{"id":108168,"date":"2025-07-10T13:45:51","date_gmt":"2025-07-10T13:45:51","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=108168"},"modified":"2025-08-20T15:29:54","modified_gmt":"2025-08-20T15:29:54","slug":"the-netherlands-shareholder-activism","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/the-netherlands-shareholder-activism\/","title":{"rendered":"The Netherlands: Shareholder Activism"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-108168","comparative_guide","type-comparative_guide","status-publish","hentry","guides-shareholder-activism","jurisdictions-the-netherlands"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Finch Dispute Resolution<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2025\/06\/logo_tagline_alt_color.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Finch Dispute Resolution<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2025\/06\/logo_tagline_alt_color.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Shareholder Activism laws and regulations applicable in The Netherlands<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the principal sources of laws and regulations relating to shareholder rights and activism? Do insider trading and\/or market abuse rules apply to activist activity?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Dutch law, shareholder rights and activism are primarily governed by the following sources:<\/p>\n<ol style=\"padding-left: 0\" type=\"i\">\n<li>Book 2 of the Dutch Civil Code [DCC] (<em>Burgerlijk Wetboek<\/em>)<\/li>\n<li>Dutch Corporate Governance code 2025 [<em>DCGC 2025<\/em>]<\/li>\n<li>Financial Markets Supervision Act [Wft] (<em>Wet op het financieel toezicht<\/em>)<\/li>\n<li>European Union Regulations<\/li>\n<\/ol>\n<p>Activist shareholders must comply with the Market Abuse Regulation (Regulation EU No 596\/2014) [MAR], which prohibits the use of inside information when dealing in securities or unlawfully disclosing such information. It also prohibits manipulative practices that could distort the market.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How is shareholder activism viewed in your jurisdiction by regulators, shareholders (both institutional and retail) and the media?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Shareholder activism is generally accepted and considered a legitimate part of corporate governance, as long as it is conducted within the boundaries of reasonableness and fairness, as prescribed by Article 2:8 DCC. Regulators, such as the Dutch Authority for the Financial Markets [AFM], tend to adopt a neutral to positive stance towards activism, provided that activists comply with transparency requirements, including disclosure obligations related to substantial shareholdings. Institutional shareholders have become increasingly active in recent years, particularly on issues related to environmental, social and governance (ESG) matters. The media coverage in the Netherlands tend to be critical yet balanced, recognizing the importance of shareholder rights and the potential benefits of activism while remaining cautious of confrontational or disruptive tactics. Overall, shareholder activism in the Duch context is viewed as a constructive and accepted mechanism to influence corporate policy an promote accountability, as long as it is exercised responsibly and transparently.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How common are activist campaigns and what forms do they take? Is activism more prevalent in certain industries?  If so why?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the Netherlands, activist campaigns are relatively less common compared to markets like the United States, but their presence has been growing steadily over the past decade. Activism typically takes the form of shareholder proposals, public campaigns to influence management decisions, and engagement through dialogue with company boards. Activists often focus on issues such as corporate governance, environmental and social policies (ESG), and strategic or financial matters like mergers, acquisitions, or dividend policies. Overall, while activism in the Netherlands is still developing, it is increasingly recognized as an important tool for shareholders to influence company policies and to promote long-term value creation.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How common is it for shareholders to bring litigation against a company and\/or its directors and what form does this take?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Shareholders litigation against a company and\/or its directors occurs with some regularity and typically takes the form of proceedings before the Enterprise Chamber of the Amsterdam Court of Appeal, through a so-called inquiry proceedings (<em>enqu\u00eateprocedure<\/em>). This allows shareholders to request an investigation into the company\u2019s policy or conduct. Other forms of shareholder litigation may include claims for damages or motions to annul shareholder resolutions.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What rights do shareholders\/activists have to access the register of members?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Dutch corporate law, shareholders of both public limited companies [<em>NV<\/em>] and private limited liability companies [<em>BV<\/em>] are entitled to inspect the register of shareholders maintained at the company\u2019s registered office (Articles 2:194(5) and 2:85(4) DCC). This right of inspection is also granted to usufructuaries and pledgees who are entitled to exercise voting rights under Articles 2:88(4), 2:89(4) and 2:227(2) DCC and, as regards the BV, holders of depository receipts to whom the right to attend the general meeting has been granted. The register may be kept, in whole or in part, in electronic form.<\/p>\n<p>In principle, the right of inspection extends to the entire register. However, one exception applies with regard to the NV: the right does not extend to those parts of the register that are maintained outside the Netherlands to comply with foreign legal requirements or stock exchange regulations.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What rights do shareholders have to requisition a shareholder meeting and to table a resolution at the meeting?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><u>Requestion of a general meeting<\/u><\/p>\n<p>The general rule is that only the management board and the supervisory board are authorized to convene a general meeting of shareholders. However, this authority may also be granted to others, such as shareholders, pursuant to the articles of association (Articles 2:109 (regarding the NV) and 2:219 (regarding the BV) DCC).