A promise made in 2007 and kept only in 2025
The explanatory memorandum to the bill on the flexible private company, submitted in 2007, contains a sentence that came into its own eighteen years later. On the recommendations for reforming the statutory dispute resolution that the minister did not adopt at the time, he wrote that some of them "may be addressed in a separate bill to be prepared at a later stage" (Parliamentary Papers II 2006/07, 31 058, no. 3, p. 17).
That separate bill is the Act amending the statutory dispute resolution and clarifying the admissibility requirements for inquiry proceedings, known in practice as the Wagevoe, in force since 1 January 2025. Almost everything it introduces was already on the table in 2004 and was rejected in 2007.
What that waiting period meant in practice can be read from two judgments. Two shareholders each held half of the shares and both were directors; the cooperation broke down, one accused the other of mismanagement and sought expulsion. The interim relief judge in Rotterdam dismissed the claim, because the complaints concerned performance as a director while the statute required conduct in the capacity of shareholder (Rb. Rotterdam (interim relief) 16 January 2013, JOR 2013/98, Next Level Systems). The deadlock remained. Two and a half years earlier the same thing had happened in Leeuwarden: there too the expulsion failed because the complaint was directed at the director rather than the shareholder, and the court pointed to suspension or dismissal as the appropriate route (Rb. Leeuwarden (interim relief) 30 June 2010, ECLI:NL:RBLEE:2010:BN0523, Swisch Holding). Both courts applied what the legislature had intended, and both cases appear in the explanatory memorandum to the act that changed it in 2025.
1989: a three-step test and a deliberate limitation
The statutory dispute resolution was designed for small companies, where a shareholder cannot easily sell out and is therefore trapped when the cooperation fails.
The expulsion test had three steps. First, the shareholder's conduct must harm the interest of the company to such an extent that continuation of the shareholding cannot reasonably be tolerated; the basis is the company's interest and not the applicant's, and conduct that is merely troublesome or even unacceptable is in itself insufficient. Second, the conduct must have been performed in the capacity of shareholder. Third, a reasonableness test applies, in which the court weighs the shareholder's interest in staying against the company's interest in his departure (Parliamentary Papers II 2023/24, 36 469, no. 3, p. 2).
The second step was a deliberate choice with an express justification. Conduct outside the capacity of shareholder that harms the company could also be redressed in other ways: by an action to prohibit the conduct, or one for damages (36 469, no. 3, p. 12, referring to Parliamentary Papers II 1984/85, 18 905, no. 3, pp. 16 to 17). Expulsion was not necessary, because ordinary private law already offered a remedy.
That boundary chafed. Damage to the company's good name that is not directly connected to the shareholder's functioning within the company could not support an expulsion, and the same applied to a shareholder acting as a competitor (36 469, no. 3, p. 11). For withdrawal the legislature made the mirror-image choice: there the question is harm to the shareholder's own rights and interests, and there the capacity requirement has never applied. That asymmetry explains why the 2025 act only had to intervene on the expulsion side.
2003 to 2008: the package is on the table and is deferred
The process begins in the autumn of 2003, when the Minister of Justice and the State Secretary for Economic Affairs appoint an expert group chaired by De Kluiver, tasked with identifying bottlenecks in private company law. That group calls a sound statutory dispute resolution a necessary keystone for a balanced private company law. The Company Law Committee endorsed that view on 21 June 2004, and in September 2004 further consultations followed on the basis of an internal memorandum of issues (31 058, no. 3, p. 17). One reason was that since 1989 "only some 15 proceedings" had been brought.
The Committee advised a shortened procedure for cases in which only the price is in dispute, which became article 2:343c of the Dutch Civil Code, and suggested placing the right of expulsion within inquiry proceedings and establishing a single instance on the facts before the Enterprise Chamber for withdrawal. In June 2005 a majority of the Committee reversed itself on the latter point and preferred a specialised district court, with appeal on the price to the Enterprise Chamber (31 058, no. 3, pp. 18 to 20). The Council of State was not satisfied with that: it found the proposed amendments desirable but questioned whether they were sufficient, and pointed to a procedure in a single instance on the facts with the designation of one court of fact (31 058, no. 4, p. 10).
