The main rule with regard to a public limited liability company (N.V.) or private limited liability company (B.V.) is that the board is authorised to represent it; the representative power is in addition vested in the directors, individually or jointly. In addition to the directors, also holders of a power of attorney may be granted representative authority. Such representative authority may be described explicitly in the articles of association, but the powers and limits are usually determined and laid down at the time of appointment of the holder of the power of attorney.
We often see in practice that the holder of the power of attorney is registered at the Chamber of Commerce only by means of form 13, in which form it can be specified whether the power of attorney is full or limited.
If the power of attorney is limited, it can be specified in the form how it is limited, i.e. in terms of money (up to a certain amount) or in terms of legal act (in which case several answers are possible, such as purchase/sales/financial, etc). If we are involved in drawing up a power of attorney, we ask the company in case of a limitation in terms of money, whether the amount is limited in a certain way, for example per month, per quarter or per transaction. After all, three times €100,000 on one day or in one transaction is (clearly?) not desired, but where is the limit and how attentive is the other party or the company itself if the holder of the power of attorney is testing the limits, deliberately or otherwise?
My colleague Karen Verkerk wrote in the past that it is not enough to register the holder of the power of attorney only using form 13: after all, the holder of the power of attorney appointed by the board of the company. The board of directors takes a decision in which the powers and limits will have to be specified. So it is always advisable to clearly define the powers and the limits in the decision. The power to establish a mortgage must in addition be laid down in a notarial power of attorney (3:260 paragraph 3 Dutch Civil Code).
The term ‘full power of attorney’ in the form may also put the other party (or the board of the company) on the wrong track however: if the holder of the power of attorney has only been registered using form 13 and ‘full power of attorney’ has been ticked, this does not automatically mean that the holder of the power of attorney has power of disposal. Article 3:62 paragraph 2 Dutch Civil Code stipulates that it must be explicitly (‘in writing and unambiguously’) stated in the power of attorney that its holder is authorised to perform acts of disposal in the name of the company. For example, that the holder of the power of attorney is authorised to sign a notarial deed with regard to the sale and delivery of shares on behalf of the company may have been the intention of the board of directors, but is not sufficiently explicitly stated if only ‘full power of attorney’ is ticked in form 13!
We therefore prefer to register the holder of the power of attorney not only by means of form 13, but also by filing a copy of the decision with this form or by copying the exact wording of the signed decision in the form. After all, the excerpt states whether the power of attorney is full or limited, and only in the latter case will it be indicated that one should consult the trade register for information on limits. By filing the decision, it is ensured that the decision is always consulted. In this decision, the powers – whether or not including acts of disposal – and limits are described in detail.