6.5.2 Present and past conduct

Art. 2:343 DCC (exit proceedings) includes the phrase is prejudiced (is geschaad). Art. 2:336 DCC (expulsion proceedings) includes the phrase prejudices or has prejudiced (schaadt of heeft geschaad). It is clear that Art. 2:343 DCC covers prejudicial conduct occurred in the past.1 In my opinion, conduct in the past as well as conduct in the present can be taken into regard.2 In most cases, the proceedings will be based on prejudicial conduct in the past that continues in the present causing the intolerable situation.

The threat that prejudicial conduct will occur in the future does not seem to be covered by the literal wording of Art. 2:343 DCC. The literal wording does not include future conduct. Nonetheless, I assume that prejudicial conduct to be expected in the future may add to the conclusion that the situation mentioned in Art. 2:343 DCC is present. For example, it is reasonable to take into consideration proposals for resolutions if these resolutions, when adopted, would further prejudice the interests of the minority shareholder.

Nonetheless, mere presence of a serious risk that prejudicial conduct will take place does not seem to be sufficient to justify an exit.