Article 2:345 of the Dutch Civil Code (Burgerlijk Wetboek) opens the right of inquiry (enquêterecht). On a written request from those entitled to file it, the Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal can appoint one or more investigators to examine the policy and conduct of affairs (beleid en gang van zaken) of a legal entity, in whole, in part or over a specific period.
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Who can request an inquiry?
Shareholders and holders of depositary receipts who meet a minimum stake in the issued capital, as set in Article 2:346 Dutch Civil Code, or a lower threshold in the articles of association. The company itself, through its board or supervisory board, and trade unions representing employees can also file. The Advocate General at the Amsterdam Court of Appeal may do so for reasons of public interest.
When will the Enterprise Chamber order an inquiry?
Only when there are well-founded reasons to doubt correct policy (Article 2:350 Dutch Civil Code). Before filing, shareholders must have informed the board and supervisory board in writing of their objections and given them a reasonable opportunity to respond (Article 2:349 Dutch Civil Code). If the investigators’ report shows mismanagement (wanbeleid), the Enterprise Chamber can, in a second phase, impose measures such as suspending directors, annulling resolutions or transferring shares for management purposes (Article 2:356 Dutch Civil Code).
What are immediate measures?
At any stage, the Enterprise Chamber can impose provisional measures (onmiddellijke voorzieningen) if the situation of the company requires it (Article 2:349a Dutch Civil Code). Examples include appointing a temporary director or supervisory director, or suspending voting rights. These measures often have more impact than the inquiry itself, for example to break a deadlock in the general meeting.
What are the risks?
An inquiry is an investigation procedure, not a claim for damages. The costs of the investigation are in principle borne by the company. The proceedings are public and can further damage relations between the parties. The report can later be used as evidence in a liability claim.
Frequently asked questions
Does the right of inquiry apply to foundations and associations?
Yes, it applies to most legal entities, although the rules on who may file differ.
How fast does the Enterprise Chamber act?
In urgent cases, immediate measures can be granted within weeks.
Related terms
- Inquiry proceedings at the Enterprise Chamber
- Article 2:343 Dutch Civil Code (withdrawal of a shareholder)
- General meeting of shareholders
- Depositary receipts for shares
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