De rol en positie van de raad van toezicht van de stichting

Abstract

The current Dutch law on foundations is almost identical to the first Act on Foundations, which was adopted in 1956. Nowadays, many foundations have installed a supervisory board in addition to the management board. Some foundations, such as subsidized healthcare institutions and housing institutions, are obliged (on the basis of sector rules) to install a supervisory board. Other foundations have voluntarily installed a supervisory board. For both the members of the obligatory supervisory board and the voluntary supervisory board it is important that their tasks, duties and authorities are clear. In my opinion, the basic legal tasks, duties and authorities of the supervisory should be included in Book 2 of the Dutch Civil Code under the special title regarding foundations. When performing their tasks, supervisory and managing directors of foundations must primarily focus on the realisation of the foundation’s objectives. It is superfluous and may even be confusing to mention in sector rules the public interest as a separate additional interest which managing and supervisory directors should take into account, because the relevant public or social interest is already included in the foundation's objectives. In my opinion, the supervisory board of each foundation must explicitly play a role in protecting the foundation's assets, which assets are legally tied to the foundation's objectives. My view is that the supervisory board must be involved in important decisions that can lead to a material change in the identity or character of the foundation or the foundation's assets. The supervisory board must have the means to counterbalance the power of the management board. The supervisory board should, by virtue of law, be given the authority to decide to suspend a managing director if the director violates the foundation's interest. In this way, the supervisory board has an instrument to use in the event that the managing director is making distributions which are contrary to the foundation's objectives. As the foundation does not have a general meeting, the supervisory board is in many cases not only the body that supervises the management board but also the body the management board is internally accountable to. The supervisory board of a foundation has a role and duty towards the members of the board itself as many foundations do not have an extra (third) body that supervises or monitors the supervisory board. For this reason, it is important to ensure the best possible composition of the supervisory board and to ensure that the supervisory board has a "self-cleaning" capacity. Moreover, it is important that the supervisory board periodically makes a self-evaluation of its performance. In my opinion, the supervisory board should, at the end of each financial year, draw up its own report. Finally the supervisory board should account for its supervision to the relevant stakeholders of the foundation.