements:
- A reduction in employers’ wage costs to avoid redundancies;
- Temporary income support for the self-employed;
- Relaxation of tax deferrals;
- Increase in the guarantee for business financing;
- Interest rebates for loans contracted with Credits;
- Widening the guarantee for SMEs – Agricultural Credits;
- Extension BMKB scheme;
- Open emergency counter for entrepreneurs in affected sectors.
What can LVH’s lawyers help you with during the Corona crisis?
LVH has a team of specialised lawyers who can advise you on all fiscal support measures imposed by Dutch government. Ultimately, most fiscal measures have an effect and offer support in the somewhat longer term.
Fiscal support Corona-measures that may have an immediate effect
Below, we listed the fiscal support measures that are effective for companies operating in the Netherlands, immediately.
Postponement of payment for companies affected by Corona
In the short term, the measure of requesting deferral of payment of the various taxes in particular has a direct effect. This measure makes it possible for companies affected by Corona to request deferral directly. It frees up resources that can be spent on keeping the company afloat.
Reduction of provisional assessment of income tax
At the beginning of the year, a large number of companies were subject to a provisional assessment of income tax (for IB entrepreneurs) or corporate income tax. This assessment relates to the tax year 2020 and is based on an expected profit for the year 2020. For a large number of the companies operating in the Netherlands that have received such an assessment, it now appears that, as a result of the corona crisis, they will make no or significantly less profit than previously estimated. On this basis, the provisional assessment can be reduced.
If the amount of the provisional assessment has already been paid, the reduction will result in a refund.
Extending the dead-lines for payment of Dutch taxes and reducing the rent on tax payments to 0,01 % due to Corona crisis
The Dutch Tax Authorities have also taken some steps to help business enterprises during the Corona crisis. The following measures are available to business enterprises.
Delay the payment date of your tax returns
This applies to all taxes such as income tax, company tax, turnover tax and payroll tax. The business enterprise can apply directly to the Dutch Tax Authorities for this.
No penalty payment for late payment of taxes due to Corona crisis
The Dutch Tax Authorities will also not charge any penalty payment for late payment of taxes.
Reduced debt collection interest
The usual debt collection interest of 4% that is payable in the event that a business enterprise does not pay its taxes is reduced to 0,01% as from 23 March 2020.
Reduced rent on tax payments due to Corona Pandemic
Tax interest rate of 8% is normally charged by the Dutch Tax Authorities in the event that the tax assessment cannot be made within the set period of time or where incorrect amount has been submitted. This interest rate of 8% is reduced to 0,01%.
Lawyers specialised in Dutch fiscal law
We would be pleased to discuss with you which corona related measures can help you and your company further, and how we can support you in doing so. For questions and/or advice you can contact David Harreman.
1. A reduction in salary in the event of a fall in turnover of the business enterprise
In the Netherlands shareholders of small medium enterprises who have a substantial interest in the enterprise, are under a duty to pay certain payroll taxes on income relating to the work that they do. This tax is due and payable in the event that the turnover reduces substantially or even if the turnover is zero. The tax authority is now giving these shareholders the right to lower their income in line with the reduction of turnover.
2. Freelancers threshold of 1225 working hours a year
In order for a freelancer to qualify for certain income tax relief in the event that they spend at least 1225 hours per year (which is 24 hours a week) on their business. Due to the Corona crisis, many freelancers can no longer meet this requirement and the Dutch Tax Authorities have included a new ruling whereby the freelancer is deemed to have worked 24 hours a week on its business during the period from 1st March 2020 to 31st May 2020. This means that these freelancers will still qualify for the income tax relief during this period even if the freelancer does not meet this requirement.
3. Tax free expenses scheme
Employers are permitted to give an amount to its employees for general expenses which is tax-free. The current percentage is 1.7% and the Dutch Government announced that this amount is to be increased to 3% for the first € 400,000 of the salaries paid by the employer. This is a very generous gesture of the Dutch Government as this will enable employers to reward their employees during these hard times.
4. Compensation of losses incurred in previous financial year
There is a tax rule that enables business enterprises to compensate losses from the previous financial year with the next financial year. As this compensation cannot be claimed until the next financial year, it means from a practical point of view that this this compensation can only be claimed in the tax relief application of 2020 is filed in 2021 at the earliest. Therefore the benefit will only be felt by the business enterprise some years later. The Dutch tax authorities have temporarily changed this ruling so that business enterprises can benefit from this ruling now. It will now be possible for these business enterprises to charge the expected loss for the year 2020 due to the corona crisis to the profit for the year 2019 as a tax “Corona reservation” for corporate income tax purposes, provided that this reservation does not exceed the profits of the business enterprise for 2019.
