33 Conclusion

In conclusion, it appears that company law could only play a role in challenging the ever-rising remuneration amounts due to too heavy an emphasis on external references if the legislator decided to introduce a Dutch pay ratio.

As far as the division of powers is concerned, it should be noted that the instruments to put pressure on the supervisory board to decide on a different way of determining remuneration are already in place. A different division of powers is not necessary to resolve the highlighted key issues. If a change is made towards a more balanced division of the powers to determine remuneration, then the main principle should be guaranteeing a remuneration policy that is in line with the interests of the company.

Changing the company law rules related to adapting and clawing back remuneration could result in more emphasis on pay-for-responsibility. The limits imposed by the pacta sunt servanda principle and the related limited role of the courts mean that company law does not offer any panacea for the two key issues identified here. Change will have to be initiated by the companies themselves. It is up to the supervisory boards to take the lead in this.