Liġi tan-negozju għall-intraprendituri fl-Olanda: x'għandek tirranġa l-ewwel

Imprenditur li jibda negozju fl-Olanda jieħu tliet deċiżjonijiet fl-ewwel ġimgħat li huma diffiċli biex jinbidlu aktar tard, u ta’ min jieħu kull waħda minnhom b’mod deliberat.

L-ewwel waħda hija l-forma legali. Proprjetà unika jew sħubija ġenerali hija malajr u rħisa biex tiġi stabbilita iżda tħalli lill-intraprenditur responsabbli għad-djun tan-negozju bl-assi privati ​​tiegħu, u fi sħubija ġenerali kull sieħeb huwa responsabbli għall-obbligi kollha tas-sħubija. Kumpanija privata limitata tillimita r-responsabbiltà għall-kumpanija, iżda ġġib magħha l-obbligi tal-Ktieb 2 tal-Kodiċi Ċivili, inkluż il-preżentazzjoni annwali u d-dmirijiet tad-diretturi li huma infurzabbli kontra d-diretturi personalment fejn il-kumpanija tfalli. It-tieni hija l-pedament kuntrattwali: termini u kundizzjonijiet ġenerali li fil-fatt jiġu pprovduti qabel ma jiġu konklużi l-kuntratti, u, fejn ikun hemm aktar minn fundatur wieħed, ftehim tal-azzjonisti li jittratta t-tluq, l-imblokk u t-trasferiment tal-ishma. It-tielet hija l-proprjetà intellettwali, fejn iż-żmien ma jaħfirx: trade mark li ma tkunx irreġistrata qabel ma xi ħadd ieħor jirreġistraha ġeneralment tintilef, u d-drittijiet maħluqa minn kuntrattur jappartjenu lill-kuntrattur sakemm ma jkunux ġew assenjati bil-miktub.

L-impjieg iżid ir-raba’ saff, u l-liġi tax-xogħol Olandiża hija fil-biċċa l-kbira obbligatorja: kuntratti għal żmien fiss jinbidlu f’kuntratti permanenti taħt ir-regola tal-katina, diversi klawżoli standard huma nulli sakemm ma jissodisfawx kundizzjonijiet stretti, u t-tkeċċija teħtieġ rotta formali.

Liema forma legali għandek tagħżel?

Choose a private limited company (besloten vennootschap, BV) if your business takes on real financial risk; choose a sole proprietorship or partnership if the risk is small and you want low costs. The difference is whether your private assets are exposed.

A sole proprietorship (eenmanszaak) has no separate legal personality: you are liable for all business debts. In a general partnership (vennootschap onder firma, vof), each partner is jointly and severally liable for the whole of the partnership’s debts under Article 18 of the Dutch Commercial Code (Wetboek van Koophandel). A BV is incorporated by a civil-law notary (Article 2:175 BW) and has no minimum capital since 1 October 2012.

A BV does not protect you completely. Under Article 2:248 BW, directors are liable for the deficit in a bankruptcy if they manifestly performed their duties improperly, and late filing of the annual accounts makes that presumed.

What must you register before you start?

You must register your business with the Netherlands Chamber of Commerce (Kamer van Koophandel, KvK), at the earliest one week before and at the latest one week after you start. For a BV, the notary usually arranges the registration after incorporation.

The KvK passes your details to the Tax and Customs Administration (Belastingdienst), which assesses whether you are an entrepreneur for VAT and issues a VAT identification number. If you hire staff, you must also register as an employer for payroll taxes. Tax planning and structuring fall outside our practice; for those, consult a tax adviser.

Some activities need a permit. Since 1 January 2024, permits for building and environmental activities fall under the Environment and Planning Act (Omgevingswet), and the municipality grants permits for catering, alcohol and many other local activities. Financial services require a licence from the Dutch Authority for the Financial Markets (AFM) or De Nederlandsche Bank (DNB).

Which contracts do you need from day one?

Most start-ups need general terms and conditions and, with more than one founder, a shareholders’ agreement. Both only work if they are in place before the first dispute.

General terms and conditions (algemene voorwaarden) are governed by Articles 6:231 to 6:247 BW. They bind your customer only if you made them available before or when the contract was concluded, for example by sending them with the quotation; otherwise the customer can annul them under Article 6:233(b) BW. Consumers have extra protection: certain clauses are blacklisted or presumed unreasonable under Articles 6:236 and 6:237 BW.

