24 The role of an ordinary civil court

When the role of the courts in the countries under investigation is examined with regard to the assessment of executive compensation, it becomes clear that this role is characterised by a significant degree of reserve. The courts only intervene in exceptional circumstances. What is striking is that the Dutch courts, from the point of view of legal certainty and to prevent conflicts of interest, are relentless in applying the division of powers when determining the remuneration. Without a formal appointment decision, those who perform board duties are not executives and cannot be considered for executive compensation. Only the body designated by law and the articles of association can determine the executive compensation, otherwise it is subject to be declared null and void. If the remuneration agreement turns out to be void in retrospect, the remuneration received must in principle be repaid. The same fate will befall executives if the executive compensation is determined in contravention of or contrary to the remuneration policy. In all other cases, the courts will restrict their intervention to exceptional circumstances that may lead to the assessment that the payment of the remuneration is unacceptable on the grounds of reasonableness and fairness.