The articles of association may further contain that the holders of profit certificates may appoint a member of the supervisory board (except for two-tier companies). It is also possible to grant the right to attend and speak at the general meeting, but the voting rights in the general meeting cannot be allocated to the holders of profit certificates. Holders of profit certificates do not form a separate corporate body and it is therefore not possible to grant them any binding instruction within the articles of association.
However, there are also opinions in the literature that assume that a statutory basis is not required for the issue of profit certificates. This opinion (also) relies on the provisions of article 2:216 of the Dutch Civil Code. Based on this, it would be sufficient to define in the articles of association that shareholders may dispose on the profit. It is not necessary to explicitly state that profit certificates can be issued. Then a payment to a holder of profit certificates can take place without the need for a statutory exception to the statutory regulation.
It is advisable to assign a statutory basis to the issue of profit certificates. It is sufficient to simply include that profit certificates can be issued. It is advisable to include a more extensive statutory regulation, so that the holders of profit certificates are not entirely dependent on the decisions made within the company. To strengthen the position of profit certificate holders, for example, a provision may be included in the articles of association that requires that with each profit distribution the holders of profit certificates communicate herein as if they were shareholders. It is also possible under certain conditions to grant the profit certificate holder determined participation under the articles of association.