Agree payment terms expressly. Between businesses, an invoice is due within thirty days if nothing else was agreed, and statutory commercial interest is due on late payment without a reminder (Article 6:119a BW).

A shareholders’ agreement (aandeelhoudersovereenkomst) arranges what the articles of association usually do not: what happens when a founder leaves, how deadlock is resolved, and at what price shares must be offered to the others. Without such arrangements, a founder dispute in a BV often ends in proceedings under the dispute settlement rules of Articles 2:335 to 2:343c BW.

How do you protect your name and your ideas?

Register your trade mark before you invest in the brand, and have every freelancer or agency assign their rights to you in writing. Both steps are cheap at the start and expensive to repair later.

A trade mark is protected in the Benelux by registration with the Benelux Office for Intellectual Property (BOIP), or EU-wide through the EU Intellectual Property Office (EUIPO). Registration is valid for ten years and can be renewed. The first to file generally wins, so check the registers before you choose a name. A trade name (handelsnaam) is protected by use under the Trade Name Act (Handelsnaamwet); registration with the KvK alone does not give you exclusive rights to it.

Copyright in works made by your employees in the course of their work belongs to you as employer (Article 7 of the Copyright Act, Auteurswet). Works made by freelancers, designers or software developers remain theirs, unless the rights are transferred by a written deed (Article 2 of the Copyright Act). Paying the invoice is not enough.

X'jinbidel meta timpjega l-ewwel impjegat tiegħek?

From the first employee, Dutch employment law applies, and most of it is mandatory. The main points are the chain rule, the probationary period, continued payment during illness and the rules on dismissal.

Under Article 7:668a BW, the fourth fixed-term contract, or a chain lasting more than 36 months, becomes a permanent contract. A probationary period is not allowed in a contract of six months or less and is at most one month in a fixed-term contract shorter than two years (Article 7:652 BW). A non-compete clause in a fixed-term contract is only valid if the employer explains in writing which substantial business interests require it (Article 7:653 BW).

If an employee falls ill, you must continue to pay at least 70 per cent of the wage for up to 104 weeks (Article 7:629 BW) and work on reintegration. Many small employers insure this risk. A permanent employee can only be dismissed on a reasonable ground with permission from the Employee Insurance Agency (UWV) or a decision of the subdistrict court (kantonrechter), or with the employee’s consent, and is in principle entitled to a transition payment (transitievergoeding) under Article 7:673 BW.

X'għandek tiċċekkja bħala fundatur?

Use this list before you sign your first customer contract.

• Does your legal form match the financial risk of your business?
• Is the business registered with the KvK within one week of starting?
• Are your general terms and conditions sent with every quotation?
• With co-founders: is there a signed shareholders’ agreement covering departure, deadlock and share transfers?
• Is your trade mark registered with the BOIP or EUIPO, and have freelancers assigned their rights by deed?

What should you check as a new employer?

Use this list before your first employee starts.

• Are you registered with the Belastingdienst as an employer for payroll taxes?
• Does the employment contract meet the limits on probation and non-compete clauses in Articles 7:652 and 7:653 BW?
• Does a collective labour agreement (cao) apply to your sector?
• Is the hourly wage at least the statutory minimum wage?
• Have you insured or budgeted for up to two years of continued pay during illness?

What can we do for you with business law?

We advise entrepreneurs on setting up and running their business in the Netherlands; our avukat korporattiv paġna tiddeskrivi dan ix-xogħol f'aktar dettall.

• We advise on the choice of legal form and prepare the incorporation of your BV with the civil-law notary.
• We draft your general terms and conditions and your shareholders’ agreement.
• We draft and review employment contracts, including probation and non-compete clauses.
• We review commercial contracts with customers, suppliers and freelancers, including IP assignments.
• We send letters of demand and handle disputes with customers, suppliers or co-founders.

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• A BV limits your liability, but directors remain liable for improper management, especially after late filing of the annual accounts.
• Register with the KvK from one week before to one week after the start of your business.
• General terms only bind your customer if you made them available before or when the contract was concluded.
• Register your trade mark early and get IP rights from freelancers assigned by written deed.
• Employment law is largely mandatory: the chain rule, probation limits and two years of pay during illness apply from the first employee.

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