2.4.4 National law instead of EU rules

It is currently hard to predict how the final Council Regulation on a European private company will be designed. The proposed texts trigger many questions. One of the important questions will be in what way scope will be given to national law to fill gaps found in the regulation. Does Recital 14a of the compromise proposal mean that national legislators are only entitled to introduce appraisal rights applying to SPEs? Or does Recital 14a create scope to introduce all kinds of exit rights, comparable to those found throughout the EU applying to private limited companies? Does Recital 14a also allow the introduction of exit proceedings, like those forming part of the Dutch proceedings for the settlement of disputes? Taking into consideration that Recital 14a does not contain any limitation with respect to the right of withdrawal, it seems that the first question can be answered in the negative and the last two questions in the positive. Time will tell how the SPE will be shaped, but hopefully the European legislator and national legislators will take care of a significant number of matters that up to now have remained unclear.

In my opinion, the choice of a limited list of situations in which shareholders are allowed to exit the company is certainly not the most desirable solution. As will be revealed later on in this study, a majority shareholder may oppress the minority shareholder in many ways. I favour the introduction of exit proceedings with an open standard, whereas it is difficult — if not impossible — to define all situations in which minority oppression may occur. On the other hand, I admit that the indication of certain oppressive situations in a regulation may help the minority shareholder in forcing an exit. An oppression remedy and appraisal rights may complete each other well. As will be elaborated in this study, in addition to exit proceedings and appraisal right, a limited winding-up remedy is recommend as well.