5. Excessive lending by management of business enterprises
The Dutch Government has stepped in as a result of the trend that many company directors that hold a substantial interest in the business enterprise borrows money from the business enterprise. The Dutch Government has passed an Act on such excessive lending which was to enter into force on 1 January 2022. The implementation of this Act has now been postponed by another year which means that the company directors with a substantial interest in the business enterprise can borrow money from the business enterprise in order to obtain certain tax benefits from such a structure. This means that these company directors are given more time to repay these loans, which loan must exceed € 500,000 in order to qualify for this tax ruling.
6. Mortgage repayments
Borrowers that have a mortgage and are having difficulties in making their mortgage repayments are being given the right by the relevant lenders to stop mortgage repayments for a maximum period of 6 months.
Generally, it these borrowers also qualify for a tax return on part of these mortgage repayments. The current tax relief ruling enables borrowers to still obtain the benefit of this tax return during the period that repayments are not made provided that these mortgage repayments are paid to the lender no later than the end of 2021.
The Dutch government has relaxed this deadline of 31 December 2021 whereby the unpaid mortgage repayments can be spread over the remaining period of the remaining term of the mortgage or the borrower can opt for repayment of this amount by way of a separate loan agreement.
Lawyers specialised in Dutch fiscal law
We would be pleased to discuss with you which corona related measures can help you and your company further, and how we can support you in doing so. For questions and/or advice you can contact David Harreman.
Our country is gripped by the evolving crisis of Corona virus. Not in the last place because it brings a lot of uncertainty for companies, business enterprises and employees. LVH Advocaten understands that many enterprises s are dealing with uncertainties around the Corona crisis and the possibilities of the package of (fiscal) measures imposed by the Dutch government. For this reason, LVH Advocaten has introduced the Corona helpdesk aimed to help and advise international business enterprises operating in the Netherlands.
This page lists the measures that the Dutch government is offering to employers in the Netherlands that are hit by the Corona virus. Our legal Corona helpdesk for non-Dutch business enterprises is available to advise and help you with any legal matters around Corona virus.
As the emergency package of the Dutch government changes so fast, we have prepared an overview of all present measures, which we will update as the world changes. This overview will give you an insight of all the measures contained in the emergency package of the Dutch government as well as the relevant website in order to apply for the measure.
Instructions for employers in the Netherlands for a safe and healthy working environment during Corona Pandemic
The government has issued instructions with regard to creating a safe and healthy working environment during the Corona Pandemic. The instructions are issued by the RIVM.
Procedure for employees that are health carers
If any of your employees is a health carer then the following procedure should be followed. This procedure applies to any employee that works outside of a hospital, for example a GP, health carer for the elderly etc. Please press here for the most up-to-date measures to follow as a resident in the Netherlands.
When employees show symptoms of influenza or Corona virus
The employer cannot take preventative measures and have its employees tested on Corona. However, the employer can send the employee home in the event that the employee has symptoms similar to that of influenza.
Employees traveling to countries affected by the Corona virus
The employer cannot prevent an employee from travelling to a Corona country or area. However, if the employee does chose to do this and he or she does become sick, then under certain circumstances his or her right to receive payment of salary during sickness may be restricted.
Can I register information on employees having Corona?
If an employee does have Corona, then this cannot be registered internally or externally. This kind of information cannot be registered under the GDPR. The employee should contact his or her GP directly.
Paying salaries when employees have Corona
The employer is under a duty to continue paying salary in the event that the employee does become sick.
Emergency leave for employees dealing with Corona virus
The employee may have a right to emergency leave under certain circumstances such as;
1. to care for a person in the household who is poorly, and
2. to care for their children that go to primary school.
Salary compensation for employers to avoid dismissal of employees during Corona crisis
Are you an employer in the Netherlands and are you confronted with the situation that your working capital has reduced due to the Corona situation to the extent that you are having difficulty in paying the salaries of your staff? Then read this article carefully as the Dutch government has offered some financial assistance to help you as international employer in the Netherlands.
What requirements does the employer need to meet in order to quality for the employers compensation?
- All enterprises of all sizes make and application for this ruling.
- Employer must be confronted with a reduction of turnover of at least 20% which may need to be supported with an accountants statement.
