In general, a supervisory board member fulfills four distinct roles:

1. The supervisor
2. The advisor
3. The employer
4. The ambassador

The statutory role of the supervisory board of a Dutch limited liability company (N.V. or B.V.) is defined in Article 2:140/2:250 paragraph 2 of the Dutch Civil Code (DCC). For a Dutch foundation (stichting) this is defined in Article 2:292a DCC. It involves supervising the management of the board and overseeing the overall course of affairs within the company/foundation and its affiliated organizations while also providing the board with guidance and advice. The employer role does not necessarily reside with the supervisory board (but often does), and the extent to which the ambassador role is expected or desired may vary depending on the context.

To effectively fulfill all four roles, supervisory board members must be well-informed. This requires access to all relevant information and documentation in order to maintain a comprehensive understanding of the company’s/foundation’s and the board’s performance and operations. In this regard, safeguarding the supervisory board member’s independence is of critical importance.

There are several key sources from which supervisory board members should receive information:

1. The board
2. External experts (e.g., the auditor)
3. Third parties (e.g., employees, clients, competitors)

The board will naturally be the primary source of information. It is important to note that the board must provide the supervisory board with adequate and proper information, enabling it to perform its tasks effectively. However, experience shows that this obligation alone does not always guarantee that supervisory board members are fully and accurately informed. Therefore, supervisory board members must take an active approach in identifying and requesting any additional information they consider necessary.

In addition to the board, supervisory board members may also obtain information from other sources, such as the company’s/foundation’s auditor or its employees. While seeking information through alternative channels is not inherently problematic, care must be taken to avoid any perception of undermining the board’s authority. As such, a properly functioning supervisory board that values a constructive and cooperative relationship with the management board will act transparently when gathering information from other sources. A value-adding and fruitful relationship between a supervisory board and the board is built on mutual trust and respect. Ensuring transparency in the process of acquiring information from non-board sources is therefore crucial.

Q.G.M advises a broad range of clients (private and limited liability companies, foundations, cooperatives) on (challenging) governance matters and the partners have extensive experience acting as (supervisory) board members. We regularly advise (supervisory) board members on legal as well as broader board room challenges.

Please feel free to reach out to Bianca Geuze-Draaijer, Paul Quist or one of the other corporate lawyers, should you wish to receive any further information.