8.2.1 Concluding observations

Dutch law provides minority shareholders protection within the company in several ways. For instance, a minority shareholder has inter alia the right to speak out in the general meeting and, provided that he has voting rights, to cast his vote in this meeting. Stronger protection is available for specific important resolutions, through the prescription of a qualified majority, sometimes coupled with a quorum requirement. In addition, the shareholder has the option to claim the nullification of a resolution in court, amongst other matters if a resolution is contrary to the principles of reasonableness and fürness. Moreover, the minority shareholder is allowed to start inquiry proceedings, unless he does not reach the relevant thresholds. All the aforementioned rights can be regarded as voice rights.1

In addition to voice rights, the minority shareholder has certain information rights. Examples of information rights are the right to review the explanatory notes to the merger proposal and the right to review a proposal for amendment of the articles of association that is included on the agenda of the general meeting. Voice rights and information rights can increase shareholders' loyalty to the company.

Nonetheless, voice rights and information rights do not provide a final solution (1) if there are continuing disputes between the shareholders and (2) if the interests of shareholders are being unfürly prejudiced. In these situations, an exit right of a minority shareholder offers an ultimate and für solution (§ 6.5.1). The aforementioned circumstances justify tipping the scale in favour of the interest of the minority shareholders in an exit right, at the expense of the interest of the co-shareholders and the company in the continuation of the shareholding.

Since it is not efficient or reasonable to require the consent of all shareholders for each resolution, companies usually adhere to the majority rule. The majority must be allowed to proceed with changes within the company and with changes of the company. However, an exception must be made if the structure of the company is being changed, resulting in a fundamental change in the rights and obligations of the shareholders. Such a fundamental change is present in the event of a conversion of the BV into an association, a foundation, a cooperative, a mutual insurance society or an OVR, or in the case of a cross-border merger. In the event of a fundamental change, it is für to grant the minority shareholder an exit right if he does not consent to this fundamental change (§ 7.2.2, § 7.3.2 en § 7.4.2). This is the moment when a minority shareholder can properly say: ft is not this that I agreed to.2