OUT-LAW ANALYSIS 13 min. read
12 Oct 2026, 3:10 pm
The EU Inc. proposal raises risks of regulatory arbitrage, prompts questions over its interaction with existing Dutch law, and boasts few benefits that are not already available via an existing corporate vehicle that is commonly used by global companies for their Dutch operations.
These factors mean we expect to see limited uptake of the EU Inc. company form in the Netherlands.
The EU Inc. regime, proposed by the European Commission earlier this year, is still subject to agreement by EU lawmakers. However, if it is enacted as proposed, it would introduce a new corporate legal framework that companies will be able to opt into – allowing them to set up in an EU country and operate across the entire trading bloc in accordance with that single ‘28th corporate regime’, rather than navigate 27 different national frameworks as they need to do so currently.
The closest equivalent domestic company form to the proposed EU Inc. structure is the Dutch private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) (B.V.) The B.V. is the dominant corporate vehicle for private business and is in many ways similar to the EU Inc. as there is no minimum share capital requirement and adaptable governance and share structures.
As the Dutch B.V. is already quite flexible and relatively easy and quick to incorporate, the EU Inc. does not necessarily provide substantial benefits for primary Dutch operations. In addition, the Dutch B.V. is a very well-known and commonly used vehicle globally. That said, as the Netherlands is one of Europe's most significant hubs for innovative start-ups, uptake is expected among entrepreneurial founders for whom a single European legal form could offer meaningful operational simplification, avoiding multiple national subsidiaries, and reduction of notarial costs.
Technology start-ups and scale-ups with pan-European growth ambitions, particularly those seeking to access multiple EU markets from a single legal entity, are among the types of Dutch businesses that could benefit from being incorporated as an EU Inc. Likewise, venture capital backed companies that require a standardised, investor-familiar structure across jurisdictions and SMEs expanding beyond the Netherlands for the first time and wishing to avoid the cost and complexity of establishing multiple national subsidiaries would also be among those most likely to consider setting up as an EU Inc.
However, take up of previous European company forms, such as the European public limited company (SE) and the European cooperative entity (SCE), has been low, so it will be interesting to see whether things change with EU Inc.
Incorporation of a B.V. requires a notarial deed of incorporation (akte van oprichting), containing the articles of association (statuten), to be executed by a Dutch civil-law notary (notaris) before whom the incorporator(s) appear. The company exists as a legal entity from the moment the notarial deed is executed. Following execution, the company must be registered in the Trade Register of the Chamber of Commerce. In contrast EU Inc. is expected to permit online incorporation without the involvement of a notary, which represents a significant deviation from the Dutch incorporation process.
In addition, as part of the incorporation process and verification of the identity of founders, legalised and notarised identification documents may also be required under Dutch law. EU Inc. is expected to permit fully online, notary-free incorporation, which would represent a significant procedural departure from Dutch law in this regard.
In terms of timeframes for incorporation, there is not much difference.
A B.V. can typically be incorporated within a few business days once all documentation is in order, depending on the complexity of the articles of association. Expedited incorporation is also possible (same day) where a standard structure is adopted.
The EU Inc. target of 48 hours is broadly comparable to Dutch practice for straightforward structures. However, the absence of a notarial requirement under EU Inc. could make it marginally faster and cheaper for basic incorporations.
Other formalities required under Dutch law could also be avoided by companies that choose EU Inc.
For example, amendments to the articles of association of a Dutch B.V. require a notarial deed to be executed by a notary. From the EU proposal, it seems as if the articles of association of an EU Inc. would not require such a formal process and it is further proposed that the board of directors may make editorial changes of non-substantive nature to the articles of association without the need to call a general meeting to obtain formal agreement to such changes.
There are, however, no material differences in capital requirements or capital maintenance rules between the existing Dutch regime and that proposed for EU Inc.
Dutch law imposes no material minimum paid-up share capital requirement for a B.V. The minimum capital amounts to €0.01, which may be paid up following incorporation. This aligns closely with the expected approach under EU Inc. A difference will be that the EU Inc. can have shares without a nominal value.
With respect to capital maintenance, the traditional balance-sheet test has already been replaced under Dutch law with a liquidity/solvency test. In that respect, the board of directors must approve any distribution and confirm at the time of distribution that the company will be able to continue to meet its payment obligations for at least 12 months thereafter. Directors who approve a distribution in breach of this test are personally jointly and severally liable to repay the shortfall to the company if they knew or ought to have known that the company could not continue to pay its debts following the distribution. Shareholders who received the distribution in bad faith are also required to repay the amount so received.
