REPLACEMENT OF PHYSICAL BY ELECTRONIC FILES UNDER NETHERLANDS ANTILLES LAW
The balance sheet and profit & loss account must be retained in paper form
The Netherlands Antilles Civil Code requires a company to keep its accounts and retain relevant data in such a manner that its obligations can be known at all times. This obligation to ‘keep and retain’ has to be met in such a manner that the requirements for the company involved can be known and are met. Specific mention is made to ‘retain records and other data carriers’. In the official explanatory memorandum (‘Memorie van Toelichting’) it is explained that ‘other data carriers imply microfilm and the like as these data carriers are becoming more and more customary in the corporate sector’.
The Civil Code subsequently stipulates that it is permissible – for retaining purposes – to transfer data from the original data carrier to another data carrier. The explanatory memorandum states in this context that it is expected that in practice this transfer will involve a computerization of the paper file.
It is not stated what the consequences of the transfer are for the original data, more specifically whether or not they can be destroyed. The official explanatory memorandum, however, specifies that companies are permitted to retain only the transferred records. There is one important exception. The Civil Code explicitly rules out the possibility of transfer of the ‘paper’ balance sheet and profit & loss account of a company on another data carrier. These records have to be retained also in their paper form.
Karel Frielink
Attorney (Lawyer) / Partner