- Employer has contracts of employment in place with the employee in question, and does not intend to apply for dismissal of that employee during the period of the employers compensation.
- Duration of the compensation is three months which may be extended once more for another three months.
- The employer still pays the employee as usual and is compensated directly by the government.
- This ruling may also apply to flex workers and also employees employed by a recruitment agency.
- The amount of compensation is a minimum of 80% with a maximum of 90%.
Unemployment contribution payable by employers affected by the Corona crisis in the Netherlands
The Dutch government is also in the process of amending the current unemployment benefit contribution of the employer (WW-premiedifferentatie). At present there is a ruling whereby these contributions are lower for fixed term contracts of employment and higher if the employee works overtime that exceeds 30% of hours on an annual basis. As some employees will need to do a lot of overtime, the Dutch government is now developing measures to address this. Watch this space for updates.
Legal assistance during corona crisis
Would you as employer like to know whether you qualify for this ruling and/or how you can apply for it? Please contact our Corona SME helpdesk for non-Dutch enterprises.
Temporary financial support for freelancers and independent business enterprises in the Netherlands during Corona pandemic
Are you a freelancer and/or independent business enterprise in the Netherlands? The Dutch government has also included some measures in its Emergency Package especially for freelancers in order for you and/or your independent business enterprise to survive the Corona storm, whereby the government grants welfare benefits and/or loans for working capital. Please find below the details of these Corona measures for freelancers in the Netherlands.
Benefits and special loan for freelancers and independent business enterprises during corona virus outbreak
A freelancer and/or independent business enterprise in the Netherlands can apply and receive benefit and/or a special loan for the business enterprise in the event that you are in financial trouble.
- This benefit addresses the need for freelancers in the areas that have been hit hard, such as café’s, restaurants, sport clubs, personal trainers, artists etc. It generally addresses the freelancers that work in the sectors that have been closed by the Dutch government.
- The freelancers can apply for support benefit at the local authority for a maximum amount of € 1500 per month (net).
- The freelancers will receive, if they qualify, support benefit for a maximum period of 3 months. The first payment should be with you within four weeks. In some cases, you can also apply for payments in advance.
- The business enterprise can, in addition, apply for a loan to use as working capital. This amount is capped at € 10.157,– in total. The interest rate is extremely low and the business enterprise can also delay repayment of the loan to a certain extent. In addition, the independent business enterprise can apply for a loan with a bank for example.
- Please ensure that all outstanding invoices of the independent business enterprise or freelancer are paid. If need be, instruct a debt collection company to collect the outstanding amounts.
- Any support benefit received from the Dutch government by the freelancer does not need to be repaid.
- The contractor has the right to terminate the contract with the freelancer. This is generally regulated in the contract, if not the Dutch Civil Code rules apply. Please consult your contract and note that both parties need to act reasonably. The notice period for example has to be a reasonable notice period, and also depends on the formulation and applicability of a termination clause in the contract.
Legal assistance during corona crisis
Would you as employer like to know whether you qualify for this ruling and/or how you can apply for it? Please contact our Corona SME helpdesk for non-Dutch enterprises.
Additional financial measures offered by the Dutch government to support business enterprises affected by the Corona crisis
The Dutch government Emergency Package of measures also contain some in order to support business enterprises, and therefore the Dutch economy, that are affected by the Corona crisis. Below you will find which other measures you as a business enterprise may be able to apply for.
In this summary you will find the financial measures offered by the Dutch government to companies and business enterprises as a response to economic impact of the Corona crisis.
Measures taken by the Dutch government for SME enterprises affected by the Corona crisis
Below you will find a summary of the financial measures offered by the Dutch government to companies and business enterprises as a response to economic impact of the Corona crisis.
Qredits loan repayments for small businesses and start-ups in the Corona crisis
Qredits is a credit provider that supports small enterprises with micro credits. This scheme is specifically for start-ups and small business enterprises, which is a vulnerable group in the Corona crisis. The Dutch government has amended this scheme whereby the start-up or small business enterprise does not need to make repayments on the loan for a period up to six months and whereby the interest rate is reduced to 2%. The Dutch government has made an extra amount of € 6 million available for this scheme.
Increased maximum GO (business loan guarantee scheme) facility
The business loan guarantee scheme, referred to as the GO scheme, has been available since 2009 and enables business enterprises or companies to secure guarantees of loans from the Dutch government. The Dutch government may guarantee the loan for 50% , being € 1,5 million with a maximum of € 50 million per business enterprise. The GO scheme budget has been increased by the Dutch government from € 400 million to € 1,5 billion. The maximum GO facility per business enterprise will increase from € 50 million to € 150 million.
