Drafting proper minutes for the supervisory board

Minutes of supervisory board meetings are an important source of evidence in liability proceedings against supervisory directors, inquiry proceedings and bankruptcy investigations by trustees, it is important that minutes are drafted with proper care and give a fair and true reflection of the meeting.

The primary duty of the supervisory board is to supervise the policy of the management board and the general affairs of the company and its business. It is also the duty of the supervisory board to assess in advance whether the proposed strategy policy is desirable and feasible, as well as to monitor the results of that policy during its implementation.

The minutes of supervisory board meetings can play an important role in liability proceedings. Proper minutes should reflect the division of tasks amongst the relevant considerations in relation to decision-making.

Relevant considerations to be reflected in the minutes:

  1. Timely and complete information
    Members of the supervisory board should receive information about (the background to) agenda items in writing and on time. In recent years, it has become increasingly clear that the supervisory board has a “duty to actively request/collect relevant important information”. Requests for information, any conditions imposed on approved resolutions and the follow-up (or lack thereof!) must be accurately recorded.
  2. Form requirements
    Quorums, filing obligations, 403-declarations, (supervisory) board regulations, certain rights of the works council or other bodies within the company, conflict of interest regulations, etc. are relevant and need to be adhered to. It is essential to check whether the decision-making process has always taken place with due observance of the above and that this check is reflected in the minutes.
  3. Scenario analysis
    When making important decisions, it is important to always look at the scenario’s that could occur if the management’s assumptions turn out to be incorrect (so f.e. ask for a worst-case analysis). SB members should always take a critical look at the most sombre scenarios.
  4. The auditor
    Within the framework of the activities relating to the annual accounts, the accountant will always require access to the minutes. In particular, the accountant will have to form an opinion on whether or not adequate control mechanisms are in place and will study the minutes in that context as well, assessing the role and the functioning of the supervisory board.
  5. Consultants
    If the supervisory board does not have certain expertise within its own group of people, it is important that expert assistance is obtained (in good time). If expert advice is obtained and the supervisory board takes this into account in its decision-making, this should be referred to in the minutes.
  6. Style
    Give a brief, factual account of what was discussed at the meeting. Avoid long quotations from individual members, but it is possible to indicate which member took which position regarding a certain item. Conclude with clear conclusions and, in the case of decisions, refer to the relevant legal basis (e.g. approval regulation in the articles of association regulations).
  7. Distinction between individual members and the supervisory board as a college
    It is not necessary to state who made which proposal, took which position or filed which motion. It is only necessary to formally state whether or not a decision has been made.
  8. Dissenting opinion
    It is up to the individual management board member or supervisory board member to have a dissenting opinion or vote recorded in the minutes, which, however, will play only a limited role in the possibility of dispensation of personal liability.
  9. Conflict of interest
    If a supervisory board member did not participate in a deliberation and decision-making process due to a (direct or indirect) conflict of interest (without describing the conflict of interest in detail), this must be explicitly stated in the minutes of the meeting.

A more detailed brochure on this subject can be downloaded here.

Over de auteur(s)

Ep Hannema | Partner Windt Le Grand Leeuwenburgh
Irene Tax | Partner Windt Le Grand Leeuwenburgh