Five proposals do not make the bill
The explanatory memorandum lists what was not adopted: widening the grounds for expulsion, a claim by the company itself, changing the scope of application for the public company, a single specialised district court or incorporation into inquiry proceedings, and conversion into a petition procedure (31 058, no. 3, p. 21). The rejection of holders of depositary receipts follows a page later, because their position "differs too greatly from that of ordinary shareholders" (31 058, no. 3, p. 22); in 2008 that rejection is repeated (Parliamentary Papers II 2008/09, 31 058, no. 6, p. 41).
The reasons given are strikingly uneven in weight. On widening the grounds for expulsion, the memorandum says no more than that it "falls somewhat outside the discussion as it has been conducted on private company law thus far". On concentration: that requires "compelling grounds, which in my view are not present here". And on the form of proceedings: conversion "would not sit well with the possibility created by this bill of also bringing claims for damages within the procedure".
Four of those five became law in 2025 after all. Only the incorporation of expulsion into inquiry proceedings was rejected once more.
Related claims were the reason for two instances
This is the hinge of the whole history. In 2008 the government spells out the consequence itself:
If the statutory dispute resolution were limited to a single instance on the facts, the possibility of bringing claims for damages within the procedure would have to be deleted from the bill. That would mean abandoning an important improvement in the statutory dispute resolution.
(31 058, no. 6, p. 23.) In 2025 the legislature opts for both and resolves the conflict with the power to sever under article 2:336a(7) of the Civil Code. That provision is the answer to this objection from 2008.
In the same document the government rejects the proposal to align expulsion with the reasonableness and fairness of article 2:8 of the Civil Code. Because the regime addresses paralysed decision-making, it makes sense to tie it to conduct in the capacity of shareholder (31 058, no. 6, p. 23). It is precisely that link that the 2025 act severs.
One nuance is due on the word rejected. Of the sixteen amendments tabled to the flexible private company bill, none touched the statutory dispute resolution. The House therefore never voted on it; the debate was conducted entirely in the report and the memorandum in reply, between the government and its advisers.
2012: the law of inquiry plants two seeds
The first seed: an undertaking on final transfer
During the passage of the Act amending the law of inquiry, the VVD parliamentary group asked whether the Enterprise Chamber should be able to order a final transfer of shares. The answer contains the doctrinal core: in inquiry proceedings the petition is directed at the legal entity, so the shareholder is not automatically a party, whereas expropriation requires that he be able to defend himself in court under article 6 ECHR and article 1 of the First Protocol. There follows:
I should like to consider whether a finding of mismanagement in inquiry proceedings may give access to a simplified statutory dispute resolution leading to a final transfer of shares.
(Parliamentary Papers II 2011/12, 32 887, no. 6, p. 6.) That is the construction the 2019 preliminary draft would elaborate, the draft version submitted for consultation before introduction.
Two points are often overlooked. Concentration before the Enterprise Chamber was already possible then as an opt-in: parties could agree in advance to bring their dispute directly before it, bypassing the district court. And the petition form already existed for the uncontested price route of article 2:343c, "as befits a procedure that does not proceed from a conflict between parties" (31 058, no. 3, p. 113). What is new in 2025 is the exclusivity and the extension to the contentious part.
The second seed: thresholds nobody had worked through
The same act reset the capital requirements for inquiry proceedings, and the legislature is unusually candid about where they came from:
The choice of the 1%, EUR 22.5 million and EUR 20 million thresholds is to some extent arbitrary.