Government support for the Dutch agricultural and horticultural sector during Corona crisis
Temporary credit facility guarantees for working capital for the agricultural and horticultural sector, referred to as BL Scheme. This is to support these sectors that are confronted with a reduction of sale of their products. It takes time to adjust the (type of) products in this sector as the cultivation of these products takes some time, which means that this sector cannot act quickly on the change in demand in the market due to the Corona virus. This has an effect on their working capital and the Dutch government has offered this measure just to address this need.
Dutch government support & tax cuts for tourism and accommodation sector
Reducing or stopping tourist taxes and made to measure solutions for the accommodation sector, which is hit hard by the Corona crisis. These taxes are charged to business enterprises by the local authorities based on a provisional tax assessment, which is based on a projection. The local authorities are contemplating how to address this change in demand in this sector and adjusting the provision tax assessments to reflect a steep reduction in the turnover in this sector.
Temporary financial support from Dutch government for hospitality, travel and event sectors
Emergency help desk has been set up especially for business enterprises in the sectors that have been hit hard, especially hospitality, travel, event organisation sectors and other sectors that may not qualify for the other measures. The emergency fund available at the emergency help desk has now also been extended to retailers. Your company or business enterprise can apply for temporary financial support for an amount with a maximum of € 4.000 for a period of three months. Further details of the conditions and terms will crystalize shortly and communicated to the Chamber of Commerce that your company and/or enterprise is registered with. As the emergency help desk is being overloaded with applications, the government has asked companies wanting to apply for this measure when they need it in order the relieve the system and also enables the companies that are in deep trouble to apply first. The facility is available until 26th June 2020. Furthermore, the government is urging consumers to visit their local shops in order to give them the support they so badly need during this Corona crisis.
Extension SME credit guarantee scheme (BMKB scheme) during Corona crisis
Extension the SME credit guarantee scheme, referred to as the BMKB scheme, which applies until 1st April 2021 and enables SME business enterprises or companies to secure bank guarantees and bridge financing. This extended scheme is referred to as BMKB-C. This BMKB applies, inter alia, when:
a. The business enterprise has been in business for at least 3 years,
b. No more than 250 members of staff, and
c. with an annual turnover of € 50 mio.
Please note that there is also a special ruling for start-up SME businesses. Please consult the following page for further information.
Legal assistance during corona crisis
Would you as employer like to know whether you qualify for this ruling and/or how you can apply for it? Please contact our Corona SME helpdesk for non-Dutch enterprises.
Which issues can de SME Corona help desk, set up by LVH Advocaten for non-Dutch speaking business enterprises, address to help your company through this Corona crisis?
1. What measures offered by the Dutch government are available to non-Dutch SME business enterprises operating in the Netherlands?
The Dutch government has acted quickly and has produced a set of emergency measures for the working nation, including employees, freelancers, business enterprises active in all sectors hit by the Corona crisis. This measures are updated on a very regular basis. Examples are:
- An employer can, for example, receive compensation for the salaries it has to pay to its employees,
- freelancers can receive support for loss of income,
- a business enterprise can receive support to soften the blow for loss of turnover,
- many tax measures are available to business enterprises, etc.
Please contact one of our Corona helpdesk attorney’s to assist you further and help you with advice on what is available and how you can apply for it.
2. What are the consequences of the Corona crisis for the Dutch commercial trade that has drastically reduced?
This depends on the facts. Can your business still perform and meet the demands of your customers or has your business performance been reduced drastically due to the Corona crisis?
- If your business enterprise can still perform business but then in a different way, then you may need to address your current legal processes the business enterprise has in its place to ensure that you have the protection that you need. This may mean that the Dutch Civil Code (DCC)is triggered and/or specific clauses in any contracts that you may have, which will need to be updated in accordance with the changes your company is implementing. This should be discussed further with your attorney to ensure that these changes are protected from a legal point of view.
- The DCC does have a certain rights that may apply to your situation in addition or instead of the commercial contracts. This all depends on the circumstances and the facts. Is there a commercial contract in place, and what is regulated in that contract. This needs to be interpreted as well as the relevant provisions of the DCC, which may also apply.
