Cross-border restructuring: The legal framework and the role of the Dutch notary
09-09-2025
Cross-border restructurings (mergers (fusies), demergers (splitsingen) and conversions (omzettingen)) are extensive procedures that not only require intensive coordination with foreign counsels, but also raise many questions about the possibilities and interpretation of Dutch law. Since the introduction of the EU Mobility Directive, we have worked on a number of these procedures and in seven blogs we share our experiences with you. Among other items, we will discuss the possibilities, difficulties and points of attention involved in cross-border restructuring.
In this first blog, you can read more about the legal framework, which types of companies can restructure across borders and the important role of the Dutch notary in this process.
In the coming blogs, we will answer the following questions, among others:
What does the procedure entail and what are the points to consider when drafting the documents, such as the language requirement?
To which countries can cross-border restructuring take place?
How does the fraud test work?
Points to consider in other areas of law (such as employment law)
Protection of third parties (employees and creditors)
Difficulties in an outbound restructuring, such as pledged shares or restricted assets of a foundation converted into a B.V./N.V.
EU Mobility Directive
In 2023, the EU Mobility Directive was implemented in the Dutch Civil Code. This legislative amendment:
introduced a number of important changes with regard to cross-border mergers; and
introduced a legal framework for cross-border conversions and demergers, enabling the B.V. and the N.V. to also carry out cross-border demergers and conversions.
The law is not entirely clear on all points and raises quite a few questions.
What types of companies can restructure across borders?
In general, cross-border restructuring (merger, demerger and conversion) is possible:
for a Dutch B.V. and N.V.
with a foreign capital company, and
which capital company exists under the law of a Member State of the EEA
Is it possible for non-capital to restructure across borders?
In the Netherlands, it has been decided not to extend the legislation in Book 2 of the Dutch Civil Code to non-capital companies, which means that there is no basis in the Dutch Civil Code for cross-border mergers, demergers or conversions for this type of legal entity (including foundations, associations and cooperatives).
However, based on the freedom of establishment under Articles 49 and 54 of the Treaty on the Functioning of the European Union (TFEU), it is – under certain conditions - possible for non-capital companies to merge, demerge or convert across borders. There is a debate about this in literature and as there are no written regulations in the Dutch Civil Code in this respect, it is unclear what requirements apply to the merger/demerger/conversion procedure. It is therefore questionable whether it is desirable to start such a procedure or whether it might be better to look for an alternative.
The requirement of the same legal form
In the case of cross-border mergers and demergers, the requirement of the same legal form still applies with regard to national mergers/demergers. With regard to the term of capital companies, reference is made to Annex II to the Mobility Directive. This requirement must also be met when non-capital companies merge or demerge across borders. Since European law on non-capital companies is not harmonised and there is no list of “equivalent legal forms”, this is not always easy to determine.
What is the role of the notary in cross-border restructurings?
In the Netherlands (this differs in each Member State), the Dutch notary is the competent authority to supervise the extensive restructuring procedure. We will discuss this procedure in more detail in a subsequent blog. In case of an inbound restructuring, the notary is authorised to execute the notarial deed by which the merger/demerger/conversion is effected. An inbound restructuring occurs when a Dutch company is the acquiring company (in the case of a merger/demerger) or a company establishes itself in the Netherlands (in case of a demerger/conversion). In the case of an outbound restructuring, the notary draws up a certificate on behalf of the Dutch company (confirming that all formal requirements for the transaction in question have been complied with in the Netherlands), which is necessary to effect the restructuring in the foreign Member State. An outbound restructuring occurs when a company ceases to exist from the Netherlands.
Conclusion
Cross-border restructuring is a complex process, subject to all kinds of rules and requiring intensive cooperation with foreign counsels. In the Netherlands, the notary is the person to guide you through the entire procedure.
This blog was written by Pauline van Hecke and Julia van Reenen (legal assistant). If you have any questions about one of our blogs on cross-border restructuring, please do not hesitate to contact Pauline van Hecke.