EU Inc. is expected to adopt a similar solvency-based approach to distributions rather than a traditional capital maintenance model, which would align with existing Dutch law.
There are some differences in shareholder protections under Dutch law relative to what is proposed under the EU Inc. regime.
Under Dutch law there is a scheme that provides shareholders with a practical and efficient way to address conflicts. Shareholders representing at least one-third of the company’s capital can ask the Enterprise Chamber to force the departure of a shareholder whose conduct seriously harms the company (exit rights). The EU Inc. proposal only includes a similar mechanism for the shareholder who has been seriously harmed – allowing the shareholder to apply to a competent court to force the other shareholders to acquire its shares (jointly and severally) if the court finds that the company’s affairs are being or have been conducted in a manner oppressive to the shareholder.
Both the EU Inc. proposal and Dutch corporate law adopt equal treatment of shareholders as a default principle, but with different legal foundations and degrees of flexibility.
Under the EU Inc. proposal, all shares would carry equal rights and obligations unless the articles of association provide otherwise, and shareholders in the same position must be afforded equal treatment – a principle intended to be expressly codified in the EU regulation itself. Dutch law achieves a similar result through the broader standard of reasonableness and fairness under Article 2:8 BW, which requires all persons involved in a legal entity to behave towards one another in accordance with those standards, rather than through an express equal treatment provision.
Under the EU Inc. proposal, amendments to the articles of association require a two-thirds qualified majority of votes cast at a general meeting, with the express consent of any shareholder whose financial commitments or liability would be increased. Beyond the voting threshold, no detailed procedural mechanics for amendment meetings are prescribed. Instead, it is proposed that amendments be subject to preventive administrative, judicial, or notarial control as determined by the member state of registration.
This contrasts materially with Dutch law, under which amendments to the articles of association of a B.V. must be effected by notarial deed, meaning that a notary reviews and authenticates every amendment before it takes legal effect. The notarial process provides an important additional layer of protection: the notary is required to verify that the proposed amendment is lawful, does not conflict with mandatory provisions of Dutch law, and satisfies the formal requirements of the articles themselves, providing independent scrutiny that protects both shareholders and third parties.
There are also differences in creditor protections.
Under the EU Inc. proposal, it is proposed that a capital reduction requires the board certifying in a written statement signed by all directors that the balance sheet and solvency tests are satisfied following the reduction, accompanied by a report from an independently appointed expert confirming that the expert is not aware of anything to indicate the statement is unreasonable. This requirement for an independent report would add, rather than reduce, costs and is not required under equivalent Dutch law.
Under the EU Inc. proposal, shares have no nominal value by default unless the articles of association provide otherwise. Under Dutch law, shares in a B.V. must carry a fixed nominal value and cannot be issued below that value. This requirement of a nominal value has traditionally operated as a baseline creditor protection by ensuring that some minimum consideration enters the company on each share issuance. The minimum nominal value of a share in a B.V. is, however, one euro cent, so in practice the protection for creditors is still limited.
There are other protections in Dutch law that would not apply to an EU Inc.
Under Dutch law, a civil-law notary plays a mandatory central role in major corporate transactions – including incorporation, amendment of the articles of association, and share transfer. In doing so, the notary provides an important layer of independent protection that the EU Inc. framework does not replicate.
The notary is required to verify the identity of the client and ultimate beneficial owners under Dutch anti-money laundering (AML) legislation, report suspicious transactions, and confirm that the transaction complies with all mandatory provisions of Dutch law before it can proceed, providing an independent AML gateway and legal quality control mechanism that operates at the transaction level.
The EU Inc. proposal, by contrast, would permit incorporation, amendment of articles and share transfer to be completed fully online without mandatory notarial involvement, and leaves it to the member state of registration to determine what form of preventive control applies. The EU Inc. proposal would further expressly prohibit member states from imposing any additional formalities, including the requirement for a notarial deed, for the transfer to be legally valid. This means that where notarial control is not required by the member state of registration, the know-your-customer (KYC) verification, independent legal review, and third-party certainty ordinarily provided by the Dutch notarial process fall away entirely, creating a potential gap in both AML compliance and legal certainty that is of particular concern.
Dutch law requires large companies – those meeting certain thresholds of capital, turnover, and headcount for three consecutive years – to establish a supervisory board (raad van commissarissen) with prescribed powers, including the right to appoint and dismiss managing directors and to approve certain strategic decisions. It is highly unlikely that this Dutch-specific mandatory governance requirement would apply to EU Inc. entities, even those operating primarily in the Netherlands. This represents a material potential gap for large companies.
