Amending statutes: when is it necessary and how does it work?
When must the articles of association be amended?
There are situations where an amendment to the articles is mandatory and situations where it is prudent:
- Mandatory: The WBTR (Law on governance and supervision of legal entities, effective 1 July 2021) sets new requirements for the articles. For example, the articles must address impediment and disqualification of directors and conflicts of interest. Articles that do not yet mention these matters must be updated at the next amendment.
- Advisable: If the organisation's objectives have changed, if new governance structures are required, if the AGM process is to be amended (e.g., allowing virtual meetings) or if the organisation wishes to change its legal form.
Who decides on a statutory amendment?
Only the General Members’ Meeting (ALV) can decide to amend the articles of association. For this, a strengthened majority is usually required: two-thirds or three-quarters of the votes cast, depending on what the current articles say. Sometimes a certain quorum is also required.
The step-by-step procedure
- Drafting a draft amendment: Have a notary or a legal adviser draft a draft amendment. This is not mandatory. You may write it yourself, but a notary will spot mistakes that could cost you later.
- Make available for inspection: The draft articles must be accessible to members for at least five days before the ALV, unless the articles provide a different notice period.
- Decision at the ALV: The ALV votes on the amendment proposal with the required majority.
- Notarial deed: After the ALV decision, the amendment is recorded in a notarial deed. Without a notarial deed, the amendment is not valid.
- Registration with KvK: The notary ensures registration of the amended articles with the KvK.
What does it cost?
A notary typically charges between €300 and €600 for an amendment to the articles, depending on the scope of the changes and the notary. Small legal entities can sometimes use specialised online notary services for a lower price.
WBTR: what must be addressed at minimum?
The WBTR requires associations to set out in the articles:
- What happens if all directors are absent (ontstentenis) or prevented from acting (belet)
- How to handle conflicts of interest (a director may not participate in decisions in which they have a personal interest)
Are these points not yet included in your articles? Then you have a good reason to update them.
Tip: use the amendment as an opportunity
If you are going to engage a notary anyway, take the opportunity to check whether there are other outdated provisions that you can include in the same deed. That way you’ll pay the notary’s costs once and you’ll have a fully up-to-date document.