<\/p>\n<p>If the authority to convene a general meeting has not been granted to shareholders by the articles of association, one or more shareholder(s) who individually or jointly hold at least 10% (with a NV) or 1% (with a BV) of the issued share capital, or a lower percentage if so provided in the articles of association, may request the management board and supervisory board (if present) to convene a general meeting. This request must be submitted in writing and must specify the matters to be addressed. The management and supervisory board may refuse such a request if there is a compelling interest of the company opposing the convening of the meeting (Articles 2:110 (for the NV) and 2:220 (for the BV) DCC).<\/p>\n<p>If the board fails to convene the requested meeting within eight weeks (for a listed NV), six weeks (for a non-listed NV) or four weeks (for a BV), the requesting shareholder(s) may seek authorisation from the district court to do so themselves.<\/p>\n<p><u>Right to table a resolution \/ place an item on the agenda<\/u><\/p>\n<p>Shareholders holding at least 3% of the issued share capital in a NV or 1% of the issued share capital in a BV may request the inclusion of an item on the agenda of a general meeting (Articles 2:114a (NV) and 2:224a (BV) DCC). Such requests must be submitted in writing and no later than the sixtieth day (at a NV) or thirtieth day (at a BV) prior to the meeting. The articles of association may lower the required shareholding threshold and shorten the deadline for submitting such requests.<\/p>\n<p>Dutch courts have clarified the scope and limited of this rights:<\/p>\n<ul style=\"padding-left: 0\">\n<li>In Boskalis\/Fugro (Supreme Court 20 April 2018, ECLI:NL:HR:2018:652), the Supreme Court held that the shareholders may request discussion of strategic matters (e.g. governance structure), but cannot force the board to put such topics to a vote if they fall outside of the competence of the general meeting.<\/li>\n<li>In Elliot\/Akzo Nobel (District Court of Amsterdam 10 August 2017, ECLI:NL:RBAMS:2017:5845), the court held that the shareholder right to place items on the agenda is not absolute. It must be exercised reasonably, with proper timing, and in line with the company\u2019s interests.<\/li>\n<\/ul>\n<p>Furthermore, listed companies often include a clause in their articles of association stipulating that certain items can only be placed on the agenda at the initiative of the board of directors (\u2018right of initiative\u2019) or with the prior approval of the supervisory board. In addition, the board of directors may invoke the response time as provided in Section 4.1.6 of the DCGC 2025 when the proposed agenda items concern the company\u2019s strategy. The response time, which may last up to 180 days, serves as an instrument for the board of directors to allow for further consideration, engage in constructive dialogue \u2013 at a minimum with the relevant shareholders \u2013 and explore possible alternatives. There is academic debate as to whether the right of initiative and the response time are incompatible with the right to place items on the agenda. The majority view in the literature holds that these mechanisms are not contrary to the shareholders\u2019 right to have matters placed on the agenda.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Where a shareholder requisitions a meeting, who is responsible for the costs of calling and holding the meeting?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>There is no explicit provision that regulates who is responsible for the costs when a meeting is held at the request of shareholders or when shareholders convene a meeting themselves. Generally, costs are borne by the company as part of ordinary corporate governance expenses.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any rights to circulate statements to shareholders?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>As mentioned in our answer to question 2b, shareholders who meet a certain threshold have the right to request the inclusion of items on the agenda of the general meeting. Along with such a request, shareholders are also entitled to submit a written explanation or statement, which the company must then circulate to the other shareholders provided the request is submitted in a timely manner. This means that the right to circulate a statement is connected to the right to propose an agenda item. Dutch law does not provide a general right for shareholders to send communications or statements to fellow shareholders outside the context of a formal general meeting request.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Who is entitled to attend and speak at a shareholders\u2019 meeting?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Every shareholder has the right to attend the general meeting, speak, and vote, either in person or by written proxy (Articles 2:117(1) (NV) and 2:227(1) (BV) DCC). Meeting rights are not limited to shareholders: holders of depositary receipts issued with the company\u2019s cooperation (Articles 2:117(2) and 2:227(2) (BV) DCC), as well as pledgees and usufructuaries may also have such rights. Directors and supervisory directors also have the right \u2013 and in listed companies the obligation \u2013 to attend the general meeting. Their role is to provide information, explain policy decisions, and respond to questions from shareholders. The general meeting is not public by default, but may admit other attendees if the articles of association allow it. In NV\u2019s, the external auditor has the right to attend (Article 2:117(5) DCC). Other who may be granted access include notaries, lawyers, press and work council representatives.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What percentage of share capital is needed to appoint or remove a director?  What is the process?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A absolute majority (&gt;50%) of the votes cast is sufficient to appoint or dismiss a director, unless the articles of association require a higher quorum or majority (Articles 2:120(1) NV) and 2:230(1) (BV) DCC). If the articles of association stipulate that a resolution to dismiss a director must be adopted by a qualified majority in a general meeting and that a certain portion of the share capital must be represented at that meeting, then (i) the qualified majority cannot exceed two-thirds of the votes cast and (ii) this two-thirds majority must represent more than half (50%) of the issued share capital (Articles 2:134(2) (NV) and 2:244(2) (BV) DCC).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What percentage of share capital is needed to block a shareholder resolution?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The percentage of share capital required to block a shareholder resolution depends on the type of resolution and the applicable legal or statutory provision. For ordinary resolutions in the general meeting, decisions are generally made by an absolute majority of votes cast (more than 50%) (Articles 2:120(1) NV) and 2:230(1) (BV) DCC). For special (extraordinary) resolutions, such as amendments to the articles of association or decisions involving mergers or capital changes, a qualified majority is required, typically at least two-thirds (66,63%) or three-quarters (75%) of the votes cast. In practice, many Dutch companies set specific quorum and majority thresholds in their articles of association, which may be stricter than the statutory minimums.