Introduction
The Enterprise Chamber plays a strikingly modest role in mergers and demergers. Those who think of the Enterprise Chamber think of inquiry proceedings, mismanagement and suspended directors. Not of creditors' objections or the annulment of a merger. That impression is borne out by the data: of the nearly four hundred Enterprise Chamber decisions that were analysed and in which the terms "fusie" (merger) or "splitsing" (demerger) appeared, only seven turned out to actually concern the merger and demerger regime of Book 2 DCC. The remainder were inquiry proceedings, employee participation or annual-accounts matters, with a merger or demerger merely forming the backdrop.
That is in itself a finding worth noting. The legislature has assigned the Enterprise Chamber a role in four types of dispute concerning mergers and demergers: objection by creditors, annulment of the merger or demerger, compensation of dissenting shareholders and liability questions following a demerger. Of those four categories, precisely one appears in the corpus. The other three have not yet arisen in almost fifty years of Enterprise Chamber case law, at least not in published form.
The financial-position test in creditors' objections
Section 2:316 DCC gives creditors the right to lodge an objection against a proposed merger. Since the statutory amendment of 2011, implementing Directive 2009/109/EC, that right of objection has been strictly framed in terms of the financial position. The court does not assess whether the merger is desirable, but solely whether the financial position of the acquiring legal entity after the merger offers less assurance that the claim will be satisfied. The burden of proof rests on the creditor.
The Kraaybeek case sharply illustrates that limited scope (case concerning a tenant's objection at an anthroposophical residential complex). A tenant of an anthroposophical residential complex objected to the merger of his housing foundation with a larger care foundation. He feared the loss of the parklike character owing to redevelopment plans and an erosion of the anthroposophical identity. The Enterprise Chamber upheld the rejection of the objection. The tenant had put forward nothing regarding the financial position before and after the merger. His reliance on the anthroposophical identity could not succeed either: that is not a claim arising from the tenancy agreement and therefore not an interest that Section 2:316 DCC protects.
The Enterprise Chamber framed the point as a matter of principle: the legislature has not conferred on the court the power, in the context of objection proceedings, to assess whether a merger is "desirable in a general sense" or should proceed for reasons of public interest. This was annotated in JOR 2024/64 (Verbrugh) and constitutes the clearest guidance the Enterprise Chamber has given to date on the scope of the creditors' objection following the 2011 statutory amendment.
Annulment, compensation and liability: the absent procedures
Section 2:323 DCC provides the possibility of annulling a completed merger. Section 2:334u DCC does the same for a demerger. Section 2:330a and Section 2:334bb DCC govern the compensation of dissenting shareholders. Section 2:334t DCC sets out the joint and several liability of acquiring companies following a demerger.
None of these procedures appears in the corpus. That does not mean they are irrelevant, they are far-reaching remedies that are set out in statute and discussed in the literature. But in practice they are apparently rarely, if ever, brought before the Enterprise Chamber. That may mean that mergers and demergers seldom give rise to disputes warranting these heavy-handed remedies, or that parties seek recourse before the provisional relief judge or the ordinary civil court.
Auditor designation: the actual bulk
What the Enterprise Chamber does do regularly in mergers and demergers is grant approval for the designation of the same auditor for all the companies involved (Section 2:328(3) DCC for a merger, Section 2:334aa(4) DCC for a demerger). Of the seven actual merger/demerger cases in the corpus, six are auditor designations.
The pattern is predictable: where all the shareholders are the same, approval follows almost automatically. That was the case in the merger of Eneco (Eneco merger), PPM Oost (PPM Oost merger) and the demerger at Iveco (Iveco demerger).
The exception proves the rule. In the proposed merger of eight Renpart property funds, with some thirteen hundred private investors as capital providers, the President of the Enterprise Chamber refused approval (Renpart property funds case). The interests of the investors in the various funds did not necessarily run in parallel, and the proposed safety valve (a two-thirds majority could still demand a second auditor) offered insufficient protection.
In two other cases the President declared the request inadmissible because the declarations sought each had to be made by only one of the companies involved, so that there was no "same auditor" for which approval was needed (a 2012 auditor-designation case, a 2021 auditor-designation case).
Review by the Supreme Court: mergers and demergers
The Supreme Court ruled in 2025 (Supreme Court 10 October 2025, ECLI:NL:HR:2025:1544, Optas/Aegon) that the fact that an approval decision by De Nederlandsche Bank (DNB) for a merger was subsequently reversed by the administrative court does not automatically lead to annulment of the merger. The civil-law validity of a merger is assessed as at the moment the merger took effect, not by reference to later administrative-law developments.
What does this mean in practice?
Anyone anticipating a dispute in a merger or demerger must appreciate that the Enterprise Chamber acts here almost exclusively in a procedural capacity. Since 2011 the creditors' objection has become a strictly financial-position test: those who cannot demonstrate that their claim enjoys less assurance after the merger will fail. Broader objections to the merger, however understandable, have no place there.
The heavier dispute remedies in the statute (annulment, compensation, liability) have never been deployed in the published Enterprise Chamber case law. The auditor designation is routine, unless divergent minority interests are at play. Anyone who genuinely wishes to litigate in a merger or demerger reaches the Enterprise Chamber only via inquiry proceedings, and then not about the merger itself, but about the conduct surrounding it.
Further references: PPM Oost, CNH Industrial, ING Direct/ING Bank (auditor designation).