കോർപ്പറേറ്റ് താൽപ്പര്യവും ഓഹരി ഉടമകളുടെ ആവശ്യങ്ങളും തമ്മിലുള്ള വ്യത്യാസം: ഡച്ച് നിയമം എന്താണ് ആവശ്യപ്പെടുന്നത്

Under Dutch law, directors must act in the interest of the company and its business, not simply follow the shareholders who appointed them. Shareholders keep real powers through the general meeting and the Enterprise Chamber (Ondernemingskamer), but they cannot oblige the board to act against the company’s interest.

This article explains what the corporate interest (vennootschappelijk belang) means, which powers shareholders have, how the board may defend the company and where disputes end up. It applies to both the private limited company (B.V.) and the public limited company (N.V.).

What does the corporate interest mean?

Articles 2:129(5) and 2:239(5) of the Dutch Civil Code (BW) require directors of an N.V. and a B.V. to be guided by the interest of the company and the enterprise connected with it. That interest includes shareholder return, but also continuity, employees, creditors and long-term strategy.

The Supreme Court (Hoge Raad) set out the standard in its Cancun ruling of 4 April 2014 (ഇസിഎൽഐ:എൻഎൽ:എച്ച്ആർ:2014:797). Where the company runs a business, its interest is usually determined mainly by promoting the lasting success of that business. Directors must also take due care of the interests of everyone involved, and should not harm those interests unnecessarily or disproportionately.

The same ruling confirms that each director has this duty regardless of who appointed him. A director nominated by one shareholder does not represent that shareholder on the board.

Can shareholders give the board instructions?

In a B.V., yes, if the articles of association allow it, but the board does not have to follow an instruction that conflicts with the company’s interest (Article 2:239(4) BW). In an N.V., the articles can only provide for instructions on the general lines of policy (Article 2:129(4) BW).

In practice, conflicts often concern dividends. In a B.V., the general meeting decides on a distribution, but it has no effect without the board’s approval. The board must refuse if it knows or should reasonably foresee that the company will not be able to pay its debts afterwards (Article 2:216(2) BW). Directors who approve a distribution anyway can be personally liable for the shortfall towards the company (Article 2:216(3) BW).

A director who has a direct or indirect personal interest that conflicts with the company’s interest must not take part in the deliberation and decision-making (Articles 2:129(6) and 2:239(6) BW). For the general standard of proper performance and personal liability, see our article on ഡയറക്ടർമാർ വ്യക്തിപരമായി ബാധ്യസ്ഥരാകുമ്പോൾ പിന്നെ ഡയറക്ടർ ബോർഡിന്റെ പങ്ക്.

Which powers do shareholders have?

Shareholders exercise their influence mainly in the general meeting. The Civil Code gives them the following statutory rights:

• ഒരു മീറ്റിംഗ് വിളിച്ചുകൂട്ടുന്നു: shareholders holding at least one tenth of the issued capital can ask the board to convene a general meeting (Articles 2:110 and 2:220 BW). If the board does not, the interim relief judge can authorise them to convene it themselves (Articles 2:111 and 2:221 BW). The articles may set a lower threshold.
• കാര്യപരിപാടി ഇനങ്ങൾ: in an N.V., holders of at least 3% of the issued capital can put an item on the agenda if the request reaches the company at least 60 days before the meeting (Article 2:114a BW).
• വിവരം: the board must give the general meeting all information it requests, unless a compelling interest of the company opposes this (Articles 2:107(2) and 2:217(2) BW).
• Appointment and dismissal: in most companies the general meeting appoints, suspends and dismisses directors.
• അന്വേഷണം: shareholders who meet the thresholds of Article 2:346 BW, alone or together, can ask the Enterprise Chamber to order an inquiry.

What a minority shareholder can and cannot force is explained in our article on നെതർലാൻഡ്‌സിലെ ന്യൂനപക്ഷ ഓഹരി ഉടമകൾ.

How can the board protect the company against shareholder pressure?

Dutch companies may use protective measures, but only as a proportionate and usually temporary response to a concrete threat to the company’s interest. The board must be able to explain why the measure serves the company, not why it protects the board itself.

