GOVERNMENT CONTROL IN A COMPANY AND EU LAW
Infringement of EU principle of free movement of capital
AEM SpA (Azienda Elettrica Milanese SpA) is a company limited by shares set up by the Commune of Milan operating in the public service sector as distributor of gas and electricity, the management of which it was granted by that commune. In 1998 its shares were listed on the stock exchange and a first tranche of shares were sold, after which the Comune di Milano held 51% of the company’s capital. Continuing the company’s privatization, by Decision of 17 February 2004 the municipal council of the Comune di Milano (‘the municipal …
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COMPANY REGISTRATION OBLIGATIONS UNDER DUTCH CARIBBEAN LAW
Records must be kept up-to-date
The board of managing directors of a Netherlands Antilles NV or BV must keep a register in which the names and addresses of all holders of registered shares shall be recorded, stating the class of share, the voting rights attached thereto, the amount paid thereon or credited as paid, the obligation to make an additional contribution if any, the date of acquisition and whether or not a share certificate has been issued.
A record must also be made of the establishment or transfer of a right of usufruct over the shares and the establishment of …
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RECORD KEEPING OBLIGATIONS OF DUTCH CARIBBEAN LIMITED LIABILITY COMPANIES
Records must be kept for 10 years
The board of managing directors of a Netherlands Antilles NV or BV must for administrative purposes keep a record of the financial condition and of everything relating to the activities of the NV or BV according to the requirements to which such activities give rise, and it must keep the books, documents and other data-carriers in respect thereof in such a manner that the rights and obligations of the company can be ascertained at any time.
The board of managing directors must keep the books, documents and other data-carriers for a period of …
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SETTING ASIDE AN AGREEMENT UNDER THE LAWS OF THE DUTCH CARIBBEAN
Partial dissolution is possible
According to article 6:265 par. 1 Netherlands Antilles Civil Code, every failure of one party in the performance of one of its obligations gives the other party the right to set the contract aside in whole or in part, unless the failure, given its special nature or minor importance, does not justify a setting aside of the contract and the consequences thereof.
Based on article 6:270 Civil Code, partial dissolution of an agreement is possible if, e.g., the other party only partially performed its obligations. Partial setting aside results in a ‘reduction’ of the (mutual) obligations.
THE EUROPEAN UNION CROSS-BORDER MERGER DIRECTIVE
The directive deals with mergers in the European Community only
On 20 September 2005, the Council of the European Union has adopted a directive on cross-border mergers of companies aiming at facilitating the carrying-out of cross-border mergers between various types of limited liability companies governed by the laws of different EU Member States. This directive will facilitate the cooperation and consolidation between companies from different Member States by reducing the difficulties encountered, at the legislative and administrative levels, by cross-border mergers of companies in the Community.
The EU Member States shall adapt national laws to comply with the provisions of …
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BANKING REGULATIONS IN THE DUTCH CARIBBEAN
Attracting funds from the public is prohibited
The Netherlands Antilles Ordinance on the Supervision of Banks and Credit Institutions 1994 (‘Landsverordening Toezicht Bank- en Kredietwezen 1994’) does not use the term ‘bank’ (other than when referring to the Central Bank). It prohibits anyone to engage in the business of a credit institution (‘kredietinstelling’) in the Netherlands Antilles without a license issued by the Central Bank.
Such Ordinance in principle relates to credit institutions only, but in article 45 prohibits anyone to directly or indirectly turn to the public in the Netherlands Antilles with a view to the attracting of funds …
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STATUTORY LIMITATIONS IN THE DUTCH CARIBBEAN
Limitation periods for bringing legal actions
According to the Netherlands Antilles Civil Code the civil law limitation period for a claim of nullification of a legal act on the basis of fraud (‘bedrog’), error (‘dwaling’) or prejudicing (‘benadeling’) is three years after the fraud, error or prejudice is discovered.
The civil law limitation period for a claim for damages from a tortious act (‘onrechtmatige daad’) such as fraud (‘bedrog’) is five years after the beginning of the day following which the aggrieved party became aware of the damages, but in any case not longer than twenty years after the day …
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THE DUTCH CARIBBEAN MEMBER-MANAGED COMPANY
No separate managing board
Until March 1, 2004, in the Netherlands Antilles only manager-managed companies existed. According to the current Corporate Act, the articles of association may provide that a company shall be a member-managed company, i.e. a company without a board of directors.
In a member-managed company, the shareholders (members) are in charge, including the company’s day-to-day affairs. The member-managed company is for smaller companies, e.g. family businesses, with only one or a few shareholders.
The designation of a limited liability company as either a member-managed or a manager-managed company is important because it defines who are agents and …
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RESIDENTIAL PROPERTY TAXATION IN CURACAO
I received this question
Q. What does residential property tax in Curacao cover (i.e. garbage collection, road maintenance)? I understand that it is not high — 1200 guilders (ANG) a year.
A. The residential property tax is being paid to the Curacao island collector and is due because of ownership of a residence or other building. The law does not prescribe for what purposes the money should be used. That is up to the island government to decide. The rate is 0.3% of the value of the property. The garbage collection is charged in a separate statement from the island …
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CORPORATE TORT IN THE DUTCH CARIBBEAN
Representative not always personally liable
A corporation or (limited) partnership can commit a tort on the basis of an act of one or more representatives, e.g. a managing director or an employee.
Whether or not a tort committed by a representative is considered a tort by the corporation or partnership as well, depends on whether pursuant to generally prevailing views the act of the representative must be deemed to be an act of the corporation or partnership. As in many other cases, this will depend on the circumstances of the specific case.
If a corporation or partnership committed a tort, …
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THE CHAMBERS OF COMMERCE IN THE DUTCH CARIBBEAN
Publicly accessible
Corporations (NVs, BVs, foundations) and partnerships must be registered with the commercial register of the chamber of commerce of their place of business (e.g. Aruba, Curacao, Bonaire, St. Maarten). The chamber keeps a complete roster of businesses.
A business is required to file certain information and to deposit certain documents with the commercial register.
In case of a legal entity this information includes the name, the objects, the statutory seat, the offices, the entity’s capital as well as information with respect to …
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PREFERRED AND PRIORITY SHARES IN THE DUTCH CARIBBEAN
Shares with certain rights attached
In addition to ordinary shares, shares without voting rights and shares without any denomination, the law of the Netherlands Antilles provides for preferred shares (‘preferente aandelen‘) and priority shares (‘prioriteitsaandelen‘).
Preferred shares usually entitle the shareholder to a certain preference with respect to the payment of dividends. They can (too) entitle the holder to a balance upon the liquidation of the company.
Priority shares are shares that give the holder certain controlling rights. Examples: the right to appoint the managing directors or to make a binding recommendation for the appointment of such directors and the …
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