Impassezaken en verantwoordelijkheden binnen het enquêterecht

Promotie: dhr. F. Veenstra, 16.15 uur, Academiegebouw, Broerstraat 5, Groningen
Proefschrift: Impassezaken en verantwoordelijkheden binnen het enquêterecht
Promotor(s): prof.mr. L. Timmerman, prof.mr. M.W. den Boogert
Faculteit: Rechtsgeleerdheid
Contact: Frank Veenstra, tel. 050-363 56 12, e-mail: f.veenstra@rug.nl

Impassezaken en verantwoordelijkheden binnen het enquêterecht

The original purpose of the inquiry procedure (Articles 344-359, Book 2, Dutch Civil Code) was to protect minority shareholders, depositary receipt holders and employees of big companies against lack of openness on the part of the management and an unsatisfactory state of affairs. The inquiry procedure is precisely tailored to the realization of this purpose. This is reflected in the nature of the procedure (application proceedings with one fact-finding hearing), in the list of parties authorized to apply for an investigation to be held and for immediate measures to be taken, and the measures which can be taken if evidence of mismanagement is revealed. However, the case law shows that the inquiry procedure also has an important role as a legal instrument to break impasses between shareholders, particularly in small companies. This thesis examines whether the inquiry procedure, in view of its nature and structure and the powers of the Enterprise Division, is an appropriate instrument to break these impasses. The conclusion is that several fundamental problems arise in this connection. In several inquiry procedures the Enterprise Division has also assessed the conduct of specific executives. This has been criticized in the literature. There is concern that such assessments may acquire major significance in later liability proceedings, which is considered problematic because inquiry proceedings entail only one fact-finding hearing and no special procedural safeguards are provided for at the hearing stage. This thesis examines how and to what extent assessments made by the Enterprise Division can have an impact in liability proceedings. The conclusion is that grounds which establish individual responsibilities for mismanagement or improper management can in fact play a very significant role as evidence in such proceedings.