RETAINING AND DIGITALIZING RECORDS UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Annual accounts must be retained in paper form
Under Netherlands Antilles law there are several laws and regulations containing provisions relating to the retaining of records. Amongst others, such provisions can be found in the Civil Code, the Commercial Code, tax and social security legislation etc. With respect to specific banking activities, the National Ordinance on the Supervision of Bank and Credit Institutions and the National Ordinance Identification when rendering Financial Services are the most relevant regulations.
For example, the Netherlands Antilles Civil Code requires a company to keep its accounts and retain relevant data in such a manner that its obligations can be known at all times (article 3:15a subsection 1 Civil Code). The foregoing obligation to “keep and retain” has to be met in such a manner that the requirements for the company involved can be known and are met. Specific mention is made to “retain records and other data carriers”. In the official explanatory memorandum (‘Memorie van Toelichting’) it is explained that “other data carriers imply microfilm and the like as these data carriers are becoming more and more customary in the corporate sector”.
The Civil Code subsequently stipulates that it is permissible – for retaining purposes – to transfer data from the original data carrier to another data carrier (article 3:15a subsection 4 Civil Code). The explanatory memorandum states in this context that it is expected that in practice this transfer will involve a computerization of the paper file.
It is not stated what the consequences of the transfer are for the original data, more specifically whether or not they can be destroyed. The official explanatory memorandum, however, specifies that companies are permitted to retain only the transferred records. There is one important exception. Article 3:15a Civil Code explicitly rules out the possibility of transfer of the “paper” annual accounts of a company on another data carrier and subsequently destroying the paper form. These records have to be retained also in their paper form.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
