About Nov. 8 as alleged publication date

The "publication deadline" of Nov. 8 is upon us again. In quotes because some confusion in practice can be seen here anyway. What is going on?

Publication according to the Chamber of Commerce

On the Chamber of Commerce website, you will find the following information when it comes to the deadline for publication:

If all shareholders are also directors, the signing of the financial statements by all directors and supervisory directors results in immediate adoption. In this case, the 2 months time for adoption expires. For a PLC, this means filing within 10 months and 8 days after the end of the fiscal year. Therefore, if the fiscal year is equal to the calendar year, the latest filing date is November 8 (10 months + 8 days).

This is incorrect. Why? Because 2 things are mixed up here, namely (1) the decision to prepare the financial statements and (2) the signing thereof. It is correct that the annual accounts must be drawn up within the stated period of 10 months. By the way, there is no sanction for exceeding that deadline, which there is for exceeding the publication deadline of 12 months, but that aside.

Formatting is a board decision

Back to the resolution to prepare financial statements. It is not clear from the law that a resolution to prepare financial statements must be signed by the board. Something else is that the board does have to sign the financial statements, but that too is not subject to a deadline tied to the deadline for preparing the financial statements. In short, the preparation decision and the signing of the financial statements are not the same thing. The law allows the decision to prepare the financial statements to be made within the 10-month deadline, but the time for the board to sign the financial statements is at a later time. For those who would not take that from me: this view can also be found in a recent publication Van de Sandt & Hijink, Handbook of Annual Accounts Law, Series due to the van der Heijden Institute 2020, section 5.2).

Deadline for signing

Regarding the deadline for signing, the law only prescribes that the financial statements signed by the management board (and, if applicable, supervisory board) must be made available for inspection at the company's office no later than the day of the notice of the general meeting of shareholders at which the adoption of the financial statements will be voted on. There is no deadline for the adoption of the financial statements either. However, there is a deadline for the obligation to publish, which as a general rule is 12 months after the end of the previous financial year (there are exceptions, for example, for institutions to which the Financial Supervision Act applies).

Preliminary financial statements?

I also do not think it is correct, as can be read on the website of the Chamber of Commerce, that if the annual accounts have not been prepared or adopted on time that then the "provisional annual accounts" must be filed. One can speak of the prepared, (if required) the audited and/or the adopted financial statements. There are no other flavors, although in the context of the engagement agreement between the company and an accountant with a compilation assignment one could still speak of 'compiled annual accounts', although these have no legal status but, in my opinion, can only be considered the product of the accountant's services (not to be confused with the accountant with an audit assignment). In short, there is no such thing as "provisional financial statements," at least in accounting law.