6.8.1.5 Prior approval rule

Restrictions on the transfer of shares that amount to a right of prior approval (goedkeuringsregeling) never apply during the exit proceedings, even if the prior approval rule is combined with a right of first refusal.1

If a prior approval rule would apply, there is a risk that the body entitled to the right of prior approval could frustrate the court order for transfer of the shares by denying the approval for transfer and by designating transferees that could continue the dispute. A prior approval rule is not compatible with the mandatory nature of proceedings for the settlement of disputes.2 In my view, the application of a prior approval rule in the exit proceedings also renders the transfer exceedingly onerous or impossible, so the prior approval rule is not applicable pursuant to Art. 2:337 paragraph 1 DCC.

In the situation of a prior approval rule, the shareholders are not lelt without rights. These shareholders have the possibility to request to be put in the same position as the claimant in the expulsion proceedings (Art. 2:341 paragraph 1 DCC) or to be put in the same position as the defendant in the exit proceedings (Art. 2:343a paragraph 1 DCC).3