(32 887, no. 3, p. 27.) That one per cent is borrowed from the right to table agenda items in article 2:114a of the Civil Code. The 22.5 million was reverse-engineered: at that level of issued capital, one per cent equals the former threshold of EUR 225,000. And the 20 million in market value comes neither from the government nor from the Social and Economic Council as a whole, but from its advisory members, the representatives of shareholder organisations. The picture of a legislature that unilaterally narrowed access in 2013 is therefore only half right.
The government also identified the risk that had to be repaired in 2025. It considered removing the nominal threshold for small companies and refrained "because there is a chance that this would inadvertently restrict access to inquiry proceedings after all" (32 887, no. 3, p. 28). Precisely such an unintended restriction then arose for listed companies below the 22.5 million mark, which could not invoke the market value criterion. The risk had been named and attributed to the wrong category. The nominal value per share is nowhere raised in the entire 2011 and 2012 file.
One element of the current statutory text comes from a member of parliament. The words "according to the closing price on the last trading day before the petition is filed" are an amendment by Van der Steur of 3 April 2012, adopted unanimously because the memorandum had assumed a price that is not yet fixed at the moment of filing. That wording was carried over unchanged in 2025 into the new paragraph (d) of article 2:346(1). Anyone searching older materials for that paragraph (d) will land on a different subject: until 2025 it covered the legal entity referred to in article 2:344, and the threshold history sits under paragraph (c).
2019: the preliminary draft does not survive
The Act amending the law of inquiry required an evaluation within three years, so by 1 January 2016 at the latest. The study by Tilburg University commissioned by the WODC appeared in early 2018. That delayed evaluation identified the threshold problem and led to the expert meeting of 10 September 2018, where the sense was that the statutory dispute resolution is of no real value in practice (36 469, no. 3, p. 6). From 22 August to 22 November 2019 the preliminary draft was open for consultation, drawing fourteen responses.
Seventeen procedural steps
The Council for the Judiciary calculated what the proposed route would cost and set it out schematically, from (a) to (q). First the entire inquiry: petition with immediate relief, defences, hearing, granting decision, investigation, filing of the report, second-phase petition, further defences, a second hearing, and the finding of mismanagement with remedies. Only then does the simplified statutory dispute resolution begin, with a writ of summons, statement of defence, hearing, interim judgment, expert report, submission and final judgment. Seventeen steps in all. The Council concludes that the time and money involved are often out of all proportion to what the company and the shareholders can bear.
Van Doorne underpinned the objection empirically: the Enterprise Chamber's annual report for 2018 shows 78 withdrawals or settlements against 98 first-phase petitions. Shareholder disputes are in practice resolved under the pressure of the inquiry and the immediate relief that comes with it, and the preliminary draft left that dynamic untouched.
The other respondents attacked the core element each on a different ground. The Joint Company Law Committee of the Netherlands Bar and the Royal Notarial Association feared that because of the long lead time it "will not contribute (much) to swift and efficient access to the courts in shareholder disputes". Boels Zanders pointed out that the detour via the inquiry is in fact encouraged. Van Benthem & Keulen argued that the principles of due process do not apply during the investigation phase. Wintertaling pointed to the absence of any appeal against a finding in which the shareholder had played no part.
The Council for the Judiciary contests the doctrinal core
On yet another point the advice of 25 November 2019 goes furthest. The Council writes that the memorandum "insufficiently recognises that inquiry proceedings before the Enterprise Chamber are surrounded by safeguards that satisfy article 6 ECHR", and lists them: two phases with an investigation in between, the right to be heard, the judge-commissioner, a broad circle of interested parties, three professional judges plus two expert members, and the possibility of witness evidence.
It then calls the minister's load-bearing assumption incorrect: that the shareholder is not automatically a party to inquiry proceedings. All shareholders are invariably summoned as interested parties. The Institute for Company Law at the University of Groningen reached the same conclusion by its own route: in terms of procedural safeguards the inquiry "is not inferior" to the proposed procedure.
