Introduction
The squeeze-out procedure is the most predictable procedure before the Enterprise Chamber (Ondernemingskamer, OK). Whoever holds 95% of the shares can compel the remaining shareholders to transfer their shares. In the 123 squeeze-out cases analysed, not a single squeeze-out claim has so far been dismissed on the merits. The only cases that fail founder on formal defects on the claimant's side.
That shifts the battle to something else: the price. And that is precisely where the Enterprise Chamber protects the minority shareholder, not by blocking the squeeze-out, but by correcting the price. A party that has hollowed out the shares pays as though that had not happened. A party that claims a symbolic amount is faced with the appointment of an expert. A majority shareholder that withholds relevant information is called to order under Section 21 DCCP. This protection through the price is the common thread running through fifty years of squeeze-out case law.
Two legal bases, two thresholds
The squeeze-out right has two statutory bases. Section 2:92a DCC (for public limited companies, NVs) and Section 2:201a DCC (for private limited companies, BVs) give a 95% shareholder the right to buy out the minority. The threshold is 95% of the issued capital, and the claimant must summon all remaining shareholders.
Since 2008 there is also Section 2:359c DCC, specifically for a squeeze-out following a public offer. The threshold there is also 95%, but the section contains a particularity: if more than 90% of the shareholders have accepted the offer, the offer price is presumed to be fair. That 90% rule is decisive in practice. In most post-offer squeeze-out procedures the Enterprise Chamber need only check whether the 90% presumption applies, after which the offer price is fixed without an expert investigation.
The first application of Section 2:359c was the Danone/Numico case (2008). There the Enterprise Chamber laid down the core rules: the company need no longer be listed at the time of the claim, the 95% threshold need not have been reached through the offer itself, and for the 90% presumption only acceptance of the offer counts, not shares acquired through stock-exchange purchases. Those rules apply unchanged.
The 95% threshold: examined of its own motion, strictly enforced
The Enterprise Chamber examines of its own motion whether the 95% threshold has been reached, even where the defendant does not appear. This requires a notarial statement or a chartered accountant's (RA) statement with a specific reference date and method. Where that substantiation is absent, the claimant is inadmissible, however evident the shareholding may in reality be.
In the Venidero case the claimant was declared inadmissible because the CPA statement gave neither a method nor a reference date (Venidero case). In Hoogeweide/EPA not all shareholders had been summoned and the Enterprise Chamber held that depositary receipt holders are not shareholders within the meaning of Section 2:201a DCC, the company should have summoned its depositary receipt holders as shareholders of the trust office foundation (STAK) (Hoogeweide/EPA case). In BDC Holding the issued capital could not be established unambiguously because of contradictions between the notarial deed and the notarial statement, and 32 of 80 known shareholders had not been summoned (BDC Holding case).
In post-offer squeeze-outs under Section 2:359c the calculation of the acceptance rate is a recurring point of dispute. The Royal Reesink judgment established the rule that directors and supervisory directors are left out of the calculation, because they are not deemed to be in the same position as the other shareholders who accepted the offer (Royal Reesink judgment). The Tennessee/Ten Cate judgment tightened the requirements for the notarial statement further: reservations such as "assuming that the information provided is correct" do not suffice, because the Enterprise Chamber then cannot establish that the notary actually verified the underlying documents (Tennessee/Ten Cate judgment).
Grounds for dismissal: hopeless in form, relevant in substance
Section 2:92a(4) DCC provides three grounds for dismissal: serious material damage, insufficient security for payment, and the holding of a special control right. In practice, reliance is placed almost exclusively on the first ground. In none of the cases analysed has that reliance led to dismissal of the squeeze-out claim, but the reasoning for rejecting it is often more relevant than the operative part.
In the Brokking's/Fuikebrug case the defendant argued that, when acquiring his 4.98% stake, he had been promised that he would be a "shareholder for life". The Enterprise Chamber rejected the defence: such a promise cannot constitute a waiver of a statutory right to a squeeze-out, because the squeeze-out right belongs not to the defendant but to the majority shareholder. Waiving a right that does not exist is no waiver (Brokking's/Fuikebrug case). In the Shell/Cicerone case the defendant contended that Shell had undertaken in arbitration proceedings not to pursue a squeeze-out. The Enterprise Chamber held that this undertaking, in so far as it had been given at all, did not qualify as a waiver of right because it was not unconditional and had been given in a different procedural context (Shell/Cicerone case).
At PP Groep the reliance on a special control right was rejected. The defendant held former priority shares, but these had been converted into ordinary shares in earlier inquiry proceedings, and the conversion resolution had not been annulled. No special right any longer, so no ground for dismissal (PP Groep case).
