The limits of the right of inquiry
Inadmissible, no inquiry, no dispute resolution: three refusals
The Enterprise Chamber has a broad discretionary power. Even where valid reasons to doubt the conduct of affairs are established, it is not obliged to order an inquiry. Three recent rulings show how the Chamber guards its limits, each on a different ground.
In Archirodon (ECLI:NL:GHAMS:2025:2678) the Chamber does not even reach the merits. International Felman Finance holds an indirect interest of 14.4% in Archirodon Group through two intermediate companies in Cyprus and the Netherlands. Felman relies on the Scheipar line of authority (Supreme Court 6 June 2003, ECLI:NL:HR:2003:AF9440): as a provider of risk-bearing capital with its own economic interest, its position should be equated with that of a direct shareholder. The Chamber emphasises, however, that such equation does not follow automatically from an economic interest, all facts and circumstances count, including the activities of the intermediate entities and the existence of separate shareholders' agreements at different levels (compare Supreme Court 11 April 2014, ECLI:NL:HR:2014:905, Slotervaartziekenhuis). The intermediate entities meet the tax substance requirements, their own management, employees, an office in Cyprus, an annual Deloitte audit. There are two separate shareholders' agreements at different levels. Felman cannot enforce its right under the ICI SHA to nominate an Archirodon director against Archirodon itself. The fact that the intended restructuring, the elimination of the intermediate entities, foundered on the refusal of co-shareholder ANI confirms, in the Chamber's view, that the structure matters.
In Dermaesthetics Beheer (ECLI:NL:GHAMS:2025:2399), a family company in the skincare industry with a mother, son and daughter as shareholders, the Chamber does find valid reasons to doubt the conduct of affairs. The relationships have been disrupted for years, the administration is not in order, and annual accounts have not been filed on time. Even so, the Chamber considers an inquiry not to be in the company's interest. Since the removal of the petitioner as director, the management functions again, the administration is being restored, and the company is not in the danger zone. An inquiry would once more cause unrest without a clear purpose.
In 2000 HH (ECLI:NL:GHAMS:2025:2664) the Chamber rejects both compulsory transfer and compulsory withdrawal in statutory dispute resolution proceedings. Two partners in a 50/50 structural engineering firm have failed to work together ever since its incorporation in 2007. After eighteen years of fruitless attempts to unwind the partnership, the petitioning party steps down as director, starts competing activities, but remains a shareholder. The remaining director decides to wind the business down in a controlled manner. The Chamber holds that this is entirely justifiable: a party who itself disturbs the balance by leaving as director while staying on as shareholder can hardly complain that the other draws the conclusion. The fastest route to the exit is dissolution and liquidation, not statutory dispute resolution.
The company's interest determines the outcome
The three rulings confirm that the interest of the company and its business comes first in the balancing of interests (Supreme Court 18 November 2022, ECLI:NL:HR:2022:1705; see also the Opinion of Advocate General Assink, ECLI:NL:PHR:2022:398, who emphasises that, after establishing valid reasons, the court retains room to reject the petition where the company has in the meantime taken measures itself). In Archirodon the Chamber respects the corporate structure chosen, even where that structure hampers access to the right of inquiry. In Dermaesthetics it takes into account that the administration is now being put in order, that the 2023 annual accounts have been filed, and that the company is not in the danger zone. In 2000 HH it finds that de facto liquidation is already under way and that a valuation exercise through statutory dispute resolution offers no added value.
What does this mean for shareholders and their advisers?
Three lessons stand out for practice. First: the Chamber's discretionary power is no dead letter, valid reasons far from always lead to an inquiry. Second: admissibility for indirect interests requires more than economic involvement. The legal structure counts, especially where intermediate entities have substance. Third: a party who blows up the cooperation by stepping down as director while retaining shares has a weak position in statutory dispute resolution. The Chamber then sees dissolution and liquidation as the logical route. More on the Chamber's inquiry practice in the detailed analysis of the right of inquiry and the Nexperia case, in which the Chamber did intervene to the fullest extent, albeit in exceptional circumstances.
Frequently asked questions
Can the Enterprise Chamber reject an inquiry where valid reasons to doubt the conduct of affairs are established?
Yes. The power to order an inquiry is discretionary. The Chamber weighs all the interests involved, with the company's interest coming first. Where an inquiry offers no added value, for example because the parties are already working on recovery or statutory dispute resolution is more effective, the Chamber may reject the petition despite established doubts.
When can an indirect shareholder file an inquiry petition?
The list in Section 2:346 DCC is exhaustive. An indirect shareholder may be equated with a direct shareholder where its economic interest can be placed on the same footing. The Chamber assesses this on the basis of all the circumstances, including the activities and substance of the intermediate entities and the contractual structure chosen.
What if statutory dispute resolution is not suitable for a 50/50 conflict?
Statutory dispute resolution presupposes that the company will be continued. Where the business is in fact already being wound down, the Chamber may conclude that dissolution and liquidation is the fastest route. A valuation exercise through statutory dispute resolution then offers no added value and may even delay the winding-up.
ECLI:NL:GHAMS:2025:2678, Amsterdam Court of Appeal (Enterprise Chamber), 7 October 2025 (Archirodon/Felman)
ECLI:NL:GHAMS:2025:2399, Amsterdam Court of Appeal (Enterprise Chamber), 3 July 2025 (Dermaesthetics)
ECLI:NL:GHAMS:2025:2664, Amsterdam Court of Appeal (Enterprise Chamber), 7 October 2025 (2000 HH)
Cited case law
Supreme Court: ECLI:NL:HR:2003:AF9440 · ECLI:NL:HR:2014:905 · ECLI:NL:HR:2022:1705
Advocate General: ECLI:NL:PHR:2022:398
Courts of Appeal: ECLI:NL:GHAMS:2025:2678 · ECLI:NL:GHAMS:2025:2399 · ECLI:NL:GHAMS:2025:2664