The recently enacted Accounting Directive Implementation Act (Uitvoeringswet richtlijn jaarrekening) (the 'Implementation Act') provides for several amendments to legislative publication and filing requirements for annual accounts of Dutch legal entities (rechtspersonen). By the Implementation Act, the European Accounting Directive (2013/35/EU) is implemented in the Dutch Civil Code (Burgerlijk Wetboek). The new regime must be applied to annual accounts with book years starting on or after 1 January 2016, but may also be applied to annual accounts over book years commencing before this date. The amendments to publication and filing requirements also have an impact on liability of directors of Dutch legal entities, regardless of the nationality of such directors.

Director's liability
In case of bankruptcy of a Dutch company each director is jointly and severally liable to the estate for the amount of the liabilities to the extent that these cannot be satisfied out of the liquidation of the assets, if the management has manifestly performed its duties improperly and it is plausible that this is an important cause of the bankruptcy. The management is considered to be manifestly improper if no reasonable managing director would perform his duties in such manner under the same circumstances. There is a collective responsibility for the managing directors resulting in a joint and several liability for the deficit. The deficit includes all costs of the bankruptcy. In principle the burden of proof for both the manifestly improper management and the causal relationship between such manifestly improper management and the bankruptcy is on the trustee. However, if the Dutch company failed to comply with the publication and filing requirements in the relevant period of three years prior to the bankruptcy, then two statutory presumptions will come into play. The first (irrebuttable) presumption is that the managing directors have performed their duties improperly. The second (rebuttable) presumption is that such improper management was an important cause of the bankruptcy. The managing directors can rebut the latter presumption by proving that there were other important causes of the bankruptcy not attributable to the management of the company, in which case the burden of proof is on the trustee again.

Publication and filing requirements
From the above it is clear that violation of the publication and filing requirements by a Dutch company may have severe repercussions for its managing directors in case of bankruptcy. Hence it is important to note the amendments to these publication and filing requirements. Prior to 1 January 2016 annual accounts of legal entities had to be prepared within five (for private or public companies with limited liability) or six (for associations, cooperatives and foundations) months after the end of a book year, unless this period was extended. Although these maximum initial periods remain unchanged, the Implementation Act shortens the maximum extension period with one month. As a consequence, the maximum extension period for private or public companies with limited liability is now five instead of six months, and for associations, cooperatives and foundations this term is now four instead of five months. Once the annual accounts have been prepared they must be adopted by the relevant body (for instance the general meeting) within two months thereafter. In principle the adopted annual accounts need to be filed with the Dutch Chamber of Commerce within eight days after adoption, but before the enactment of the Implementation Act ultimately within thirteen months after the end of the book year. With the enactment of the Implementation Act, this ultimate term for filing is shortened to twelve months for all Dutch legal entities!

Not only has the term for publication been amended, but also the filing requirements depending on the size of the enterprise. Bigger enterprises need to comply with more extensive accounting and publication requirements than smaller enterprises. Before the enactment of the Implementation Act, enterprises were divided into three categories: the small, the medium-sized and the large enterprises. In order to fall into a certain category, an enterprise had to meet two of the three relevant criteria (value of assets, net-turnover and employees) during two subsequent years. The Implementation Act provides for an increase of the applicable thresholds for the existing categories and the introduction of a new category: the so-called micro-undertakings. Micro-undertakings are subject to less stringent requirements that the small entity: filing of a brief balance sheet is sufficient.

Medium-sized and large entities are required to have their annual accounts audited by an external auditor. The Implementation Act introduced a requirement for external auditors to investigate whether, based on his knowledge and understanding about the legal entity and its environment, the management report (bestuursverslag) contains material misstatements and report the outcome thereof in their auditor's report. In relation thereto it should be noted that if the annual accounts or the management report, insofar as these were published, misrepresent the condition of the company under Dutch law managing directors are jointly and severally liable towards third parties for any loss suffered by these third parties as a result thereof.

It is likely that the current articles of association of Dutch legal entities contain stipulations regarding publication and filing requirements based on the rules applicable prior to the enactment of the Implementation Act (such as the thirteen months maximum term for publication). The amendments introduced by the Implementation Act are applicable notwithstanding the stipulations in the articles of association. This could easily result in confusion and mistakes with severe repercussions. Therefore it is to be recommended to bring the text of the articles of association in line with the new legislation.

Conclusion
To summarize, the implementation of the EU Directive on Financial Statements in the Netherlands introduces amendments to the publication and filing requirements for Dutch legal entities that could trigger statutory presumptions resulting in liability of managing directors. Shareholders and managing directors of Dutch legal entities should be aware of the new publication and filing requirements and make to necessary amendments to the articles of association of the Dutch legal entities to avoid confusion on the applicable rules and regulations.