The Bottom Line
- If your company’s records are seized by authorities, you cannot simply ignore your statutory obligation to file annual accounts.
- Claiming “force majeure” (that it was impossible to comply) is not a valid defense if you have not first pursued available legal remedies, such as applying for an official exemption.
- Failure to proactively manage this situation can result in a criminal conviction for the company, including fines and court-ordered compliance.
The Details
The case revolved around a Dutch private limited company (B.V.) that failed to file its 2020 annual accounts within the legally required period of 12 months. The company’s defense seemed compelling: its entire administration had been seized by the Dutch Fiscal Information and Investigation Service (FIOD) in 2018 as part of a separate criminal investigation. The company argued that, without its records, it was impossible to prepare the accounts, thus constituting a classic case of force majeure. A lower court initially agreed with this line of reasoning and dismissed the charges.
However, the Public Prosecutor appealed the decision, bringing the matter before the Amsterdam Court of Appeal. The core legal question was whether the seizure of documents automatically absolved the company of its filing duties. The appellate court took a stricter view, focusing not on the impossibility of the task itself, but on the alternative actions the company could have taken. The court analyzed whether the company had exhausted all reasonable avenues to avoid violating the law.
The Court of Appeal overturned the lower court’s decision, finding the company guilty. The key to the ruling was that Dutch law provides a specific mechanism for companies in this exact situation: they can apply for a formal exemption from the filing obligation (under Article 2:394, para 5 of the Dutch Civil Code). The court reasoned that since the company failed to apply for this available exemption, it could not later claim that its non-compliance was unavoidable. The existence of this unused remedy undermined the force majeure defense. The company was sentenced to a suspended fine of €600 and ordered to file the overdue accounts within nine months.
Source
Gerechtshof Amsterdam
