6.2.2 Report of the Company Law Committee of 1975

In compliance with the request of the Minister of Justice, the Company Law Committee carried out its study. In this study, the Committee focused particularly on remedies less far-reaching than the winding-up of the company.1 A few years later, on the 16th of January 1975, it presented its fmdings to the Minister of Justice onder the name: the Report of the Company Law Committee regarding the introduction of proceedings for the settlement of disputes applying to BVs.2 In this report, the Company Law Committee identified the remedies available at that time in Belgium, France, Germany, Switzerland, and England and Wales. Special attention was paid to the German Referentenentwulf, to the English fust and equitable winding-up remedy, as well as to the English oppression remedy, the predecessor of the unfür prejudice remedy.3

Further to this comparative study, the Committee recommended the introduction of proceedings for the settlement of disputes. The Committee thought that these proceedings would form a useful addition to the already existing inquiry proceedings and proceedings for the nullification of resolutions, especially when resolutions conflict with the principles of reasonableness and faimess.4It was considered that the nullification of resolutions only leads to incidental intervention and does not lead to a satisfactory solution for ongoing disputes. With respect to inquiry proceedings, a possible overlap with proceedings for the settlement of disputes was acknowledged, but it was also held that both proceedings contain different grounds for application and also different orders. Proceedings for the settlement of disputes could provide for a solution in the situation that the policy of the company would not raise objections and mismanagement could not be concluded.

The Company Law Committee's report included a draft regulation for proceedings for the settlement of disputes. This draft regulation shows that the German and Swiss regulations served as an important source of inspiration.5 In the draft regulation, the Company Law Committee included expulsion proceedings, exit proceedings and a winding-up remedy.6 All proceedings were available to shareholders in a BV but did not apply to NVs and their shareholders. The expulsion proceedings contained comparable criteria such as the current expulsion proceedings contain. The threshold for the expulsion proceedings as proposed in the report was higher, however, as only a shareholder holding at least fifty per cent of the issued capital of a BV was entitled to apply onder the expulsion proceedings.7 At that time, the Committee was of the opinion that it would not be appropriate to enable smaller minority shareholders to expel a shareholder, or even to expel a majority shareholder. @@8

To a large extent, the scope of the proposed exit proceedings was similar to that of the current exit proceedings. The exit proceedings could be started by summons (dagvaarding) by a shareholder on the ground that the interests of that shareholder are prejudiced by one or more co-shareholder(s) or by the company to such an extent that he can no longer reasonably be expected to continue his shareholding. The exit proceedings could be started against co-shareholder(s) and against the company itself.

There was debate in the Company Law Committee whether the expulsion and exit proceedings should have two instances, consisting of a first instance at the District Court (Rechtbank) and with an appeal instance at the OK, or consisting of merely one instance at the OK. As only a small majority was in favour of two instances and a large minority opposed, both alternatives were included in the draft regulation.9

As a final point, the majority of the Committee stated that the proceedings should consist of private hearings behind closed doors. The majority argued that publicity of a case before court could damage the company 's interests. A minority in the Committee opposed to this, stressing that publicity of hearings constitutes a fundamental procedural tule and by pointing to the fact that other proceedings started against the company are held in public as well (for instance, proceedings under tort).10