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ACT ON DIGITAL INCORPORATION ENTERS INTO FORCE IN THE NETHERLANDS

As from 1 January 2024, it will be possible to electronically incorporate a Dutch private limited liability company (“BV”) in the Netherlands. The new act making this possible ensues from a European Directive which should have been transposed into Netherlands law by 1 August 2022, but, as is often the case, the Netherlands failed to meet this deadline.

With this act, which amends Book 2 of the Civil Code and  the Notary Act, it will become possible for EU citizens to incorporate a BV electronically. It is worth noting that residents of Saba, Bonaire and St Eustatius are also considered EU citizens. It does not matter where in the world the EU citizen is present during the incorporation process. What does matter is where the notary is present. The notary must be present in the Netherlands and therefore cannot – for example - provide his assistance in the electronic incorporation process from his holiday address or anywhere else outside of the Netherlands.

An important deviation from the "paper" incorporation of the BV is that the language of the deed of incorporation of an electronically incorporated BV may be English. As it would be impractical for a BV incorporated in English to have to execute a deed of amendment of the articles of association (which cannot be done electronically) in the Dutch language, the Dutch legislator has made a provision for this. If (i) the BV was incorporated electronically and (ii) the language of the articles of association has not changed in the meantime, an amendment of the articles of association may also be executed in English.

Another important difference is that the capital of the electronically incorporated BV, may only be contributed in cash. If it is intended to pay-up the shares other than in cash, an electronic incorporation is not possible in the Netherlands.

For the signing of the electronic deed, the signatory must "appear" before the notary, which takes place via an image and sound connection that must provide a "faithful representation" of what is happening on both sides of the screen. This means that if the image or sound falters, the process of passing the deed must be aborted and continued at a later time. Incidentally, the signatory can choose to still appear before the notary "in person". This may no longer sound like an electronic incorporation, but signing (even in the case of a physical appearance) will take place by means of an electronic signature via the data processing system to which every notary in the Netherlands will be connected and which will use an eIDAS identifier with reliability level "high".

When verifying and establishing the identity of the incorporator his or her Citizen Service Number (or the equivalent thereof used in another member state) is required and a proof of identity must be shown via the eIDAS identification system. It is therefore impossible for EU citizens that do not have eIDAS access to electronically establish a BV in the Netherlands.

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