Although consultation rights under the Wet op de Ondernemingsraden (WOR) arise from employment law and would likely continue to apply to Dutch-based employees regardless of corporate form, the interaction between EU Inc.'s proposed employee involvement framework and Dutch co-determination rights requires careful analysis.
Under Dutch law, directors of a B.V. owe duties to the company and must act in the corporate interest (vennootschappelijk belang), which is broadly interpreted to include the interests of shareholders, employees, creditors, and other stakeholders – not simply shareholders alone. Directors are also subject to a duty of care and must exercise the skill and diligence of a reasonably competent director.
EU Inc. is expected to introduce harmonised directors' duties at a European level. The precise formulation remains uncertain, but the proposal is likely to include loyalty, care, and conflict-of-interest provisions. Whether these will capture the breadth of the Dutch concept of vennootschappelijk belang – including the explicit consideration of creditor and employee interests – is unclear.
Several Dutch liability provisions are likely to continue to apply regardless of the corporate form, particularly where the EU Inc. entity has its real seat, employees, or creditors in the Netherlands. These include:
The EU Inc. proposal envisages two distinct winding-up mechanisms: a fast-track liquidation procedure for solvent companies with no assets or liabilities, and a simplified winding-up procedure for insolvent innovative startups. Both would operate alongside, rather than in place of, existing national insolvency law. Our understanding is that where neither EU Inc. procedure is available or applicable, the standard national insolvency framework continues to govern, meaning that Dutch law – including the bankruptcy procedure under the Bankruptcy Act (Faillissementswet) and, where applicable, the WHOA pre-insolvency restructuring mechanism – will remain relevant for EU Inc. entities with their centre of main interests (COMI) in the Netherlands.
The interaction between the EU Inc. framework and Dutch national insolvency law is further complicated by the fact that jurisdiction over insolvency proceedings is determined by COMI, meaning that an EU Inc. registered in another member state may nonetheless be subject to Dutch insolvency proceedings and Dutch director liability provisions if its actual centre of management and operations is in the Netherlands.
In practical terms, the EU Inc. fast-track liquidation procedure is broadly comparable to the Dutch turbo liquidation procedure, though it affords creditors stronger procedural protections through a formal 30-day pre-removal opposition window and a mandatory tax clearance procedure. These are safeguards that do not exist under the current Dutch turbo liquidation regime.
There are also some insolvency-related concerns arising from the EU Inc. proposal. These include:
Some Dutch insolvency rules are expected to remain relevant under the EU Inc. regime. These include:
Overall, the EU Inc. form, as proposed, is unlikely to offer material advantages over the existing B.V. in the Netherlands – the Dutch B.V. is already a flexible and efficient private company form and well known and frequently used by businesses.
Notwithstanding the above, the introduction of EU Inc. would have a number of implications for the domestic company law regime.
First, the mandatory notarial deed is a cornerstone of Dutch company incorporation law. Its removal under EU Inc. would represent the most structurally significant procedural departure, reducing costs and friction but also removing an important quality and compliance check.
A second significant change would be the abolition of nominal value of shares. Under Dutch law, shares in a B.V. must carry a fixed nominal value and cannot be issued below that value – a requirement that has traditionally served as a baseline creditor protection. The EU Inc. proposal would permit shares without nominal value by default, representing a departure from this established principle of Dutch company law.
The interaction with the WHOA and Dutch insolvency regime could potentially be significant too. The Netherlands has invested significantly in developing a modern pre-insolvency restructuring framework. The relationship between EU Inc.'s corporate framework and the WHOA – and Dutch insolvency proceedings more broadly – will require careful legislative and judicial development to avoid uncertainty and gaps.
There are some risks and uncertainties too, including around regulatory arbitrage given the EU Inc. proposal provides scope to register an EU Inc. company in a less regulated member state whilst conducting business primarily in the Netherlands.
The delimitation between EU Inc.'s harmonised corporate law rules and applicable national law, in areas such as director liability, employee participation, creditor protection, and insolvency, is also likely to generate significant legal uncertainty in the short to medium term, pending judicial clarification.
While the EU Inc. proposal is unlikely to displace the Dutch B.V. as the preferred corporate form for domestic operations, it will nonetheless require the Netherlands to navigate a complex interplay between harmonised European rules and established national protections. The coming months and years will be critical in shaping how the EU Inc. framework interacts with Dutch law in practice. Much will depend on the final form of the regulation and the extent to which national protections – particularly in the areas of notarial control, insolvency, and creditor protection – are preserved or adapted.
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