De aansprakelijkheid op grond van een 403-verklaring

Abstract

Pursuant to section 2:403 of the Dutch Civil Code a group company can, under certain conditions, avail itself of a financial statements exemption. The group company is then, among other things, exempt from the obligation to publish the financial statements. One of the conditions to be met for the group company to avail itself of the financial statements exemption is that the parent company has declared that it has assumed liability for the debts arising from the legal acts of the group company; the so called 403-declaration. If a group company avails itself of the financial statements exemption, its creditors cannot consult the financial statements to assess the risk level that their claim will not (fully) be satisfied. The liability of the parent company is part of the compensation that creditors receive for not being able to consult the financial statements of the group company. This compensates a creditor for the fact that he has a claim on a debtor – the group company – whose financial statements he cannot inspect, with an additional claim on another debtor – the parent company – whose financial statements he can inspect. This research gives an answer to the question how the liability of the parent company should be interpreted in the light of its function in compensating creditors for not being able to inspect the financial statements of the group company. The research includes – among other subjects – the scope of the liability, the effect of a merger or demerger of the parent company or the group company on the liability under the 403-declaration, the withdrawal of the declaration of liability by the parent company, and terminating the remaining liability after a withdrawal. This has led to various recommendations for the judiciary and the legislator to rule differently with respect to the current law, or to change it.