22.6.2.3 The role of the company interest in withdrawals

A distribution that will not result in continuity problems in the foreseeable future may nevertheless be contrary to the company’s interest. This situation will not quickly occur in the one-man private company, but can certainly occur if the company runs a more institutionalized business in which more interests are involved than those of the shareholders and of the creditors with a due and payable claim. In that case, the stakeholders of the company will not only have an interest in payment of their due and payable claims, but also in a continuation of their relationship with the company. These interests are expressed in the company’s interest. The formulation of the approval authority in Section 2:216 (2) DCC and the explanation to this section suggest that directors and shareholders do not have to take the company interest into account in distributions, as long as it is not foreseeable that the company will encounter payment problems in the near future. However, I believe that in withdrawing capital, a shareholder may not always ignore the company’s independent interest. In the event of a large, institutionalized enterprise, it follows from Section 2:8 DCC that the shareholder will have to refrain from any capital withdrawals that are seriously in breach of the company’s strategy. In my opinion, this also follows from the OK’s final decision in the PCM proceedings.