Ընկերության տնօրենի ազատումը. ի՞նչ կանոններ են կիրառվում:

A statutory director (statutair bestuurder) of a Dutch BV or NV can be dismissed at any time by the general meeting or the supervisory board, without permission from the UWV or the subdistrict court (kantonrechter). Under Article 7:671(1)(e) of the Dutch Civil Code (BW) the employment contract in principle ends with the corporate dismissal; the director cannot be reinstated, but can claim fair compensation and the transition payment.

The exception is the titular director: someone with “director” in their job title but no corporate office. That person is an ordinary employee and has full dismissal protection, including the preventive review by the UWV or the court.

Ի՞նչ տարբերություն կա կանոնադրական և տիտղոսային տնօրենի միջև։

A statutory director is the company’s official director, appointed by the general meeting or the supervisory board under Հոլանդական ընկերությունների իրավունք or the articles of association, registered with the Chamber of Commerce (KVK) and authorised to represent the company. Usually he also has an employment contract, so he combines a corporate role with an employment relationship.

A titular director is not an official director; “director” is only the name of the position, such as manager or vice-president. He is appointed by the employer, is not registered as a director with the KVK and has no automatic authority to represent the company, although that can be granted separately.

Ինչպե՞ս է օրենքով սահմանված տնօրենը ազատվում աշխատանքից։

Two relationships must end: the corporate appointment and the employment contract. One valid decision of the competent body normally ends both.

The body that appointed the director, usually the general meeting, can suspend or dismiss him at any time. If the company has a works council (ondernemingsraad), the council must first be given the opportunity to advise under Article 30 of the Works Councils Act (Wet op de ondernemingsraden, WOR).

The decision must meet formal requirements. The general meeting must be validly convened, and the director must be able to use his advisory vote before the decision, under Article 2:227(7) BW for a BV and Article 2:117(4) BW for an NV.

Under Article 7:671(1)(e) BW, the preventive review by the UWV or the court does not apply to a statutory director. A valid corporate dismissal therefore also ends the employment contract, unless a statutory prohibition on notice applies, such as the prohibition during sickness, or the parties agreed otherwise. The notice period in the contract must still be observed.

How is a titular director dismissed?

Like any other employee. The employer needs a reasonable ground that is reviewed in advance, using one of these routes:

• termination by mutual consent through a settlement agreement;
• a dismissal permit from the UWV, for economic reasons or long-term illness;
• summary dismissal for an urgent reason under Article 7:677 BW; or
• a request to the subdistrict court to dissolve the contract.

Can a statutory director challenge the dismissal?

Yes, but not to get his job back. If the company had no reasonable ground for ending the employment contract, the court can award fair compensation (billijke vergoeding); he is also entitled to the statutory transition payment under Article 7:673 BW.

A substantive challenge argues that the decision breaches reasonableness and fairness. In practice this rarely succeeds for a statutory director, because the general meeting has wide discretion under Book 2 BW.

A formal challenge targets the decision-making itself: an invalid convocation, or a director who could not use his advisory vote. That can make the decision void or voidable, so that the director is treated as never dismissed and the company faces a wage claim for the whole period. Strict compliance with Articles 2:227 and 2:117 BW is therefore essential.

Ի՞նչ պետք է ստուգեք որպես ընկերություն։

• Is the person a statutory director registered with the KVK, or a titular director?
• Which body is competent to dismiss under the articles of association, and is the meeting validly convened?
• Has the works council been asked for advice under Article 30 WOR?
• Has the director been given his advisory vote before the decision?
• Is the director sick, so that the prohibition on notice applies, and which notice period applies?

What should you check as the director?

• Were you properly invited to the meeting and given your advisory vote?
• Is there a reasonable ground for ending your employment contract?
• Were you sick when notice was given?
• Has the transition payment been calculated correctly under Article 7:673 BW?
• Does your contract or a management agreement provide for a severance payment or change-of-control clause?

What can we do for you with the dismissal of a company director?

We advise companies and directors as part of our աշխատանքից ազատման փաստաբան պրակտիկան:

• We check the articles of association and prepare the convocation and the dismissal resolution.
• We draft the request for advice to the works council under Article 30 WOR.
• We assess whether the dismissal procedure was followed and whether the decision can be challenged.
• We calculate the transition payment and a realistic fair compensation.
• We negotiate a settlement agreement on the exit terms.

Ամփոփում

• Կանոնադրական տնօրենը համատեղում է կորպորատիվ նշանակումը աշխատանքային պայմանագրի հետ. տիտղոսակիր տնօրենը միայն աշխատակից է։
• A statutory director can be dismissed by the general meeting or supervisory board without UWV or court permission (Article 7:671(1)(e) BW).
• The meeting must be properly convened, the works council must be asked for advice (Article 30 WOR), and the director must have his advisory vote (Article 2:227(7) BW for a BV, Article 2:117(4) BW for an NV).
• A statutory director cannot be reinstated, but can claim fair compensation and the transition payment.
• A titular director has the same dismissal protection as any other employee.

Հաճախակի տրվող հարցեր