6.4.2.2 Relationship with Artt. 2:195 and 2:340 DCC

The phrase would render the transfer of shares impossible or exceedingly onerous is also found in Art. 2:195 paragraph 5 DCC. It should be noted, however, that Art. 2:195 paragraph 5 DCC only seems to relate to rules contained in the articles of association. Art. 2:337 paragraph 1 DCC applies both to rules contained in the articles of association and to contractual mies. Art. 2:195 paragraph 5 DCC stipulates that rules on the transfer of shares contained in the articles of association do not apply if these roles would render the transfer of shares impossible or exceedingly onerous, unless (i) this is caused by a lockup regarding any transfer of shares during a certain period, or (ii) this is caused because of application of valuation clauses that are binding on the involved shareholder.

In general, restrictions on the transfer of shares included in the articles of association or in an agreement, regardless of whether these amount to a right of first refusal or prior approval, are not aimed at resolving disputes and do not bar application of the proceedings of settlement of disputes as such.1 In proceedings for the settlement of disputes, transfer restriction clauses only apply if these amount to a right of first refusal. Art. 2:341 DCC further restricts their application. A prior approval rule does not apply in proceedings for the settlement of disputes.2

Moreover, taking into consideration that the scope of Art. 2:337 paragraph 1 DCC is broader, there seems to be no need for the application of 2:195 paragraph 5 DCC in proceedings for the settlement of disputes. When comparing both provisions, it is striking that Art. 2:337 paragraph 1 DCC does not include the aforementioned exceptions (i) and (ii) of Art. 2:195 paragraph 5 DCC. As both provisions each regard different situations, it is very likely that the exceptions (i) and (ii) do not form exceptions to the rule of Art. 2:337 paragraph 1 DCC. Consequently, proceedings for the settlement of disputes can be applied even if the shareholder agreed to a lockup for a certain period. Moreover, valuation clauses that make the transfer of sharers impossible or exceedingly onerous cannot be invoked pursuant to Art. 2:337 paragraph 1 DCC. Besides, in my opinion a valuation clause cannot make the transfer of the shares impossible.

Art. 2:340 paragraph 3 DCC clarifies that the court may disregard valuation clauses included in the articles of association or in an agreement in so far as these valuation clauses lead to a manifestly unreasonable price.3 As appears from the legislative history, valuation clauses that lead to a manifestly unreasonable price also render the transfer of shares exceedingly onerous.

Consequently, I assume that the standard set by Art. 2:340 paragraph 3 DCC equals that of Art. 2:337 paragraph 1 DCC. It should be noted that statute does not make a difference between shareholders who previously consented to the valuation clause and shareholders who have not consented to the valuation clause. This seems für as a valuation clause that leads to a price for the shares below their actual value may form an incentive for the majority shareholder to oppress the minority shareholder.5