Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/7.4.1
7.4.1 Introduction
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS405196:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
The implementation act dates from 27 June 2008, Stb. 2008, 261. The rules came into force on 15 July 2008.
Section 4 of Title 2.7 DCC includes the Dutch rules on legal demergers.
1. Indien de verkrijgende vennootschap een vennootschap naar het recht van een andere lidstaat van de Europese Unie of de Europese Economische Ruimte is, kan de aandeelhouder van een verdwijnende vennootschap die tegen het fusiebesluit heeft gestemd binnen een maand na de datum van het besluit bij de verdwijnende vennootschap een verzoek indienen tot schadeloosstelling. 2. De schadeloosstelling wordt bij gebreke van overeenstemming bepaald door een of meer onafhankelijke deskundigen, op verzoek van de meest gerede partij te benoemen door de voorzitter van de ondernemingskamer van het gerechtshof te Amsterdam. 3. De aandelen waarop het verzoek betrekking heeft, vervallen op het moment dat de fusie van kracht wordt. 4. Voor de toepassing van dit artikel worden met aandeelhouders gelijkgesteld de houders van certificaten van aandelen als bedoeld in artikel 118a.
Recital 3 first sentence of Directive 2005/56/EC.
See Art. 2:308 paragraph 3 DCC.
Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies.
As follows from Art. 10 paragraph 3 Directive 2005/56/EC the laws of a Member State may provide for a procedure to compensate minority shareholders.
The Dutch rules on cross-border mergers were implemented into Dutch law in the summer of 2008.1 The rules applicable to cross-border mergers have a layered structure. General rules on legal mergers are found in Section 1 and 2 of Title 7 of Book 2 DCC. Rules on legal mergers involving a BV or an NV are found in Section 3 of Title 2.7 DCC. The Dutch rules on cross-border mergers are found in the Artt. 333b DCC up to and including Art. 2:3331 DCC, forming Section 3a of Title 2.7 DCC.2 In case of a cross-border merger, all aforementioned sections are applicable.
The appraisal right itself is contained in Art. 2:333h DCC. This section stipulates:
1.Any shareholder of the disappearing company that voted against the resolution for a legal merger may request the disappearing company for indemnification within one month after such resolution, provided that the acquiring company is a company governed by the laws of another Member State of the European Union or the European Economic Area.
2.In the absence of agreement, such indemnification shall be determined by one or more independent experts appointed, on the application of an interested party, by the president of the OK
3.The shares, for which the request hos been done, cease to exist as from the moment the legal mengers enters into effect.
For the application of this article, holders of depository receipts for shares as referred to in Article 118a are equated with shareholders.3
As appears from Art. 2:333h DCC, the appraisal right is only available in the situation that the disappearing company is governed by Dutch law and the acquiring company is governed by the laws of another EU or EEA Member State. In the following, the focus will be on this specific type of cross-border merger and in particular on the appraisal right.
The example that will be used in the following considers a cross-border merger involving a Dutch disappearing BV and an existing English acquiring Ltd. This is merely a random example, as instead of an Ltd any joint-stock company governed by the laws of another EU or EEA Member State (except for the BV) could be used as an acquiring company. In addition, a cross-border merger may also involve, save for an acquiring company, several disappearing companies regardless of which Members State of the EU or EEA governs each disappearing company. Moreover, in the process of merger the acquiring company could be newly incorporated.
In a cross-border merger, the BV and Ltd and each third party involved remain subject to the provisions and formalities of their national law, as if it were a national merger.4 Consequently, up to the moment the merger is effected the disappearing BV is subject to the provisions and formalities of Dutch law.5 The acquiring Ltd remains subject to the provisions and formalities of the laws of England and Wales even after the merger has been accomplished.
The Dutch rules on cross-border mergers are based on the Tenth EC Directive of 2005.6 The Tenth EC Directive neither includes an appraisal right as such nor compels to introduce an appraisal right.7Art. 4 paragraph 2 of the Tenth EC Directive, second sentence allows Member States to introduce tules to protect minority shareholder, as it provides:
A Member State may, in the case of companies participating in a cross-border merger and governed by its law, adopt provisions designed to ensure appropriate protection for minority members who have opposed the cross-border merger.
The discretion of national legislators to introduce tules on minority protection, however, is restricted by Recital 3 of the Tenth Directive. As can be understood from Recital 3 of the Tenth EC Directive, second sentence there are certain limits with respect to the introduction of tules regarding minority protection:
None of the provisions and formalities of national law, to which reference is made in this Directive, should introduce restrictions on freedom of establishment or on the free movement of capital save where these can be justified in accordance with the case law of the Court of Justice and in particular by requirements of the general interest and are both necessary for, and proportionate to, the attainment of such overriding requirements.
The Netherlands used the option provided for in Article 4 of the Tenth EC Directive and introduced an appraisal right to ensure appropriate protection for minority shareholders in the situation of a cross-border merger. Consequently, it can be assumed that the Dutch legislator is of the opinion that a Dutch appraisal is justified, taking into consideration Recital 3 of the Tenth Directive.