Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/7.2.2
7.2.2 Rationale
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS402965:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Art. 2:18 DCC is introduced by the same act as the appraisal right of Art. 2:181 DCC.
Bundel NV en BV, p. IXt-Art.18-6: 'Van belang is wel dat de deelnemers die de stap niet mee willen zetten, moeten worden ontzien. Volgens het wetsontwerp kan deze kleine minderheid uittreden (...).'
Bundel NV en BV, p. DQ-Art.18-9: 'Een naamloze of besloten vennootschap is een kapitaalvennootschap. In beginsel krijgt ieder bij vereffening zijn aandeel terugbetaald alsmede, tenzij de statuten dat anders regelen, een aandeel in het overschot na vereffening. Zonder instemming van de aandeelhouders behoort hem deze aanspraak niet te worden ontnomen. De gedachte om, al was hij de enige die vóór stemt, hem te dwingen als lid te blijven of zonder schadeloosstelling te gaan, is een afwijking van een grondbeginsel van ons vennootschapsrecht die niet door een overgrote meerderheid aan voorstemmers wordt gerechtvaardigd.'
With respect to the BV, the default ruleis that shareholders are entitled to the liquidation balance, unless otherwise provided by the articles of association. This default ruleis found in Art. 2:23b paragraph 1 DCC. See also Asser/Maeijer (2000), no. 566. With respect to the cooperative and the mutual insurances society, the articles of association have to indicate the destination of the credit balance. This follows from Art. 2:27 paragraph 4 at (f) DCC in conjunction with Art. 2:53a DCC. If, nonetheless, the articles of association remain silent on this matter, the default ruleof Art. 2:23b paragraph 1 DCC applies. As practice shows, often the articles of association of cooperatives and mutual insurance societies stipulate that the members are entitled to the credit balance. Further about this topic, see Kemperink (2006), p. 223-224.
'Het verschil tussen een lidmaatschapsrecht en een aandeel kan flinterdun zijn (...).', see Bundel NV en BV, p. IXt-Art.18-9.
More about material characteristics: Asser/Maeijer 2-11 (1997), no. 31.
As mentioned before, Art. 2:18 DCC considers the general section as regards the conversion of legal entities and therefore applies to the conversion of a BV.1 As the legislative history of Art. 2:18 DCC shows, the justification of the appraisal right lies in the consideration that a member or shareholder cannot be forced against his will to remain in a legal entity that is converted into another legal form. The fact that a large majority of members support the conversion does not justify application of the appraisal right. In the legislative history, it was considered:
"It is of importance that participants who do not wish to take the step are spared. According to the legislative proposal, this small minority can exit."2
According to Art. 2:181 paragraph 2 DCC, the shareholder who does not consent to the conversion of the BV ought to receive indemnification for the loss of his shares. In the legislative history of Art 2:181 DCC, it was argued that this indemnification runs parallel with the right of the shareholder on the proportionate share of the surplus after liquidation of the company. The Minister of Justice held that forcing the shareholder to remain a member, withholding indemnification and denying the conditional claim regarding the liquidation surplus is contrary to a fundamental principle of company law:
"An NV or BV is a joint-stock company. In principle everyone, receives a refund for his shares at liquidation as well as, unless otherwise stipulated by the articles of association, a stake in the surplus after liquidation. Without the consent of the shareholders, this claim should not be taken away from him. The idea to, even if he were the only one voting in favour (I think "against" is meant, PdV), force him to remain a member or to exit without indemnification, is a deviation from a basic principle of our company law which will not be justified by a vast majority of persons voting in favour."3
The fact that differences between the position of a shareholder of a BV and the position of a member of a cooperative or a mutual insurance society occasionally may be very limited does not alter this view. For instance, the BV, the cooperative and the mutual insurance society have in common that they pursue to supply their shareholders casu quo members with material needs. Moreover, each of these entities may involve their shareholders casu quo members by way of a contribution. Thirdly, the articles of association often stipulate that shareholders in a BV or members of a cooperative or mutual insurance society are entitled to the proportionate share of the credit balance after liquidation.4 Fourthly, in principle, the liability of shareholders in a BV, the liability of members in a cooperative with excluded liability or a mutual insurance society with excluded liability is excluded.
Therefore, it does not surprise that the Minister puts forward:
"The difference between a membership right and a share can be wafer-thin."5
Additionally, in the case of a conversion usually a certain degree of factual likeness between the existing and the future legal form is present. As can be derived from the legislative history, and follows from the literai text of statute as well, the presence of factual likeness does not provide a bar for the allocation of the appraisal right.
The essence of the choice of the legislator seems to be that the existing legal form of the BV is abandoned for another legal form, to which a fundamentally different set of legal rules applies. One could say that the so-called material characteristics of each of the legal forms diverge to such an extent, that an appraisal right is justified.6 The fact that in practice differences between these legal forms may diminish seems to be irrelevant.