2.8.2.1 Enforceability of desired conduct

legal norms in company law and securities law, enforceable through the courts;

private rules, such as rules established by, for instance, professional associations of accountants, which in some cases are enforceable through disciplinary courts and in other cases through ordinary courts;

private agreements with stock exchanges, such as rules of procedure applicable to companies that have concluded a listing agreement with a stock exchange. Acting in breach of such agreements may, for instance, lead to delisting, or to other contractual sanctions that the parties have agreed beforehand;

standards of conduct included in the business community's self-established codes of conduct, such as the Tabaksblat Code.

provisions that correspond with written or unwritten rules of law (for example: principle IV.2 stipulating that the general meeting appoints the external auditor, corresponds with article 2:393 paragraph 2 DCC). These provisions are definitely binding;

provisions that are contrary to written or unwritten rules of law (for example: best practice provision II.2.7 regarding the maximum severance pay for directors upon dismissal differs from Dutch labour law provi-sions;2 best practice provisions may also be contrary to the provisions of a company's Memorandum and Articles of Association). Such best practice provisions are non-binding until an amendment is made and/or provisions in the articles of association to the contrary are amended; and

provisions that neither correspond nor conflict with written or unwritten rules of law (for example: the recommendation to adopt a code of conduct as an internal risk management and control system and to publish this code on the company's website; best practice provision II.1.3 sub b.) The fact that such provisions are included in the Tabaksblat Code does not imply that they should be considered binding rules of law, albeit they may have some legal significance. They may - similar to what is stated above in section 2.8.1.1 on the enforceability of voluntarily adopted codes of conduct that contain standards of conduct regarding CSR - guide the court in its interpretation of certain open norms in the Dutch legal system.3 In this respect, the fact that the Tabaksblat Code is entrenched in law, and the question whether or not the company has stated in its annual report its intention to adhere to the Tabaksblat Code provisions are of importance. A company that has included such a statement, but subsequently acts contrary to these provisions, will have difficulty explaining why those (non-binding) provisions of the Tabaksblat Code should be without legal effect. On the other hand, it will not be easy for a shareholder to demonstrate to the court that the board of directors made an improper' decision, since the board of directors has to take a multiplicity of interests into account and not only the interest of the shareholders.4

adjust the remuneration policy for directors;

withdraw the instruction to the external auditor and award it to another auditor;5

refuse to adopt the annual accounts;6

use their right to place an item on the agenda of the shareholders meeting;7 dismiss members of the board of directors and/or the supervisory board; or

sell off their shares.