Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.5.4
6.5.4 Causal connection and culpability
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS410750:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
In a similar vein: Van den Ingh in his comments at OK 20 November 1997, JOR 1998, 26 (Hooymans). Bertrams oposes this view in: Bertrams (1999), p. 91.
OK 9 December 1993, NJ 1994/296 (Van Eyk), r.o. 2.4.5. and 2.4.6; Rb Rotterdam 5 November 1998, JOR 1999, 28 (Metz), r.o. 4.2 and 4.3.; Rb Rotterdam 13 December 2006, JOR 2007/86, r.o. 4.31.
Commissie Vennootschapsrecht (1975), p. VIM — 39: 'In geval van uittreding moet de rechter het bevel tot overneming van de betreffende aandelen kunnen geven aan degene aan wie het gewraakte handelen te wijten is.'
See Bundel NV en BV, p. IXy-8 (MvT), as cited supra in § 6.2.3.
Westbroek (1991), p. 27.
See infra § 6.9.
In § 4.6, I explained that in these circumstances in Germany an exit can be claimed, whereas in England and Wales in these circumstances an exit is denied.
Asser/MaeijerNan Solinge & Nieuwe Weme 2-11* (2009), no. 709 with reference to Rb Rotterdam 13 December 2006 JOR 2007/86 (Van Huizen) m.nt. Bulten.
The phrase prejudicial conduct is directly connected with the phrase situation in which the continuation of a shareholding can no longer reasonably expected. This prerequisite can be derived from the literai wording of Art. 2:343 paragraph 1 DCC. In the case of exit proceedings started against a coshareholder, a causal connection must be present between the prejudicial conduct and the intolerable situation. Art. 2:343 DCC means that there is a certain degree of culpability. The claim must be directed at the co-shareholder(s) culpable for the prejudicial conduct. In other words, in order for an exit claim to succeed, it must be demonstrated that the co-shareholder(s) can be blamed for the intolerable situation.1 This view is also adhered to in case law.2 In its 1975 report, the Company Law Committee expressed it as follows:
"In the case of an exit, the court should be allowed to direct the order to the person who can be blamed for the challenged conduct."3
In the event that the exit proceedings are started against the company, either a connection between prejudicial conduct of the company and the intolerable situation, or connection between the prejudicial conduct of the co-shareholders and the intolerable situation must be present.
All the same, it is not of relevance if both parties can be blamed equally for the prejudicial conduct. I base this view on the legislative history, which explicitly considers that proceedings for the settlement of disputes are aimed to resolve deadlock situations.4 The exit proceedings are aimed to provide a solution in a situation in which cooperation within the company becomes impossible, or threatens to become impossible, because of differences of opinion between shareholders. Often, in deadlock situations shareholders can equally be blamed for the deadlock. The ultimate consequence of this is that if both 50% shareholders start exit proceedings against each other, the court must reward both claims. Obviously, this does not lead to the desired result.
As early as 1991, Westbroek pointed to the fact that a claim onder the exit proceedings cannot be started against a co-shareholder if based on prejudicial conduct performed by a holder of a right of usufruct or pledge who is entitled to vote.5 In this situation, if pos sible, the shareholder may use the proceedings for the compulsory transfer of the voting right vested in a holder of a right of usufruct or pledge of shares of Art. 2:242 DCC or perhaps the inquiry proceedings.6 However, as a shareholder must hold at least one third of the issued capital of the company in order to use the aforementioned proceedings, and as it must be established that the company's interest is prejudiced, these proceedings may not be available for minority shareholders. In my opinion, it would be useful to introduce the option to start exit proceedings against these holders of a right of usufruct or pledge. In order to prevent that shares are transferred to these persons, it can be useful to provide that the (underlying) shareholder has a right of first refusal.
In my view, facts that are not caused by the co-shareholders or by the company are not relevant to the question whether the exit claim must be granted by the court. For instance, personal circumstances, such as the long illness of a shareholder or the personal financial need of a shareholder, are not relevant.7 In the aforementioned situations, a causal connection between the prejudicial conduct and the intolerable situation is not present. Therefore, I do not agree with the view of Maeijer, Van Solinge and Nieuwe Weme that the urgent need for financial means can be relevant in the exit proceedings.8 In my opinion, the co-shareholders or the company should not bear the consequences of these facts of life, facts for which they were not responsible.