Common measures are:

• Priority shares (prioriteitsaandelen): give a small group, such as the founders or a foundation, special rights, for example to nominate directors or approve amendments to the articles.
• Depositary receipts (certificering): a foundation (stichting administratiekantoor, STAK) holds the shares and their voting rights, while investors receive depositary receipts with the economic rights.
• Preference shares: a protective foundation receives a call option on preference shares, which it can exercise to dilute a hostile shareholder temporarily.
• Loyalty voting: long-term shareholders receive extra votes. These structures are contested and are tested against the corporate interest and the position of minority shareholders.

Whether a measure is proportionate depends on the threat, the duration and whether shareholders can regain influence afterwards. A measure that makes the board permanently unaccountable will not survive review by the Enterprise Chamber.

എന്റർപ്രൈസ് ചേംബറിന് എന്തുചെയ്യാൻ കഴിയും?

എന്റർപ്രൈസ് ചേംബർ ഓഫ് ദി Amsterdam Court of Appeal is the specialist court for corporate disputes. In inquiry proceedings (enquêteprocedure), it can appoint investigators to examine the company’s policy and conduct.

During the proceedings, it can order immediate measures (Article 2:349a BW). If it finds mismanagement, it can impose measures under Article 2:356 BW, such as suspending or annulling board resolutions, suspending or dismissing directors, appointing temporary directors and transferring shares temporarily to an administrator.

Since 1 January 2025, the Act amending the dispute settlement scheme and clarifying the admissibility requirements of the inquiry procedure (Stb. 2024, 175) has also brought squeeze-out and withdrawal claims between shareholders (geschillenregeling) before the Enterprise Chamber, in a single instance and by petition. As a result, one specialist court now hears both inquiry cases and most shareholder deadlocks; see our article on the എൻ്റർപ്രൈസ് ചേംബർ.

Litigation is expensive and public. Many disputes are settled earlier through negotiation or mediation, sometimes on the basis of a buy-out mechanism in the shareholders’ agreement.

ഒരു ഡയറക്ടർ എന്ന നിലയിൽ നിങ്ങൾ എന്തൊക്കെ കാര്യങ്ങൾ പരിശോധിക്കണം?

• Record in the board minutes which interests you weighed and why the decision serves the company.
• Before approving a dividend, test whether the company can keep paying its due debts afterwards; in practice the board looks at least twelve months ahead.
• Check whether you have a conflict of interest and, if so, abstain from the decision.
• Check whether the articles allow shareholder instructions and whether an instruction conflicts with the company’s interest.
• Give the general meeting the information it asks for, unless a compelling company interest opposes it.

ഒരു ഓഹരി ഉടമ എന്ന നിലയിൽ നിങ്ങൾ എന്തൊക്കെ പരിശോധിക്കണം?

• Check which rights the articles and the shareholders’ agreement give you beyond the statutory minimum.
• Calculate whether you meet the thresholds for convening a meeting, an agenda item or an inquiry, alone or with others.
• Put your questions and proposals on record in the general meeting.
• Check whether a protective measure is temporary and proportionate to a real threat.
• Agree a deadlock and buy-out mechanism in the shareholders’ agreement before a conflict arises.

What can we do for you with a conflict between shareholders and the board?

നമ്മുടെ കോർപ്പറേറ്റ് അഭിഭാഷകർ advise directors, supervisory directors and shareholders of B.V.s and N.V.s. For the wider rules, see our article on the Dutch കോർപ്പറേറ്റ് ഗവേണൻസ് ഫ്രെയിംവർക്ക്.

• We assess whether a shareholder instruction or dividend proposal is compatible with the company’s interest.
• We prepare the board’s decision-making and minutes so that the weighing of interests is documented.
• We draft or amend the articles of association and the shareholders’ agreement, including deadlock and buy-out clauses.
• We prepare requests to convene a meeting or add agenda items, and represent you at the general meeting.
• We conduct inquiry proceedings and squeeze-out or withdrawal proceedings before the Enterprise Chamber.

ചുരുക്കം

• Directors of a B.V. and N.V. must act in the interest of the company and its business (Articles 2:239(5) and 2:129(5) BW).
• That interest is mainly about the lasting success of the business, with due care for all stakeholders (Cancun, ECLI:NL:HR:2014:797).
• Shareholders influence the company through the general meeting; in a B.V. the board may refuse instructions that conflict with the company’s interest.
• Protective measures must be proportionate and usually temporary.
• The Enterprise Chamber decides inquiry cases and, since 1 January 2025, squeeze-out and withdrawal disputes.

പതിവു ചോദ്യങ്ങൾ