* For the sake of transparency, it is noted that Martin van Olffen is legal counsel to Rabobank and was involved in the reorganization described in this chapter and Gerard van Solinge is a member of the supervisory board of one the local banks (i.e. Rabobank Rijk van Nijmegen).
2 For a study on cooperative banking during the crisis of the 1920s see, Cristopher L Colvin, ‘Banking on a Religious Divide: Accounting for the success of the Netherlands’ Raiffeissen Cooperatives in the Crisis of the 1920s’, The Journal of Economic History (2017), 77, 866–919.
3 However, earlier archetypes were found in the form of dairy cooperatives in the valleys of the Pyrenees. See Stefan Naubauer, ‘Predecessors and Perpetrators of Cooperative Systems in Europe’, Lex ET Scientia International Journal (2013), 20, 40.
5 Antonio Fici, ‘The Essential Role of Cooperative Law’, The Dovenschmidt Quarterly (2014), 147, 150.
6 In other parts of the world, for instance the United States, the cooperative enterprise by agricultural and industrial workers also goes back for many centuries. See John C Scatterfield, ‘The Cooperative in our Free Enterprise System’, Mississippi Law Journal (1961), 33 14. The immigrants who came to the United States, brought the Rochdale Principles with them, see Elaine Waterhouse, ‘Cooperatives: The First Social Enterprise’, DePaul Law Review (2017), 66, 1013, 1020.
7 For an overview, see Naubauer, n 3, 40.
10 Ger J H van der Sangen, ‘How to Regulate Cooperatives in the EU’, The Dovenschmidt Quarterly (2014) 131, 139.
11 Heribert Hirte, ‘Das neue Genossenschaftsrecht (Teil I)’, Deutsches Steuerrecht (2007), 2167.
12 Translated: The Credit Unions as a remedy for the distress of the rural population and also for the urban manufacturers and workers.
13 Translated: self-help, self-governance, and self-responsibility.
15 See Heinrich Heine’s famous words: ‘If the world would perish, I will move to Holland, where everything happens fifty years later.’
16 ‘Ra-’ stands for Raiffeissen, and ‘-bo’ stands for Boerenleenbank. The abbreviation ‘UA’ stands for: uitgesloten aansprakelijkheid (excluded liability). This implies that members cannot be held liable for the deficit of Rabobank in case of dissolution (see Section IV.B).
17 See Rabobank’s mission statement:‘Rabobank wants to make a substantial contribution to welfare and prosperity in the Netherlands and to feeding to world sustainably.’
18 See Ryan van Hout, ‘Cooperative Banks: The Strength of Impact Factors on the Cooperative Value Orientation and their Effects on the Behavior of Cooperative Members’ (PhD thesis, Open University) 2017.
19 See Article 2:53, para 1 of DCC.
20 See Van der Sangen, n 10, 135ff.
21 In 2017, there were more than 8,000 cooperatives registered with the trade register.
22 See Article 2:53a of DCC jo. Article 2:39 of DCC.
23 Henry B Hansmann, The Ownership of Enterprise, Harvard University Press, 1996, 17ff.
24 Article 2:53, para 1 DCC.
26 ibid, paras 3 and 4 of DCC.
27 The possibility to provide a maximum of 1/3 of voting rights in the members meeting to non-members as allowed under Article 2:38, para 3 of DCC is not discussed here.
28 See Article 2:56, para 1 of DCC.
29 A cooperative qualifies as ‘large’ if the cooperative has an equity of at least 16 million euros, the cooperative (or an independent entity) has established a works council as required by law, and the cooperative, together with its independent entities, normally employs 100 or more persons. The qualifying cooperative should have been registered with the trade register to that effect for three consecutive years, before it has to amend its articles of association. See Article 2:63b and 2:63c of DCC. To complicate things further, the mandatory two-tier system may also be adopted by non-qualifying cooperatives on a voluntary basis with immediate effect, see Article 2:63e of DCC.
30 Article 2:63f, para 2 and 4 of DCC.
32 Maarten Muller (ed), Corporate Law in the Netherlands, Wolters Kluwer, 2013, 111–12. See further on the German codetermination and board composition, Paul Davies and Klaus Hopt, Chapter 6, this volume.
33 See the envisaged Article 2:63k of DCC, as proposed by legislative document (Kamerstukken) 34491.
35 Article 2:53a jo. 2:37, para 2 of DCC.
36 On the restructuring of Rabobank in 2016, see also I P van den Heuvel, A van Breda, and B. Snijder-Kuipers, ‘Herziening governance Rabobank; succes voor de coöperatie’, Ondernemingsrecht 2017/5 and J M Groeneveld, ‘The road towards one cooperative Rabobank, publication of the Directorate Cooperative and Governance Affairs’, Rabobank (2016).
37 The obligations under the Rabobank Participatiesare not included in this programme.
38 The Rabobank Participaties are a so called Tier 1 instrument and are issued to a foundation against the issuance of depositary receipts for shares. These depositary receipts for shares were originally traded between members of the local banks and since 2014 listed on Euronext.
39 For a more detailed description of the possibilities under Dutch law to create various layers of membership influence in associations, cooperatives, and mutual, see G J C Rensen, Mr C Assers Handleiding tot de beoefening van het Nederlands Burgerlijk Recht. 2. Rechtspersonenrecht. Deel II. Overige rechtspersonen. Vereniging, coöperatie, onderlinge waarborgmaatschappij, stichting, kerkgenootschap en Europese rechtsvormen, Wolters Kluwer 2017 (Asser/Rensen 2-III), nr 186ff.
40 See A L G A Stille, ‘De afdeling in het verenigingsrecht’, (PhD thesis University of Amsterdam), 1986 and Asser/Rensen 2-III, n 40, nr 187.
41 See, for more information on this regime for cooperatives, Asser/Rensen 2-III, n 40, nr 261ff.
42 Article 2:105 and 3:111 Wft.
48 This process included the filing of approximately 1,200 proxies and 580 branches with the trade register.
49 See, on mandates under Dutch law, J G Groeneveld-Louwerse, ‘Publieke wenselijkheid of private beleidsvrijheid’ (PhD thesis Free University Amsterdam), 2004.
50 Rabobank makes use of the possibility of having a members meeting consisting of representatives as set forth in Article 2:39, para 1 of DCC.
51 This requirement can be included in the articles of association under the large company regime; Article 2:63h of DCC and underscores the influence of members on the organization.
52 Article 2:53a DCC jo. Article 2:37, para 2, first sentence of DCC.
53 There has been a discussion in Dutch legal literature on this scheme. See P J Dortmond, ‘Rabobank Nederland en het structuurregime’, Ondernemingsrecht 2002/11; M E Engelaar, ‘Reactie op: Rabobank Nederland en het structuurregime’, Ondernemingsrecht 2002/14; Gerard van Solinge, ‘Benoeming van bestuurders en commissarissen van een structuurcoöperatie’, Ondernemingsrecht 2012/78.
54 Chapter 3A, Article 1 Wft.
55 Guido Ferrarini, ‘Understanding the Role of Corporate Governance in Financial Institutions: A Research Agenda’, Ondernemingsrecht 2017/13 (72-83), 75. Also published as ECGI Law Working Paper 347/2017. See also Guido Ferrarini, Chapter 11, this volume.
56 See Paolo Giudici, Chapter 21, this volume.