4.3.2.1 Did the general shareholders’ meeting grant discharge?

Of the 11 cases which have been coded, the court determined that the director was granted discharge from directors’ liability in 6 cases. In 5 cases, no discharge was granted to the defendant director (see Table 9 under ‘discharge provided’).

In the 5 cases in which the court denied that the director was granted discharge, the director was held liable. For instance, in Vereniging Schuttersgilde, the district court reasoned that a discharge decision could not have been taken by the general meeting, which had been kept ignorant about the litigious actions.1

In Ceteco, the district court ruled that not all shareholders were conscious of the litigious actions for which the defendant director claimed to have been discharged. The fact that Ceteco’s parent company, Hagemeyer, held 65% of the shares and was fully informed about Ceteco’s business decisions and associated risks, did not alter the court’s conclusion: the remaining 35% of the shares was with Ceteco’s Trust Office Foundation (STAK). Moreover, neither parties argued nor made plausible that the board of Ceteco’s Trust Office Foundation was informed of Ceteco’s business decisions and associated risks for which the director would be discharged.2 Furthermore, in reviewing a settlement agreement between the director and the supervisory board, the court held that, despite the written recommendation to the general shareholders’ meeting to discharge the director, such stipulation cannot lead to the conclusion that discharge was effectively provided by the general shareholders’ meeting.3

In Altera Pars Media B.V., the district court rejected the director’s submission of an email message as proof that discharge was provided. Despite the statements made in the email message and in absence of confirmation in writing, the court reasoned that it cannot be concluded that the general shareholders’ meeting had effectively discharged the director for the litigious actions.4