This is what the WBTR means for your organisation
- Sergej Schuurman
- 18 Oct 2023
- Edited 27 Dec 2022
- 8 min
- Rules and laws
When the Act on Management and Supervision of Legal Entities (Wet Bestuur en Toezicht Rechtspersonen, WBTR) entered into effect in July 2021, the governance rules for verenigingen, stichtingen, coöperaties, and onderlinge waarborgmaatschappijen changed. The rules on supervision and management were aligned with those of the bv and nv. Find out what has changed and how to deal with it as a director.
The main points of the WBTR are:
- Introduction of a one-tier board
- What arrangements to put in place to best fulfil the governance role
- Prohibition on personal interests
- Mandatory arrangements to cover an inability to perform duties
- Prohibition on more voting rights for a director
- Adjustment of liability
- More options for the dismissal or resignation of the board
- Informal association
For each topic, we discuss what has changed and what you need to do yourself.
Besides the bv, nv, coöperatie, and onderlinge waarborgmaatschappij (the private limited company, public limited company, cooperative, and mutual insurance society), there is now also a legal basis for verenigingen en stichtingen to introduce a supervisory body, such as a board of supervisors. This was already possible through the appointment of a board of supervisors in the articles of , but it was not yet mentioned in the law. A board of supervisors monitors policy and general affairs. It is not mandatory.
You can choose either a one- or a two-tier board system under the WBTR when you are appointing a supervisory board.
If you opt for a one-tier board, executive (board) and non-executive (supervisory) directors sit together on a single board. The lines between board and supervisor are shorter, and the involvement of supervisors in the organisation is greater. Only a non-executive director may chair the board in this connection. Non-executive directors are always natural persons; executive directors can be natural or legal persons. If you opt for a one-tier board, you have a separate supervisory body outside the executive board.
Setting up a supervisory board
Would you like to set up a supervisory board? Then check if your current articles of association allow for this. If not, amend your articles of association through the notary.
Does your vereniging or stichting already have an internal supervisor? Map out your organisation's structure and see whether that internal regulator functions like a supervisory board. A notary or other lawyer can do this for you, but you may also do it yourself. The new rules on the supervisory board will then apply to this internal supervisor.
No entry into force on 1 July 2021
The provisions that have created the legal basis for a one-tier board in verenigingen and stichtingen did not take effect from 1 July 2021. The entry into force of these provisions in particular was delayed. The provision on the two-tier board did enter into force.
Managing and supervisory directors of a BV or NV perform their duties to serve the interests of the company. This is already laid down in law. The self-interest of the legal entity, the bv or nv, comes first. So not the interest of the director or supervisory director.
This requirement now also applies to associations and foundations. Within associations and foundations, the different interests of the legal entity and directors often come together. This new requirement should prevent abuse of associations and foundations.
You do not have to do anything other than continuing to do your job the best you can. This change applies automatically. You can, however, include an additional stipulation in the articles of association that directors and supervisory board members serve the interests of the vereniging or stichting to show what the organisation stands for.
Does a director or supervisory board member have a direct or indirect personal interest that conflicts with those of the legal entity? In that case, they may not participate in consultations or take any decision on them. Personal interest arises, for example, if the legal entity wants to contract a director's partner, or a member of their family, to do a job.
If this could prevent a board decision from being taken because there are too few board members, the supervisory board takes the decision. If there is no supervisory board, shareholders or members take the decision.
Different rules apply to a stichting, which has no shareholders or members. If there is a conflict of interest within a stichting and there is no supervisory board to make a decision, the board of the stichting can take the decision. They must then put in writing all the considerations involved in taking the decision.
Old articles of association
Do you still have articles of association with conflict-of-interest rules that do not comply with the new regulation provision? Then, since 1 July 2021, those rules have not been applicable. In principle, you do not need to amend the articles of association to take account of the new regulatory provision, as the new rules apply immediately and automatically. To avoid confusion, though, it is advisable to have a notary remove the old provision from your articles of association.
Since 1 July 2021, the articles of association for verenigingen, stichtingen, coöperaties, and onderlinge waarborgmaatschappijen must contain rules covering the absence or the inability to act of directors and supervisory board members. ‘Absence’ refers to a director no longer being in office. For example, on resignation, retirement or death. Inability to act is when a director is temporarily unable to act, such as due to suspension or illness. In such cases, the articles of association should specify who may take decisions if the management board or the supervisory board cannot. That way you can avoid a stalemate. A rule on absence or inability to act already applies to bvs and nvs.
What should you do?
The transitional provisions of the WBTR indicate that you have to include this new rule on who can make decisions when managing and supervisory board members cannot do so in the articles of association no later than when the next amendment to the articles of association takes place.
