Cooperativa olandese: significato, responsabilità dei soci e funzionamento

A Dutch cooperative (coöperatie) is a legal entity that does business with its own members to meet their material needs, under Article 2:53 of the Dutch Civil Code (BW). Unlike an ordinary association it may distribute profit to its members, and its name must show whether members’ liability for a deficit on dissolution is excluded (U.A.), limited (B.A.) or unlimited (W.A.).

The cooperative is set up by notarial deed and registered with the Chamber of Commerce (KVK). Members hold a membership, not shares: each member has one vote by default under Article 2:38 BW, although the articles may give some members more votes. Below we explain what the form is, how liability works, how it is governed and when it fits.

What is a cooperative under Dutch law?

A cooperative is a special kind of association (vereniging), incorporated by notarial deed as a cooperative. Under Article 2:53(1) BW its articles must state that it aims to meet certain material needs of its members through agreements it concludes with them in the business it runs for that purpose.

It has legal personality: it owns its own assets, signs its own contracts and is liable for its own debts. The general rules for associations in Title 2 of Book 2 BW apply to it, unless the cooperative title deviates from them (Article 2:53a BW). An ordinary association may not distribute profit among its members (Article 2:26(3) BW); a cooperative may.

The members are owners and counterparties at the same time. They buy from the cooperative, sell to it or obtain work through it. Under Article 2:53(3) BW the articles may allow the cooperative to conclude the same kind of agreements with non-members, but the agreements with members must not become of subordinate importance.

The mutual insurance association (onderlinge waarborgmaatschappij) is regulated in the same article of the Civil Code. Its object is to conclude insurance contracts with its members. The rules on incorporation and members’ liability are largely the same.

How are members liable: U.A., B.A. or W.A.?

Members are only liable for a deficit when the cooperative is dissolved, and only towards the cooperative itself. Under Article 2:56 BW the articles can exclude that liability (U.A.) or cap it (B.A.); otherwise the statutory rule applies (W.A.).

Under Article 2:55 BW, the people who were members at the time of dissolution, or who ceased to be members less than one year earlier, must contribute to a deficit. The articles may set a longer period. If the cooperative is dissolved after bankruptcy, the year is counted back from the date of the bankruptcy order. Without a formula in the articles, all members contribute in equal shares.

Members can only rely on the exclusion or cap if the suffix U.A. or B.A. is at the end of the cooperative’s name, and Article 2:56(2) BW requires the cooperative to use its full name. A supplier cannot sue a member for an unpaid invoice of the cooperative during its life; the duty to contribute only arises on dissolution.

A cooperative that has not fully excluded members’ liability must follow the stricter rules of Article 2:61 BW. Membership applications are made in writing, and a certified copy of the members’ list is filed with the trade register on registration. Within one month after the end of each financial year, the board files the changes to that list.

The U.A. form protects members in their capacity as members only. It does not cover a personal guarantee given to a bank, obligations a member owes under the articles or a members’ agreement, or the liability of a member who is also a director. Under Article 2:9 BW each director owes the cooperative a proper performance of duties. Under Article 2:50a BW, the bankruptcy rule of Article 2:138 BW applies to directors of a cooperative whose articles are in a notarial deed and that pays corporate income tax.

How does a cooperative compare with a BV, an association and a VOF?

The choice comes down to who bears the risk, who holds the power and how money leaves the entity. In a BV, votes and dividend follow capital; in a cooperative, voting follows membership and distributions usually follow the business each member does with the cooperative.

If the participants want to be treated according to the business they bring in, the cooperative fits. If they want to be treated according to the money they invest, a BV is usually the better choice. Many structures combine both: members take part through their own BVs, and the cooperative holds shares in an operating BV.

How is a cooperative governed?

A cooperative has two compulsory bodies: the general meeting of members (algemene vergadering) and the board (bestuur). The articles may add a supervisory board; larger cooperatives that meet the conditions of Article 2:63b BW must report this to the trade register and then fall under the structure regime (structuurregime).

The general meeting amends the articles, appoints and dismisses the board and adopts the annual accounts. Under Article 2:58 BW the board draws up the annual accounts within six months after the end of the financial year; the general meeting can extend that period by up to four months in special circumstances. Under Article 2:38 BW every member who is not suspended has one vote, unless the articles give certain members more votes, for example in proportion to turnover or deliveries.

The board runs the business, represents the cooperative and reports to the general meeting. Board members are entered in the KVK trade register. Because members are also counterparties of the cooperative, conflicts of interest arise more often than in a BV; the articles should set out how they are handled.

One protection for members is specific to cooperatives. Under Article 2:59 BW the cooperative cannot change the agreements it has concluded with its members by a resolution, unless it clearly reserved that power in the agreement itself. A reference to the articles, regulations or general terms is not enough, and the change must be communicated to the member in writing.

How are disputes between members and the cooperative resolved?

Disputes usually concern both business and governance: a member unhappy about prices or the allocation of work also votes in the general meeting. The articles are the first line of defence, with clear rules on decision-making, expulsion and deadlock.

A member can challenge resolutions of the general meeting or the board before the civil court under the general rules on the nullity and annulment of resolutions in Book 2 BW. For deeper conflicts, the enquiry procedure before the Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal is available (Article 2:345 BW). Under Article 2:346(1)(a) BW, at least 300 members, or members representing one tenth of the membership or of the votes, may file the request, unless the articles set a lower threshold.

How do you set up a cooperative?

