Amendments to the dispute resolution proceedings
The dispute resolution proceedings framework provides for proceedings that offer permanent relief, by way of a transfer of shares or voting rights, in the event that shareholders of a bv or nv cannot resolve their dispute themselves.
Changes in access to, and initiation of, dispute resolution proceedings
Under current law, the dispute resolution rules apply to all bvs and private nvs. In the bill, the dispute resolution rules will apply to all bvs and nvs, with the exception of bvs and nvs whose shares or depositary receipts for shares are traded on a stock exchange or through a multilateral trading facility anywhere in the world.
A second important change is that the dispute resolution proceedings will become so-called petition proceedings, which generally allow for more flexibility, and will be conducted in first instance before the Enterprise Chamber of the Court of Appeals in Amsterdam, a specialised court.
Changes to the expulsion proceedings
Under the current law, only acts performed in the capacity of shareholder can lead to the fulfilment of the criterion for expulsion (in Dutch: uitstoting). The bill provides that this ‘in capacity’-requirement will no longer apply, with the result that the court may also take into account the conduct of a shareholder in another capacity when weighing up the interests. However, in the case of usufructuaries or pledgees with voting rights, the rule remains that only their conduct in that capacity is relevant.
Introduction of inquiry proceedings
Shareholder disputes concerning Dutch companies often take the form of inquiry proceedings before a specialized court, the Enterprise Chamber in Amsterdam. Inquiry proceedings allow shareholders (above a statutory shareholding threshold) to request the Enterprise Chamber to (i) appoint experts to investigate the policy and affairs of the company and (ii) impose certain measures, including temporary immediate measures.
The Enterprise Chamber may order an inquiry if the applicant demonstrates that there are reasonable grounds to doubt the soundness and propriety of the company’s policy and affairs (e.g., deadlock situations, unacceptable conflicts of interest, disturbed relationships and unjustified use of takeover defenses). Based on the reported findings of the court-appointed investigators, the applicant may file a petition for a declaration of mismanagement. At any point in the inquiry proceedings, the Enterprise Chamber can be asked to impose (far-reaching) interim measures by way of injunctive relief (e.g. to order the execution of board resolutions, to appoint one or more independent directors to the board, to suspend a shareholder’s voting rights or to postpone a shareholder vote).
Clarification of access to the inquiry proceedings for large listed companies
Under current law, the requirements for access to the inquiry proceedings vary according to the size of the company’s share capital:
- For companies with an issued capital of up to EUR 22.5 million, the admissibility requirement is that the petitioners are holders of shares or depositary receipts for shares representing at least 10% of the issued capital or a nominal value of EUR 225,000.
- For companies with an issued capital of more than EUR 22.5 million, the admissibility requirement is that the petitioners are holders of shares or depositary receipts for shares representing at least 1% of the issued capital or, in case of a listed company, a market value of EUR 20 million.
In the case of listed companies with shares of a very low nominal value (e.g. one euro cent) and – as a result – an issued capital of less than EUR 22.5 million, the above requirements limit access to the inquiry proceedings.
The bill removes this inequality by providing that access to inquiry proceedings at listed companies is open to petitioners representing at least 1% of the company’s issued capital or having a market capitalisation of at least EUR 20 million.
Next steps
There is no planned date of entry into force. However, it is stated in the bill that consideration will be given to the pre-determined fixed dates for the implementation of new legislation, i.e. 1 January or 1 July of each year. Given the average length of legislative procedures, we estimate that the proposal will not enter into force until 1 July 2025. With regard to the transitional law, it provides that the law as it applied before the date of entry into force of the bill will continue to apply to all cases in which a claim has already been filed under the current law before the entry into force of this bill.
We will update this page in case of new developments.