The WBTR stipulates that the director, chair, or supervisory board member of a vereniging, stichting, coöperatie or onderlinge waarborgmaatschappij may not cast more votes than the other board directors or supervisory board members taken together. For example, if there are 2 board members, then one of them does not get an additional vote. This already applies to the bv and nv. This provision is in line with the requirement that directors and supervisory board members must act in the interests of the legal entity and its affiliated company or organisation. This interest should be served as objectively and neutrally as possible.
Valid for another 5years
Do your articles of association still state that a director can cast more votes than the other directors taken together? In that case, that provision will be valid for a maximum of 5 years after the introduction of the WBTR, or until the articles of association are next amended, whichever comes first. At that point, you will have to change it.
With the introduction of the law, a receiver can, in the context of a bankruptcy, hold the directors and supervisory board members of an vereniging, stichting, coöperatie and onderlinge waarborgmaatschappij liable for any deficit in the bankruptcy. This can be based on the improper performance of duties. That is, such improper performance must be a major cause of the bankruptcy. The receiver must prove that this is the case. The directors’ liability is greater, because they are personally more at risk.
Examples of improper performance include the following: the directors and supervisory board members have failed to see to it that the financial statements are filed or have entered into agreements that they know the legal entity cannot honour, or the records are not sound.
Directors and supervisory board members of nvs, bvs and commerciële verenigingen and stichtingen are already liable based on such improper performance of duties. For non-commercial legal entities in particular, the extension of liability means an increase in personal risks. For that reason, voluntary governance has carried a higher risk since 1 July 2021 in cases where there is mismanagement.
What should you do?
To avoid liability, you should make sure to lay down clear agreements in the articles of association about purchases, finances, and decision-making, and that you will divide tasks appropriately within the board. Board members are more at risk if these items are not seen to as they should be.
The courts now have more discretion to dismiss a stichting’s director or supervisory board member if requested to do so by the prosecution or an interested party. It was already possible to make such a request if directors or supervisory board members acted in breach of the articles of association or if there was mismanagement. With the introduction of the WBTR, these grounds for dismissal have been expanded and the court can also dismiss a director or a supervisory board member on the following grounds:
neglect of duty
a substantial change in circumstances
other compelling reasons
failure to comply, either at all or fully, with an order to provide insights into the organisation and finances of the stichting.
This applies only to a stichting, because in the case of a bv or nv, it is the supervisory board or the shareholders who control the course of affairs, and in the case of a vereniging or coöperatie, it is the members who do so.
In addition to associations with full legal capacity, there are also those with limited legal capacity, known as informal associations. The WBTR applies to these, too. An informele vereniging:
was not established by a notary
has a membership base, and these members act as an organised group to the outside world
may have, but does not have to have, drawn up its own articles of association
cannot have property in its name or receive inheritances. It is for this reason that it is said to have limited legal capacity.
What should you do?
Register your informal association with the Netherlands Chamber of Commerce KVK. That means the vereniging is primarily liable, followed by the directors. The law states that directors of an informele vereniging are jointly and severally liable if there are damages in case of the vereniging's bankruptcy. The bankruptcy must have been caused by mismanagement on the part the directors. For example, if the board enters into agreements on behalf of the vereniging that they know it cannot honour.
This is an extension of the liability to be borne by directors of informele verenigingen. To ensure that directors serving in a voluntary capacity are not put off by this, only a receiver can bring a claim against directors in a bankruptcy. For example, if the records are not in order, that is not immediately a reason to hold the directors liable in a bankruptcy.
The WBTR clearly states only that directors of an informele vereniging may be liable in the event of the vereniging’s bankruptcy because of an improper management. An informele vereniging need not have articles of association. We can assume that the provisions that articles of association must comply with under the law (in Dutch) do not apply to informele verenigingen. However, because an informele vereniging is also a legal person, we can assume that provisions on the proper performance of duties or conflict of interest do apply to it.
The WBTR does not apply to owners' associations (verenigingen van eigenaars, VvE). The rules from Book 5 of the Civil Code (in Dutch) for the owners’ association continue to apply.
Does a coöperatie perform the tasks of an owners’ association? If so, the WBTR does apply to the coöperatie.
Help with drafting articles of association
Need help drafting your articles of association? At WBTR.nl you can find help with the drafting of your articles of association (in Dutch), including step-by-step plans to support you if you want to do that yourself.
Do you have your articles of association ready? A notary can help you amend and register your articles of association with KVK.
In this (Dutch-language) information sheet from the Ministry of Justice and Security, you can find out more about what the WBTR means for your association or foundation.