New Corporate Governance Code

The new Corporate Governance Code has been in force since 1 January 2023. Changes mostly concern the ethical and social framework within which listed companies are to operate. What are the new standards for good business practice?

Corporate Governance Code

Since 2003, the Corporate Governance Code has been the standard for good governance of listed companies. In 2016, the Code was revised and now, 7 years later, an updated version of the Code has become effective. With reference to the chairperson of the revising committee, it is likely to become known as the Van der Meer Mohr Code.

The Code legally applies for Dutch listed companies, even if they have a primary listing on a foreign stock exchange. They are required to report in the annual report whether they have complied with the provisions of the Code and – if not – why they have deviated from the provisions of the Code, the so-called “comply or explain” principle.

In practice, the Code is also used as a standard for larger corporations. The changes are therefore significant for a larger group of companies. What are the most notable changes?

Sustainable long-term value creation

Was the focus of the previous version of the Code on long-term value creation, the new Code explicitly adds the criterion of sustainability. This means that the company policy needs to take into account its effect on people and the environment. The report has to demonstrate this by addressing the following issues:

• targets for sustainable long-term value creation;
• effects of products, services and activities on people and environment;
• how stakeholder interests were considered;
• actions taken;
• to what extent the targets were met;
• short-term and long-term developments.

In addition, it also includes balancing tax payments across the various countries in which the company operates.

Both supervisory board and shareholders need to recognize the interest of sustainable long-term value creation for the corporate strategy.

Diversity and inclusion

The company has a policy on diversity and inclusion (D&I). Diversity concerns variation in personal characteristics, inclusion the organizational culture, such as equal opportunities for every employee and social safety within the company. D&I targets must be specific, appropriate and ambitious. The D&I policy not only applies to the board and supervisory board but also to “a category of employees in managerial positions (“senior management”).”

The D&I policy must be accounted for in the corporate governance statement. New in this respect are:

• The plan to meet D&I targets.
• If relevant, insight into the inflow, progression and retention of employees. As this involves recording personal data relevant to demonstrating employee diversity, the provisions on processing personal data from the General Data Protection Regulation must be taken into account.
• Statement of the composition in terms of gender in the past financial year of:
  • board
  • supervisory board
  • executive committee
  • senior management

If one ore more targets have not been met for these four categories, the reasons are given.

Diversity

Board, supervisory board and executive committee (if any) need to have a degree of diversity appropriate to the company in terms of:

• expertise
• experience
• competencies
• other personal qualities
• sex or gender identity
• age
• nationality
• cultural or other background.

Inclusion and corporate culture

The board ensures that attention is paid to social safety in the company and reporting of actual or suspected misconduct or irregularities is discussable and possible. As the reporting of irregularities needs to become possible, this regulation goes beyond the scope of the recently adopted Whistleblower Protection Act. The inclusion policy also includes the measures to counteract transgressive behaviour of employees.

Dialogue with stakeholders

In formulating the policy, the board enters into a dialogue with relevant stakeholders. It draws up an outline policy for this dialogue, which is posted on the company’s website. It is up to the board to determine which stakeholders are relevant to which issue. The new Code pays particular attention to the works council as representative of employees and shareholders, in particular institutional shareholders.

Works council

Although the Code states in the beginning that, when properly applied, the Works Councils Act adequately safeguards employee participation, the new Code does come up with several additional provisions. For example, the board and the supervisory board are required to discuss company values (now also including social safety) and the company’s  D&I policy.

Shareholders

The new code pays more attention to contact with shareholders. For institutional investors in particular, there will be new rules. The starting point is that boards and shareholders are willing to engage in constructive dialogue. If a shareholder initiates a discussion with the company, the shareholder must disclose their full share position upon request. Institutional investors need to publish their voting record on important votes and also indicate why they did not agree to proposals of the board. Shareholders whose short position in the company is larger than their long position must abstain from voting.

Corporate lawyers

As the Code operates on the “comply or explain” principle, you need to account for any deviations from the Code in your annual report. The aim of the Code is, of course, that this will be needed as little as possible. Do you have any questions about the Corporate Governance Code? Do you want to amend your articles of association to comply with the Code? We will be happy to help you. Please contact us: