Einde inhoudsopgave
The One-Tier Board (IVOR nr. 85) 2012/4.7.2.2
4.7.2.2 The shareholder
Mr. W.J.L. Calkoen, datum 16-02-2012
- Datum
16-02-2012
- Auteur
Mr. W.J.L. Calkoen
- JCDI
JCDI:ADS601870:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Poot ABP, HR 2/12/1994, NJ 1995, 288. Mr Poot was managing director and 100% shareholder of Poot B.V., which had a project development contract with ABP, pension fund/ investor. ABP withdrew from the contract. Poot B.V. went bankrupt and Mr Poot sued ABP in tort for his personal damages, i.e. the lost value of his shares in Poot B.V. The Supreme Court confirmed that as Poot B.V. was a separate entity it could make a claim, but not its shareholder Mr Poot.
An example is the NOM v. Willemsen case, HR 12/9/2008, JOR 2008, 297, where a director had requested a payment moratorium without the shareholders' consent, which was explicitly required by the articles of association. However, as Willemsen had consulted with NOM, the Supreme Court accepted his defence.
Article 2.139/249 DCC.
Jaap Winter, 'Corporate governance handhaving in de VS, EU en Nederland', in M.J. Kroeze, C.M. Harmsen, M.W. Josefus Jitta, L. Timmerman, J B Wezeman and P.M. van der Zanden (eds.), Verantwoording aan Hans Beckman (2006), p. 642 ('Winter (2006)'), a festschrift for Prof. Beckman. In practice, class actions have been brought against CEOs who have been unduly optimistic in their future projections, but such actions are normally based on general tort, article 2:162 DCC. A class action against Philips failed because the plaintiff used the wrong argument (unfair advertising).
Article 2.139/249 DCC.
Article 2.150/260 DCC.
A breach of contract or a tort committed by a director may result in the admission of a claim for damages against the director by the company, but a claim made by the shareholders of that company will not be upheld.1 The damage suffered by the shareholders as a result of such breach of contract or tort is generally derived from and coincides with the damage suffered by the company.2
Shareholders may hold the members of the management and supervisory boards liable for damage suffered as a result of misleading annual accounts. If the annual accounts, the interim figures published by the company or the annual report misrepresent the condition of the company, the management board members will be jointly and severally liable to third parties for any loss suffered by them as a result.3 This is the only cause of action available to shareholders, but has not been much used to date. Class actions, which have been possible in the Netherlands since 2005 as discussed below in 4.7.3.2, might increase the number of claims brought.4 A management board member will not be liable if he proves that he is without blame.5
A supervisory board member who proves that a misrepresentation of the condition of the company in the accounts is not due to any failure on his part to perform his supervisory duties will not be liable.6 It is important to note that this exculpation would not apply to non-executive directors on a onetier board. Once the case law on this point develops, it is likely that they would be exempted only if they prove they are without blame in their duties. Case law might make a distinction between executive and non-executive directors.