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A shareholders' agreement is not legally mandatory: the law only requires articles of association for a BV, not a Shareholders' Agreement (SHA). Nevertheless, a shareholders' agreement is almost always advisable for two or more shareholders, because the articles of association only regulate the bare minimum and are public. Sensitive agreements regarding departure, dividends, sale, and disputes belong in a private SHA. Thus, not mandatory in the strict sense, but indispensable in practice. Below are what the law *does* require and when a SHA becomes factually necessary.
The short answer
- Legally required: no, only articles of association are required for a BV.
- In practice: almost always wise with multiple shareholders.
- Sole shareholder: in that case, a SHA is superfluous, as there is nothing to arrange mutually.
- Actually necessary: in the case of an investor, multiple founders, or a 50/50 ratio.
- Articles of Association: public and rigid; the SHA handles confidential customization.
What the law does require
The law requires notarial articles of association for the incorporation of a BV. These include, among other things, the types of shares, the board of directors, and the statutory blocking provision. The articles of association are publicly accessible via the Chamber of Commerce, and amendments can only be made through a notary. A shareholders' agreement is not listed as a requirement in the law; it is a voluntary, private agreement between shareholders.
That “not mandatory” only means that you have a valid BV without a SHA. It says nothing about whether it is wise to omit it.
Why a SHA is indispensable in practice
Without a SHA, you fall back on the statutory minimum and the public articles of association. This means no agreements on dividend policy, no good/bad leaver scheme, no tag and drag along, and no deadlock mechanism. Precisely the topics that make the difference in the event of departure, sale, or dispute are then not regulated. You fall back on the law, and that rarely turns out as shareholders intended.
Moreover, you specifically do not want certain parts of these agreements in the public articles of association. Who receives what price upon departure, or which shareholder has a veto right, is business-sensitive. A private SHA keeps that confidential.
When does a SHA actually become necessary?
- Multiple founders: as soon as you start with partners, you will want agreements regarding departure and control.
- 50/50 ratio: without a deadlock provision, the BV is inactive in the event of disagreement.
- Investor on board: they almost always demand a SHA with special rights.
- Different dividend preferences: one wants to distribute, the other reinvest.
- Active and passive shareholders: agreements regarding commitment and remuneration are then necessary.
The relationship between the articles of association and the SHA
The Articles of Association and the Shareholders' Agreement complement each other. The Articles of Association apply vis-à-vis the company and third parties; the Shareholders' Agreement governs the relationship between the shareholders themselves. If they contradict each other, the agreement generally applies between the parties, but the Articles of Association apply vis-à-vis the company. Therefore, both must be aligned. A Shareholders' Agreement that does not align with the Articles of Association creates uncertainty regarding what applies.
When you don't need a SHA
If you are the sole shareholder of your BV, a shareholders' agreement is superfluous: there is no one to make agreements with. An empty holding company without co-shareholders also gains nothing from it. As soon as a second shareholder joins, that changes immediately.
Practical example: an entrepreneur starts his BV alone and, rightly, does not have a SHA. Two years later, he brings a partner on board who buys 40% of the shares. From that moment on, a shareholders' agreement is no longer a luxury but a necessity, and it is best to draw one up immediately upon entry.
Honest recommendation
A Shareholder Shareholder Agreement (SHA) is not legally mandatory, but it is almost always advisable with two or more shareholders, and it is best drawn up at the time of incorporation or entry. You do not need a lawyer if you are the sole shareholder: in that case, there is nothing to arrange and the SHA is superfluous. In all other cases, the investment is far outweighed by the risk of an unprotected conflict. Have the agreement aligned with your articles of association.
Read more: the shareholders' agreement, a complete checklist and the costs.
Frequently Asked Questions
No. The law only requires notarized articles of association for a BV, not a shareholders' agreement. You have a valid BV without a SHA. However, with two or more shareholders, a SHA is almost always advisable in practice.
In cases involving multiple founders, a 50/50 ownership structure, an investor on board, or differing dividend preferences, the SHA handles departure, control, sale, and disputes not covered by the articles of association. In effect, a SHA is necessary in such situations.
The articles of association regulate the statutory minimum and apply to the company and third parties; they are public. The SHA regulates confidential agreements between shareholders, such as dividend policy, leaver schemes, and disputes.
In that case, you do not need a shareholders' agreement; there is no one to make agreements with. As soon as a second shareholder joins, a SHA does become advisable. It is best to draw it up immediately upon entry.
In that case, you fall back on the law and the articles of association. Without a deadlock provision, in a 50/50 ownership structure, no one can force a decision and the business comes to a standstill, with a buyout or inquiry procedure before the court as the only way out.
Yes. In principle, the agreement applies between the parties, but the articles of association apply to the company and third parties. A contradiction creates uncertainty. Ensure both are aligned when drafting.
Yes, that happens almost always. An investor wants to establish special rights, such as a liquidation preference, anti-dilution, and veto rights. In that case, a shareholders' agreement is a condition for the investment.