The Sirowa case shows the pattern most sharply. The majority shareholder, as director, had systematically hollowed out the company: selling profitable subsidiaries below market value to an entity of its own, granting non-commercial loans, reducing the nominal value of the shares. The defendant relied on abuse of right. The Enterprise Chamber rejected that defence, the squeeze-out right is a statutory right that does not lapse through the claimant's conduct. But the Enterprise Chamber did take the hollowing-out into account in fixing the price: the expert had to value the shares as though the prejudicial acts had not taken place (Sirowa case). The squeeze-out goes ahead, but the price corrects the misconduct. That is the essence of how the Enterprise Chamber protects the minority shareholder.
Appearing pays off, but only for those who dispute the price
The vast majority of squeeze-out cases end in default. The defendant does not appear, the Enterprise Chamber fixes the price claimed, and the case is disposed of. Appearing without disputing the price (reference to the court's judgment) does not help either: in the Qmulus/Capita case the Enterprise Chamber held that, where a defendant appears and refers the matter to the Enterprise Chamber's judgment, no price review of its own motion is required. A party that appears must actually dispute the price to compel an expert investigation, and that structurally yields a higher price than the one claimed.
The Fortuna Entertainment Group case illustrates this most sharply. Fortbet bought out the minority shareholders of the Eastern European gaming company Fortuna in default for €7.83 per share. Subsequently 67 Czech and Polish shareholders lodged opposition, substantiated by a Sman report showing a value of €11 to €14 per share. The Enterprise Chamber moreover held that Fortbet should have disclosed the Q1 2018 results, including a 924% rise in profit, under Section 21 DCCP. The squeeze-out price of €7.83 was no longer fixed, and an expert investigation followed (the Fortuna opposition proceedings).
The pattern repeats. In Oranjewoud/VolkerWessels the price claimed was €6.10 on the basis of a fairness letter from Talanton, but the Enterprise Chamber found it insufficiently transparent about the valuation method used and ordered an expert investigation (the Oranjewoud/VolkerWessels squeeze-out). At SnowWorld the valuation report by Axeco was based solely on public information without management input; there too the Enterprise Chamber appointed an expert (the SnowWorld squeeze-out procedure). In Cooltra/Felyx a squeeze-out price of €0.02 per share was claimed following an emergency takeover. The Enterprise Chamber held that even at a near-zero value an independent valuation is required, referring to Article 1 of the First Protocol to the ECHR: the price must be "reasonably related to its value" (the Cooltra/Felyx emergency takeover).
Fixing the price: reference date, method and the 90% presumption
In post-offer squeeze-outs the 90% price presumption dominates. If more than 90% of the shareholders addressed have accepted the offer, the offer price is presumed to be fair. That presumption is virtually irrebuttable in practice. The Flora/NIBC case illustrates this: minority shareholders disputed the fairness of €7 per share (reduced from €9.85 because of COVID-19) and pointed to the price recovery of other bank shares. The Enterprise Chamber rejected the defence: a broadly accepted price is fair, even if market conditions change after the offer (the Flora/NIBC case (2022)). The Supreme Court upheld this (the cassation judgment in the NIBC case (2023)).
In squeeze-outs outside a public offer the valuation method depends on the type of undertaking. For operating companies the DCF method is standard. In the Vodafone Libertel final judgment the Enterprise Chamber determined the composition of the peer group and excluded KPN because KPN's profile differed too strongly from that of Libertel, a decision that affected the valuation by millions (the Vodafone Libertel final judgment (2006)). For real estate funds the Enterprise Chamber applies the NNNAV (triple net asset value) method, as in the Unibail/Rodamco case where three experts made a detailed update of the triple net asset value (the Unibail/Rodamco case (2011)). For unlisted companies the APV method is often used: in the Teleplan case the expert valued the shares at €2.45 on the basis of a bank case as a forecast, with the Enterprise Chamber rejecting the objections of both parties (the Teleplan case (2017)).
The reference-date rule since Unit4
The reference date, the moment as at which the shares are valued, was for a long time the date of the interim judgment. That led to problems: uncertainty about the duration of the proceedings, interim dividend distributions and confidentiality issues in the expert investigation.
The Unit4 judgment put an end to that in 2015 (the Unit4 judgment (2015)). Since then the starting point is that the reference date is the date on which the offer price was made payable under the offer, provided the offeror held at least 95% at that moment. That rule is now settled case law and has been confirmed in cassation in the NIBC case.
The DSM-Firmenich judgment extended the rule to exchange offers: there too the making-payable serves as the reference date. It also established a second precedent: dividend distributions are deducted gross from the squeeze-out price, not net after deduction of dividend withholding tax (the DSM-Firmenich judgment (2024)).