A civil-law notary (notaris) executes a deed of incorporation in Dutch that contains the articles of association (Article 2:27 BW). The cooperative then registers with the KVK trade register, including its board members and its ultimate beneficial owners in the UBO register.

An association is formed by a multi-party juridical act (Article 2:26(2) BW), so a cooperative needs at least two founding members. An entrepreneur who wants a one-person entity should look at a BV instead.

The articles must state the name including the suffix, the seat in a Dutch municipality and an object that meets Article 2:53 BW. They should also cover admission and termination of membership, members’ obligations, voting, the board, the financial year and the allocation of profit and losses. Later amendments require a new notarial deed.

The commercial detail belongs in a members’ agreement or regulations: delivery obligations, quality standards, pricing, allocation of assignments, confidentiality and non-competition. The articles are public at the KVK, and these terms change more often than a notarial deed can follow. Keep Article 2:59 BW in mind: changes to members’ contracts need a clear reservation in the contract itself.

How are profit and tax treated?

A cooperative may distribute profit to its members on the basis set out in its articles. That is the central difference from an ordinary association, which under Article 2:26(3) BW may not distribute profit at all.

The cooperative is a taxable entity for corporate income tax and normally also for VAT, and the Belastingdienst applies its own conditions to payments to members. Rates and those conditions change from year to year; they are for a tax adviser. We do not advise on tax structuring, but we do draft and review how entitlement to distributions is defined in the articles and what a member receives on leaving.

For cooperatives of self-employed professionals, one warning matters most. Membership of a cooperative does not by itself make someone an independent contractor rather than an employee. The relationship is judged on its actual content, so the contracts between members, the cooperative and clients need careful drafting.

When is a cooperative the right legal form?

The cooperative works well when independent businesses want to cooperate without merging: joint purchasing, joint sales or processing, a shared back office, or one contracting party towards clients. It is widely used in Dutch agriculture, energy, retail, healthcare and professional services.

It fits poorly in three situations. Outside investors who want control in proportion to their money will expect a BV with shares. Decisions that must be taken quickly by one person do not suit a member democracy. And where members’ interests structurally diverge, every faction has a vote and the only deadlock mechanism is the one in the articles.

Financing needs separate attention. A cooperative has no share capital, so equity comes from member contributions and retained profit. Banks often ask members for personal guarantees, which brings back personal exposure in a cooperative U.A. outside Article 2:56 BW.

How does a membership end, and how does the cooperative end?

A membership ends by death of the member, by notice from the member or the cooperative, or by expulsion (Article 2:35 BW). Unless the articles provide otherwise, a member can only give notice for the end of a financial year, with four weeks’ notice (Article 2:36(1) BW).

Article 2:60 BW guarantees the freedom to leave a cooperative. The articles may attach conditions to leaving, but only conditions in line with the cooperative’s purpose; a condition that goes further is disregarded to that extent. Under Article 2:36(3) BW a member may also leave immediately within one month after learning of a resolution that limits their rights or increases their obligations, unless the articles exclude this for precisely described rights or for financial rights and obligations.

The cooperative itself is dissolved by a resolution of the general meeting. The assets are then liquidated, creditors are paid and any surplus is distributed as the articles provide. If the assets fall short, the suffix chosen at incorporation decides whether members and recent former members must contribute under Article 2:55 BW.

What should you check as a member of a cooperative?

• Check the suffix in the name (U.A., B.A. or W.A.) and what it means for a deficit on dissolution.
• Check your delivery or purchase obligations in the articles and the members’ agreement.
• Check whether the cooperative reserved the right to change your agreements, as Article 2:59 BW requires.
• Check the notice period and the conditions for leaving, and what you receive or still owe on exit.
• Check whether you gave a personal guarantee to a bank on behalf of the cooperative.

What should you check as founder or board of a cooperative?

• Check that the object in the articles meets Article 2:53 BW and that business with members stays the main activity.
• Check whether the voting rules (one member one vote or weighted votes) match how the cooperative really works.
• Check that the members’ list is filed with the trade register if liability is not fully excluded (Article 2:61 BW).
• Check that the annual accounts are drawn up within six months after the financial year (Article 2:58 BW).
• Check the rules on conflicts of interest, expulsion and deadlock in the articles.
• Check whether the articles still match the members’ agreement and the actual business.

What can we do for you with a cooperative?

avvocato aziendale team advises founders, members and boards of cooperatives in the Netherlands.

• We assess whether a cooperative, a BV or another legal form suits your plans.
• We draft the articles of association in consultation with the notary, including the liability suffix and voting rules.
• We draft the members’ agreement or regulations on deliveries, pricing, allocation of work and exit.
• We review existing articles against the way your cooperative actually works and propose amendments.
• We advise members and boards on expulsion, notice, challenged resolutions and enquiry proceedings before the Enterprise Chamber.

Sintesi

• A Dutch cooperative is an association that does business with its members to meet their material needs (Article 2:53 BW) and may distribute profit to them.
• Members are only liable for a deficit on dissolution, towards the cooperative, depending on the suffix U.A., B.A. or W.A. (Articles 2:55 and 2:56 BW).
• Each member has one vote by default; the articles may weight votes (Article 2:38 BW).
• The cooperative cannot change members’ agreements by resolution without a clear reservation in the agreement (Article 2:59 BW).
• Incorporation requires a notarial deed and registration with the KVK; leaving members are protected by Articles 2:36 and 2:60 BW.

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