That removed the justification on which the 2012 construction rested. The Council put two things in its place: a single originating document combining the inquiry petition with the expulsion or withdrawal claim, and designation of the Enterprise Chamber as the sole instance on the facts, the loss of two instances being "no compelling counter-argument". Both were realised in 2025. Houthoff advocated the same system in its response, including the exception for companies "listed on a stock exchange within or outside the European Union".
The alternative that failed again
Two respondents independently arrived at the same solution: scrap the simplified procedure and add expulsion and withdrawal as remedies under article 2:356 of the Civil Code. Evers Soerjatin argued this on grounds of efficiency and of the safeguard of a judicial finding of mismanagement rather than an investigator's opinion; the Institute for Company Law on the basis of its refutation of the safeguards reasoning. That is the same idea the Company Law Committee had already floated in 2004, and it was rejected again in 2023, this time on the ground that the company itself, the trade union and the advocate general would then also be able to seek expulsion (36 469, no. 3, section 6.1).
What the consultation added
Not everything the consultation produced was demolition. The opening for holders of depositary receipts was not in the preliminary draft and was argued for there. The Joint Company Law Committee pointed out that the Enterprise Chamber had shortly before applied the withdrawal regime to such holders by analogy, that this ruling created uncertainty about future cases, and that it was therefore for the legislature to provide clarity.
Wintertaling described the underlying problem. Holders of depositary receipts are "more or less trapped", because the statute does not allow the trust office to withdraw on their behalf and its board is under no obligation to do so. Those who do litigate can only do so against the trust office, with the result that if the claim succeeds all holders lose their stake, including the innocent one. That is the problem the legislature finally solved in 2024.
The road not taken: leaving without a culprit
Alongside the criticism of the construction, a second line ran through the consultation that left no trace in the final act. Several respondents argued for a ground for withdrawal or expulsion in cases of lasting disruption or serious cause, that is, without any culprit being identifiable.
The Council for the Judiciary worked this out. Smaller businesses are often a collaboration between two, three or four shareholders who are also directors, and lasting disruption frequently stems from a difference in contribution or in character. A culprit is then far from always identifiable. The Council asked whether it is fair that someone who has fallen out of favour for reasons of personal animosity must leave, and suggested that a shareholder who withdraws and thereby forces the others to buy at an inconvenient moment might reasonably receive somewhat less than market value.
Boels Zanders put the objection to the fault requirement most sharply: if a culprit is required, a lastingly disrupted collaboration must first escalate until someone crosses a line, whereas a sound dispute regime ought to prevent precisely that escalation. The Dutch Private Equity and Venture Capital Association argued the same for situations in which the disruption cannot be attributed to one shareholder, and Van Benthem & Keulen proposed that alongside culpable conduct, situations or relationships within the company should also count as grounds, with fault then weighing in the determination of the price.
The legislature held to a test that turns on conduct. Anyone seeking withdrawal or expulsion today must still identify behaviour. After the five proposals of 2007, that is the second major road not taken.
2020: what the Company Law Committee blocked and warned about in vain
Following the consultation the proposal went to the Company Law Committee, which advised on 28 September 2020. Two of its recommendations were adopted. Three warnings and one recommendation were not.
Adopted was that the widening of the ground for expulsion should not be extended to article 2:342 of the Civil Code, the procedure in which the voting right of a pledgee or usufructuary passes to the shareholder. The Committee pointed to the proper functioning of security rights: an easy circumvention of the pledge is undesirable in commercial dealings. Its advice to align withdrawal with the case law of the Enterprise Chamber, rather than amend the statutory text, was also adopted. And it is from the Committee that the clarification comes that not only commercial misconduct counts: it advised stating in the memorandum that private conduct too may harm the company's interest to such an extent that the shareholding can no longer be tolerated, with the caveat that this must then, given the protection of property, concern serious conduct. The word private individual in the memorandum can be traced to that.