The offer price cannot always serve as the yardstick. In the Volker Wessels Stevin case the Enterprise Chamber held that, owing to the lapse of time after the public offer (the offer price was €21 in 2003, the squeeze-out procedure ran in 2006), the offer price could no longer be relied on because market conditions had changed materially (the Volker Wessels Stevin case (2006)).
The expert: hearing both sides as a hard limit
The Enterprise Chamber routinely appoints an expert where the price is disputed. Usually this is a registered valuator; in complex cases a panel of three (Unibail, ABN AMRO, Volker Wessels Stevin). The budget ranges from €15,000 to more than €100,000, and the costs are borne by the claimant, the 95% shareholder. For the minority shareholder disputing the price, the expert investigation is therefore free of charge.
The greatest complication is hearing both sides (audi alteram partem). In the Teleplan case the Enterprise Chamber set aside the first expert report in its entirety. The reason: the claimant had, outside the parties' arrangements, withdrawn outdated financial projections and supplied new ones, after which the expert rewrote his report without the defendant having seen the new input or having been able to respond to it. The Enterprise Chamber held that this so fundamentally breached the principle of hearing both sides that the report could not serve as the basis for fixing the price (the Teleplan case (2015)).
In the DIM Vastgoed case a related problem arose: the 95% shareholder had provided confidential business information to the experts without disclosure to the defendants. The Enterprise Chamber held that Article 6 ECHR requires the defendants to receive the same information as the experts, subject to a duty of confidentiality under Section 29 DCCP. Equality of arms applies in the squeeze-out procedure too (the DIM Vastgoed case (2014)).
Interaction with inquiry proceedings and the mandatory offer
The squeeze-out procedure does not stand alone. In the XBC/Xeikon case the Enterprise Chamber stayed the squeeze-out pending a mismanagement petition in parallel inquiry proceedings. The Enterprise Chamber held that the defendant's interest in coordination between the two procedures outweighed the claimant's interest in a swift resolution (XBC/Xeikon case). A party preparing a squeeze-out claim while an inquiry is pending must reckon with delay.
In the Casino/Cnova case the Enterprise Chamber first granted FRH an exemption from the mandatory offer, on condition that a squeeze-out claim would be brought within four months (Casino/Cnova exemption decision (2024)). The squeeze-out that followed then applied a divergent reference date, derived from the hypothetical moment at which a French mandatory offer would have been declared unconditional (Casino/Cnova squeeze-out decision (2025)).
Cross-border squeeze-out
In the Thales/Gemalto case the Enterprise Chamber held that it has exclusive jurisdiction in squeeze-out procedures under Article 24 of the Brussels I bis Regulation, even where the defendants live abroad. The squeeze-out procedure concerns the validity of decisions of the organs of a company, regardless of whether there is formally an organ resolution underlying it (Thales/Gemalto case (2019)).
In the Digital Turbine/Fyber case the Enterprise Chamber applied the fair price under German law (WpUG), because the listing was in Frankfurt and the offer had been made under German takeover law. The Enterprise Chamber held that the law of the country of listing determines the fair price, not Dutch law (Digital Turbine/Fyber case (2022)). The ABN AMRO squeeze-out remains the largest in Dutch history: RFS Holdings (the consortium of RBS, Fortis and Santander) bought out the remaining shareholders for €37.88 per ordinary share, with the RBS share component valued at the price on the day the offer was made payable (ABN AMRO squeeze-out case (2008)).
Review by the Supreme Court: squeeze-out procedures
The Supreme Court held in 2021 that the legal relationship between the party effecting the squeeze-out and the shareholders to be bought out is procedurally indivisible under Section 2:92a DCC. This means that a cassation appeal against some but not all shareholders leads to annulment as against all of them. The reference date for determining the price in a squeeze-out following a public offer has been confirmed in cassation: the moment of the offer, not of the judgment.
What does this mean for shareholders and offerors?
The squeeze-out procedure is a one-way street. Whoever holds 95% obtains the remaining shares. The protection of the minority shareholder lies not in the possibility of blocking the squeeze-out, which has so far never succeeded in any case, but in the fixing of the price.
For offerors, the substantiation of the 95% threshold must be watertight. A notarial statement with reservations, an incomplete writ of summons or a contradiction in the shareholders' register leads to inadmissibility. Those formal defects are the only reason squeeze-out claims fail.
For minority shareholders there is a choice. A party that does not appear accepts the price claimed. A party that appears and disputes the price compels an expert investigation that usually leads to a higher price. The costs of appearing are limited; the potential return is considerable.
For advisers the reference-date rule since Unit4 is predictable: the date on which the offer price was made payable. A party that has engaged in misconduct as a majority shareholder pays for it through the "as though" correction in fixing the price.
A complete reference overview contains all 123 squeeze-out cases arranged by legal question, with a Leading/Confirming classification.