Currently, all legal entities are in principle established by
means of a notarial deed. As a result, an appointment with a notary
must always be made for the establishment of a private limited
company (“BV”). However, in 2019 the European Union has
adopted a Directive which should allow
for the digital incorporation of a BV. The Directive stipulates
that it should be possible to incorporate a BV digitally as of 1
August 2021, but Member States were allowed to deviate from this
date by up to 1 year. The legislative process had not yet been
completed in the Netherlands and a postponement was granted until 1
August 2022 for the implementation of the Directive in our national
legislation.

Goal

The main objective of providing for a new procedure allowing for
the establishment of companies and their registration to be carried
out entirely online, is to facilitate the establishment of
companies and their registration and to reduce the costs, time and
administrative burden associated with registration, in particular
for micro, small and medium-sized enterprises.

What will be the possibilities?

It will soon be possible to incorporate a BV by means of a
digital notarial deed. This digital notarial deed will carry the
same guarantees as the paper notarial deed. It will be possible to
set up a BV remotely via an image connection with the notary.
During the digital conversation, the notary can identify and speak
to the founder of the BV online. Subsequently, the deed of
incorporation can also be signed digitally.

It will no longer be necessary for entrepreneurs to physically
visit a notary. This does not mean that the intervention of a
civil-law notary will no longer be required. However, it does mean
that the intervention of a notary will take place in digital form
via a secure platform.

Importance of notary

The duty of a civil-law notary is to ensure that all legal
requirements are met during the incorporation of a BV. The
civil-law notary records the articles of association of a BV in a
deed of incorporation and subsequently ensures that the BV is
registered in the Commercial Register of the Chamber of Commerce.
The civil-law notary’s task in the digital incorporation of a
BV will not differ much from a physical incorporation. The only
difference – and in particular the biggest advantage – is that the
incorporation will be quicker than before. This will save
entrepreneurs time and money.

This new regulation will enter into force on 1 August 2022. In
addition to this possibility to have the incorporation take place
digitally, the incorporation at the notary remains an option. If
there is a suspicion of identity fraud, it is even mandatory to
physically go to the notary.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.