Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.5.6
6.5.6 Capacity of shareholder
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS409630:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Asser/MaeijerNan Solinge & Nieuwe Weme 2-II* (2009), no. 709; Croiset van Uchelen (2007), p. 259; Bulten (2005), p. 46; Bulten (2007), p. 363. In older legal literature, some authors are dissenting: Sanders (1988), p. 252; Westbroek (1991), p. 28.
Parliamentary Papers II 2006/07, 31 058, no. 3 (MvT), p. 108: 'Er zij op gewezen dat gedragingen van mede-aandeelhouders die grond kunnen opleveren voor een uittredingsvordering niet per se gedragingen in die hoedanigheid behoeven te zijn.'
OK 22 October 1992, NJ 1993, 411 (Van Eyk), to. 4.8.: 'De strekking van art. 2:343 BW brengt (...) mede dat bij de toepassing van dit artikel niet alleen wordt gelet op gedragingen van de medeaandeelhouders die verband houden met hun aandeelhouderschap, maar op alle gedragingen, van welke aard dan ook, die leiden tot het ontstaan van de in art. 2:343 BW aangeduide toestand van benardheid.'
For a good example of conduct that is not of relevance in proceedings we can take a look across the border. This concerns the English case of Re J E Cade & Son Ltd, described in § 3.3.7.
Bundel NV en BV, p. IXy- Art. 336 — 1 (MvT); Repeated by the Minister of Justice in Parliamentary Papers II 2008/09, 31 058, no. 6 (Nota n.a.v. Verslag), p. 22-23.
In contrast to the expulsion proceedings, this could form a ground for an exit order, see § 6.5.9.4.
In a similar vein: Van Schilfgaarde/Winter (2009), no. 114; Asser/Maeijer/Van Solinge & Nieuwe Weme 2-II* (2009), no. 707.
Comparable to the exit proceedings, conduct of the shareholder that is not related to the company in any way, should not be of relevance in the expulsion proceedings.
In the exit proceedings, not only prejudicial conduct performed in the capacity of shareholder is relevant. Prejudicial conduct performed by the shareholder in any other capacity or by the company itself can also be relevant when assessing whether the continuation of a shareholding can no longer reasonably be expected. In other words, the conduct must be performed by the shareholder, but not necessarily in his capacity as a shareholder. All kinds of conduct of the co-shareholders or of the company may create a situation in which the continuation of a shareholding can no longer reasonably be expected. This liberal view on the qua shareholder requirement is confirmed in the legislative history, in case law and legal literature.1 In recent legislative history, the Minister of Justice held:
"One should notice that conduct of co-shareholders that may form ground for rewarding a claim under the exit proceedings, not necessarily need to be performed in that capacity."2
A similar view is taken by the OK in the exit proceedings case Van Eyk:
"The tenor of Art. 2:343 DCC entails (...) that when applying this article attention is not only paid to conduct of co-shareholders that is related to their capacity of shareholder, but to all conduct, of any nature whatsoever, which cause the state of oppression indicated in Art. 2:343 DCC."3
To give an example, setting up competing activities by co-shareholders may constitute a ground for rewarding a claim under the exit proceedings. In its nature, setting up competing activities cannot be performed in the capacity of shareholder. However, all shareholders of the company may suffer prejudice because of the competing activities.
Conduct of co-shareholders that does not relate to the situation of oppression within the company in any way, is not of relevance in the proceedings. For instance, if one of the shareholders in private capacity rents an apartment of another shareholder in private capacity and a dispute arises because the apartment is in bad repair, this conduct is not related to the company.4
The liberal view taken towards conduct that is relevant in the exit proceedings contrasts with the view of the legislator towards conduct that is relevant in the expulsion proceedings (Art. 2:336 DCC). As stated and reaffirmed in the legislative history, prejudicial acts performed by the shareholder only lead to expulsion, if the acts are performed in his capacity as a shareholder.5 Consequently, for example competing activities initiated by a shareholder may not lead to expulsion.6 I remark that this narrow interpretation of Art. 2:336 DCC does not follow from its literal wording.7 Although the expulsion proceedings fall outside the scope of this research, I take the opportunity to put forward that I do not favour the aforementioned view of the legislator. If conduct of a shareholder severely prejudices the interests of both the company and his co-shareholders, regardless in which capacity a shareholder acts, these co-shareholders have to be allowed to opt between either exit or expulsion.8