On that same article 2:342 the Committee left a question that has gone unanswered. The forced transfer of the voting right carries no compensation. When the regime was introduced, the minister observed that determining the value of a voting right, if it has one, is "extraordinarily difficult, if not impossible" (Parliamentary Papers II 1984/85, 18 905, no. 3, p. 25). The Committee doubted whether that still holds and asked for attention in the memorandum to the relationship with article 1 of the First Protocol. That attention never came.
The second warning concerns precisely the most praised innovation. If the trust office is ordered to take over the depositary receipts of withdrawing holders, the odd situation may arise that no economic beneficiaries remain other than the trust office itself. Moreover such an office is generally unable to finance that acquisition on its own; it will have to be arranged with the company. The Committee advised leaving room to the courts but stating in the memorandum that financing must be an important factor. What must be avoided, it writes, is that the trust office is ordered to do something it cannot perform.
The third warning goes to the yield of the entire exercise. The Committee recalled that in 2008 the minister had held that the possibility of joining claims for damages would have to be deleted if the procedure were disposed of in a single instance on the facts. It added that the effect of that limitation to one instance will be slight if the Enterprise Chamber frequently has to use the power to sever.
One recommendation likewise failed: a study into a sell-out right for minority shareholders, the mirror image of the existing squeeze-out regime. When that regime was introduced such a right was omitted because the statutory dispute resolution was expected to remove the need, and on 1 March 1988 the minister undertook in the Senate to revisit the question once experience had been gained.
2023 and 2024: from further report to formality
The Advisory Division of the Council of State advised on 28 June 2023, and that advice touched only the memorandum. It relied for article 1 of the First Protocol solely on HR 8 December 1993, NJ 1994/273 (Van den Berg) and left the free movement of capital under article 63 TFEU undiscussed (36 469, no. 4, p. 2). The further report supplemented both, with ECtHR 14 September 2021, Pintar and others v. Slovenia, and with a justification test. The regime itself remained unchanged (36 469, no. 4, p. 3).
That the further report is dated 31 October while the bill was only introduced on 13 November 2023 has a reason apparent only from the internal decision note: the cabinet was caretaker, so the documents first had to be dealt with by the Council of Ministers.
In the House the PVV, GroenLinks-PvdA and the VVD put questions. Two of them changed the act, both through the memorandum of amendment of 10 April 2024. In response to questions from the VVD about the distinction between groups of depositary receipt holders, the minister widened the circle to all such holders, including those holding receipts issued without the company's cooperation and those without meeting rights (36 469, no. 6, p. 9 and 36 469, no. 7, p. 2). One reason was that the Enterprise Chamber had already applied the withdrawal regime by analogy to feuding receipt holders (Enterprise Chamber 24 September 2019, ECLI:NL:GHAMS:2019:3555). At the request of the same group an evaluation clause was added.
For the scope of the depositary receipt regime it is therefore the memorandum of amendment that governs, and not the explanatory memorandum, which still describes the narrow circle.
Both chambers adopted the bill as a formality, on 16 May and 4 June 2024, without debate and without a vote. No amendments were tabled. The substantive legislative history of this act therefore consists entirely of three documents: the explanatory memorandum (memorie van toelichting), the memorandum in reply (nota naar aanleiding van het verslag) and the memorandum of amendment (nota van wijziging).
2025: what it became
The procedure has moved. Expulsion, withdrawal and the transfer of voting rights have since 1 January 2025 been initiated by petition rather than by writ of summons, and are heard by the Enterprise Chamber of the Amsterdam Court of Appeal in a single instance on the facts. Only cassation lies against its decision; the district court is no longer involved. This implements what the Company Law Committee suggested in 2004, what the Council of State urged in 2007 and what the Council for the Judiciary recommended again in 2019.
Substantively the test was widened on one point. Article 2:336a(1) now provides that the Enterprise Chamber may order a transfer where a shareholder "by his conduct, whether or not in the capacity of shareholder, harms or has harmed the interest of the company to such an extent that continuation of his shareholding cannot reasonably be tolerated". The reason for dropping the capacity requirement is that it was undesirable to have to wait until the conflict spread to the general meeting (36 469, no. 3, p. 13).