- The commercial contracts that you have in place may give your company certain rights when it comes to changing certain elements of your services and/or products, primary terms of delivery, remedies in the event that your enterprise cannot perform the contract etc. As everyone is in the same situation, your business enterprise should address a number of questions first together with the attorney from the Corona Helpdesk before acting. In order to advise you on the most appropriate legal steps to take, your business enterprise should ask itself the following questions:
- Is there a form of reliance on the other party? Can you still do business if the other party falls away?
- What will be the effect on the other party if you exercise the rights that your company has? This is relevant for example if the other party is heavily reliant on your turnover.
- Does your business enterprise want to do business with them again post Corona Crisis?
- What is the business enterprise most afraid of?
Based on the above, the Corona helpdesk attorney’s of LVH Advocaten can advise you on the most practicable, effective and clear legal steps to take based on the rights that you have a business enterprise.
3. The Dutch civil courts have shut down due to the Corona crisis. What does this mean for the civil procedure your company is involved in at the moment?
The business enterprise can initiate proceedings with the court but once the Dutch civil code will resume business, there will be an enormous backlog. In the event that you are already involved in a civil procedure, it may well be that the courts, once they start up again after the Corona crisis, will have a huge backlog. This means delay and if you need an urgent decision, then other alternative should be discussed with your attorney to address the company’s specific needs. Furthermore, there may be other alternatives that you use instead such as mediation or arbitration. If this option is not available in the commercial contract that you have entered into, then both parties need to agree on this solution. There are many advantages to going into mediation and also arbitration. The biggest advantage of arbitration is that the specialization level of the arbitrators in the field of the dispute is very high which means that arbitrators can be brought up to speed more quickly, which reduces the costs. Mediation also has its advantages over and above going to court. Mediation is quicker and generally speaking also more practicable. Furthermore in mediation you can dictate the language of the proceedings, which is a huge advantage. Furthermore, the mediation hearings are behind closed doors. Generally speaking it is not in anyone’s interest to wash their laundry in public. Then finally, enforcement of arbitration judgments may in some instances easier to enforce than a regular court judgment. The New York Convention on arbitration may be useful in this instance if both parties are registered in countries that are party to this convention. As the Corona crisis affects everyone, this is well worth considering. Please contact one of the Corona helpdesk attorney’s to assist you further.
4. What happens if there are certain tax bills that the company can no longer pay due to the Corona crisis?
The Dutch government has addressed many tax related issues for business enterprises that have been affected by the Corona crisis, and please consult our Corona help desk to which lists out all the measures and updates them from time to time. Furthermore, please consult our tax advocate, who can be more specific on addressing your tax needs.
5. What happens if your business enterprise is confronted with a substantial reduction in turnover due to the Corona crisis which means that the rent can no longer be paid? What are the rights of the tenant?
Generally speaking, there must be a “defect” in order for the tenant to postpone the payment of rent of obtain rent reduction. The Corona crisis is generally not considered to be a “defect” which means that your business enterprise will just have to pay. Please contact one of the attorney’s at the Corona helpdesk of LVH Advocaten to assist you further.
6. What is the position for the tenant and landlord when it comes to their duty to act as “a good tenant or landlord” during the Corona crisis?
The DCC does not provide for this situation and the conditions of your contract will need to be consulted. It is also quite likely that the contract does not cover a situation like this pandemic either. This means that the reasonableness norm will apply where the key is what the landlord and tenant, considering the fact and circumstances, can reasonably expect from each other. Please contact one of the Corona helpdesk attorney’s to assist you further.
7. Which insurance covers of the business enterprise may cover the damages caused as a result of the Corona crisis?
It is worthwhile to consult the terms and conditions of these policies as it may well be that you are covered. If you need advice on the interpretation of the terms and conditions of the insurance cover or if your insurance company refuses to consider your claim regardless of whether you are covered or not, please contact one of the Corona helpdesk attorney’s to assist you further.
8. Which preventative measures can the business enterprise take in order to mitigate the damage or reduce the likelihood of becoming insolvent due to the Corona crisis?
There are range of preventative measures that the business enterprise can take such as dismissals, not extending fixed-term contracts, closing down part of the business or even selling certain parts to ensure the viability of the company. Please consult one of the Corona helpdesk attorney’s to advise you which measures are most appropriate.
The emergency package announced by the Dutch government over the past few weeks changes almost on a daily basis and a number of websites for the application of these measures are now available. As the information flow is so vast, a summary has been made for your convenience of all the measures offered by the Dutch government to date for business enterprises. Please feel free to contact us, who will be happy to assist you further.
