21 Adjusting

A preliminary question not touched on by the legislator is whether adjusting a bonus will fail to occur because the authority to adjust is not clear or because a unilateral adjustment of the bonus is seldom honoured. In my opinion, the ‘problem’ highlighted here is a result of the high threshold that must be crossed before an adjustment is justified. By staying in line with the strict measure in Art. 6:248.2 DCC, the chances of appealing successfully on the basis of Art. 2.135.6 DCC are virtually non-existent. Naturally it is up to the courts to actually interpret Art. 2: 135.6 DCC. The hope that a judge will in broad terms decide that the payment of a bonus based on reasonableness and fairness is unacceptable is in my view a vain hope. The expectation is thus that Art. 2:135.6 DCC, even if the supervisory boards are more aware of the powers coming to them, will not result in much change. On this basis, Art. 2:135.6 DCC in its current form has no right to exist alongside Art. 6:248.2 DCC in my view.