How far that reaches appears from the memorandum in reply. On the PVV's question whether past conduct can be dredged up:
[A] shareholder cannot be expelled from a company solely on account of past misconduct as a director of another (competing) company. Although the bill makes it possible for such conduct to be taken into account in the context of the expulsion regime, such conduct is in itself insufficient.
(36 469, no. 6, p. 2.) The first and third steps from 1989 therefore remain in place: harm to the company's interest, followed by the balancing of interests. Only the second has gone.
The second seed of 2012 also comes to fruition in 2025, and this is where the two tracks meet. Listed companies have been taken out of the statutory dispute resolution: it now applies only to unlisted public and private companies, a delimitation added only after the consultation (36 469, no. 6, p. 8). In practice this concerns a handful of companies; of the roughly 440,315 Dutch private companies, four have shares or depositary receipts on a regulated market, and none of them has ever brought such proceedings.
At the same time, capital providers in those very listed companies gain wider access to inquiry proceedings. The new paragraph (d) of article 2:346(1) gives them, regardless of the size of the company, one per cent of the issued capital or EUR 20 million in market value as distinct alternative criteria (36 469, no. 3, p. 29). That removes the bind that arose in 2013 for listed companies with issued capital below 22.5 million. The act thus steers listed companies away from the regime intended for closely held relationships and admits them to the procedure that addresses the company itself.
In the first year the Enterprise Chamber has done with the new provisions what the legislature had in mind. It formulates the expulsion test in the words of the new first paragraph (ECLI:NL:GHAMS:2025:2275, r.o. 3.15), depositary receipt holders use their new route (ECLI:NL:GHAMS:2026:411), and the transitional law is applied strictly, the decisive point being whether the writ was validly served before 1 January 2025 (ECLI:NL:GHAMS:2025:2912, r.o. 4.2).
The power to sever that was meant to meet the 2008 objection is also being used. In September 2025 the Enterprise Chamber severed the related claims because the number of parties and the size of the dispute stood in the way of a prompt decision (ECLI:NL:GHAMS:2025:2606). That makes the Company Law Committee's warning testable: if severance becomes the rule rather than the exception, concentration in a single instance yields less than was expected of it.
Why it took eighteen years
The record answers that question, and the answer is more prosaic than a difference of principle. In 2007 the reform of private company law was not to be delayed, so only "the most pressing bottlenecks" were addressed. The rest required, in the government's words, "a more fundamental reconsideration of the statutory dispute resolution" and was deferred to a review announced by letter of 12 November 2007 (31 058, no. 6, p. 22).
After that, one objection held it up: the related claims for damages that appeared to require two instances on the facts. In 2025 that objection was sidestepped procedurally, with a power to sever. What distinguishes the Wagevoe from the 2007 bill is therefore chiefly that procedural construction.
The substantive justification added in 2012, that the shareholder is not automatically a party to inquiry proceedings, did not survive the 2019 consultation. It accordingly no longer appears in the 2023 explanatory memorandum. Indeed article 6 ECHR has changed function there: where in 2012 it explained why final transfer could not be a remedy in inquiry proceedings, in 2023 it serves to establish that a single instance on the facts suffices, because that article and article 1 of the First Protocol "do not, incidentally, require adjudication in two instances on the facts" (36 469, no. 3, p. 17).
Three threads remain loose. The sell-out right for minority shareholders, on which a review was promised in 1988, has again not materialised. The question how the forced transfer of voting rights without compensation relates to the right to property has been raised and not answered. And withdrawal without a culprit, argued for from four sides in 2019, stayed out of the act.
The act does contain its own reference point: within five years of entry into force a report on its effectiveness goes to parliament (36 469, no. 7, p. 3), so by 1 January 2030 at the latest. Given the foregoing, that is less a conclusion than the next appointment.