Summary of emergency package and information for jobs and economy
This white paper sets out what your rights may be from an international perspective under Dutch national and international law. These rights are generally formulated based on the assumption of a commercial business world as we have known it prior to the Corona crisis. However, the world has changed and is forcing us all to start to think differently. We are all affected, whether you are the seller or whether you are the buyer. But both of you have a common denominator, which is to keep afloat during this crisis! With that in mind, I can explore the different options to hand and create a win-win situation instead of a win-lose situation.
Under the Dutch Civil Code (DCC), there are many requirements on how to convene certain general meetings of business enterprises. The one that causes the biggest obstacle is the fact that the DCC requires in some instances that such general meetings require the physical presence of the parties concerned. And this may not be possible or practicable during the period of the “intelligent” lock-down imposed by the Dutch Government.
The Government has come to the rescue again and has just drafted a new draft Emergency Act enabling business enterprises to conduct formal meetings on-line during the Corona crisis. This draft Emergency Act was submitted by the House of Commons on the 8th of April 2020, and considering the urgency of the matter, this draft Emergency Act will be implemented sooner than later. Once it has been implemented it will have retro-active effect to 23rd March 2020 to a certain date and will lapse on 1 September 2020. Thereafter the normal provisions in the DCC will apply again.
Please rest assured that this draft Emergency Act covers all sorts of business enterprises ranging from publicly quoted companies to owner associations that are required to hold a general meetings.
The draft Emergency Act does set out some conditions that need to be met for the above-mentioned business enterprises to make use of the rights set out therein to conduct general meetings that require physical presence. These are:
- The members of the general meetings must be able to follow the general meeting by way of a livestream, this can be by video or by audio.
- The members of the general meeting must be able to submit questions to be addressed during the meeting no later than 72 hours before the general meeting takes place. Furthermore, these questions will need to be shared with all the members and specifically dealt with during the meeting itself. This right must be communicated expressly to the members in the invitation to attend the general meeting.
- The resolutions adopted during these general meetings are valid in the event that the above requirements are met and remain valid even in the situation where one or more of the members have not be able to adequately follow the general meeting.
As there are very specific time-limits in the Dutch Civil Code for conducting general meetings for the preparation of the annual accounts, the Dutch Government has facilitated business enterprises by enabling that these general meetings can be conducted within a window of 10 months in total from the date of the end of the financial year. This means that an additional extension of 4 months is available on top of the normal 6 months period. Furthermore, the Dutch Government has extended the period within which the management board needs to hold an annual meeting.
Furthermore, the Dutch Civil Code sets out that the management can, under certain circumstances, be held personally liable in the event that the strict procedures for conducting these general meetings are not met. Given the fact that the Corona Crisis has turned the world upside down, the Dutch Government included a provision in this draft Emergency Act that non-compliance of the publication requirement does, under certain circumstances, not result in a formal breach if such non-compliance is due to the Corona Crisis.Such circumstance is in the event that a company is declared insolvent and where its management has not complied with the publication requirements in relation to the most recent annual accounts. In the event that such failure to meet this requirement is due to the Corona crisis, the management will not be deemed to be personally liable.
Specific rights for Associations
The draft Emergency Act has made it possible for Associations to hold an annual meeting by video or by audio. Furthermore, the draft Emergency Act enables the Association to apply for an extension of time of an additional 4 months to approve the Annual Accounts period after the end of the relevant book year.
In relation to inviting members to an annual meeting through electronic means, there are a number of formalities that need to be complied with. These formalities must be complied with and in the event that certain specific formalities are not complied with, this could under certain circumstances render the resolution null and void.
- The management board of the Assocation can call for an annual meeting to be conducted on-line provided the general meeting can be attended by its members through electronic means.
- The members also need to be given, 72 hours prior to the annual meeting, the right to ask questions regarding the agenda items, which questions can be communicated either in writing or by electronic means.
- These questions and answers are to be made available to all members during the annual meeting by electronic means.
- During the annual meeting all questions raised by the members should be reasonably dealt with.
In the event that the annual meeting cannot be attended by all members because of the connection or for a technical reason, then validity of the resolutions will not be affected. Furthermore, the votes of the members can be conducted by electronic means through this draft Emergency Act.
All in all, this is good news for all business enterprises and must be relief for many of them that the Dutch Government is proving to be so flexible and practicable. Please contact our office for further information or advice.
SPECIALIZED LAWYERS
These are our lawyers who are specialized in this area.
Gentia Niesert
Peter Verheijden
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