Pre-incorporation Liability in The Netherlands

Investors wanting to do business in the Netherlands before having finalized their company incorporation process can act in the name of their company, if they are looking to set up a Dutch Besloten Vennootschap met beperkte aansprakelijkheid (“BV”) or Naamloze Vennootschap (“NV”).

The liability of the investor who is acting on behalf of such a company under incorporation will not be limited, as the company doesn’t exist yet. In the pre-incorporation phase, it is advisable to mention in all transactions that they are acting for a company in the process of incorporation (“in oprichting / i.o.”).

The investor will remain personally liable for all acts undertaken on behalf of the company, until such time as the company is incorporated and has confirmed any such pre-incorporation acts. However, if after confirmation the company fails to honor the pre-incorporation commitments, then the investor who engaged in such transaction will still be held personally liable if he/she knew or ought to have known that the company would not be able to honor those commitments after incorporation. The same applies if the company goes bankrupt within one (1) year of incorporation.

As the confirmation of pre-incorporation acts is usually recorded in the incorporation documents of the company, a third party may not have knowledge of this confirmation. The investor could send a notification to any such third parties to inform them of the incorporation of the company and the confirmation of pre-incorporation acts in the incorporation documents.

We can help you set up your company in the Netherlands and advise you on what actions are needed to comply with the provisions of Dutch company law.