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do holders of other instruments (e.g. options, warrants, contracts for difference, swaps, cash-settled derivatives) have any of the above rights?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>No. Under Dutch law, only holders of shares have the shareholder rights attached to those shares, either by law or by the company\u2019s articles of association. Holders of other instruments, such as options, warrants, contracts for difference, swaps, cash-settled derivatives, do not hold shares and therefore do not possess shareholder rights. These instrument grant rights derived from or linked to shares but do not confer ownership of shares themselves.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is stamp duty payable on share acquisitions?  Can this be avoided\/mitigated (e.g. through use of derivatives)?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the Netherlands, there is no stamp duty on the transfer of shares.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To what level can you acquire shares without having to publicly (or privately) disclose your position?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Dutch law, a notification obligation applies as soon as a shareholder acquires or passes a stake of 3% or more in a listed company. This notification obligation is laid down in Article 5:38 of the Wft. Notifications must be made to the Financial Markets Authority [AFM]. The notification obligation applies to both direct and indirect interests and also applies when higher thresholds (5%, 10%, 15%, et cetera) are exceeded. Then a new notification must be made. Notifications are made public in the AFM&#8217;s register.<\/p>\n<p>As long as a party holds less than 3% of the issued capital or voting rights, there is no legal obligation to disclose the stake. This means that an activist shareholder can quietly build up a position to just below this limit.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is the disclosure threshold different if the issuer is subject to a takeover offer?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>No, the 3% notification threshold for substantial holdings in a listed company remains unchanged, even when the company is the subject of a (hostile) takeover bid. However, as soon as a party acquires predominant control in a listed company, an obligation to make a public offer for the remaining shares arises (Article 5:70 Wft). Predominant control exists if the person, whether or not together with others, can directly or indirectly dispose of at least 30% of the votes in the general meeting of a listed company.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any rules which restrict the speed at which you can build a position?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Dutch law, there are no specific rules restricting the speed with which a party builds up an equity position in a listed company. However, rapid accrual can lead to multiple notification obligations in a short period of time when exceeding the aforementioned thresholds (3%, 5%, 10%, et cetera). Also, the trading (by which the position is built) should meet the transparency and fairness obligations. If an activist builds a position quickly and, in doing so, acts in violation of market abuse laws (such as insider trading or deception under the MAR), this may result in a restriction.<\/p>\n<p>Finally, it is relevant that if several parties jointly build up a position for the purpose of control, they are deemed to act as one party. Their joint interest then counts for disclosure thresholds and the 30% limit for a mandatory public offer (Article 5:70 Wft). This may limit the speed with which a position is built.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there circumstances in which a mandatory takeover is required?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. If a party acquires 30% or more of the voting rights in a listed company, it is obliged to make a mandatory public offer for all outstanding shares (Article 5:70 Wft). This is intended to provide other shareholders an option to exit.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does collective shareholder action or \u2018acting in concert\u2019 have any consequences in your jurisdiction (e.g for disclosure purposes or the rules on mandatory offers)?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. If shareholders act jointly for the purpose of acquiring control, they are deemed to be acting as a single party. Their joint interest then counts towards the disclosure thresholds and the 30% limit for a mandatory bid. This is regulated in Article 5:70(5) Wft and the underlying regulations.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do the same rules and thresholds apply to other instruments (e.g. options, warrants, short positions, contracts for difference, swaps, cash-settled derivatives)?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. The notification obligation also applies to financial instruments that give access to, or an economic exposure to, shares, such as cash-settled derivatives, options, warrants and swaps. These are taken into consideration when determining the interest required to be disclosed (Article 5:45 lid 10 Wft).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">If an activist makes a takeover offer, what impact might any prior share purchases have on the minimum offer price or the form of consideration that must be offered?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>If an offeror (whether an activist or not) bought shares prior to an offer, the highest price paid in the previous 12 months must be offered to other shareholders as the minimum offer price (Article 5:80 Wft). This prevents a bidder from buying up shares cheaply and then making a lower offer.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What measures are available to companies to protect against an activist campaign?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Dutch companies often use legal protection measures, such as:<\/p>\n<ul style=\"padding-left: 0\">\n<li>Issuance of preference protective shares to an independent foundation (<em>Stichting Preferente Aandelen<\/em>). This foundation can obtain temporary voting rights to block hostile takeovers or activist pressure.<\/li>\n<li>Certification of shares through a <em>Stichting Administratiekantoor<\/em> (STAK), separating voting rights from economic rights.<\/li>\n<li>Call options on preference shares that can be activated in the event of a threat.<\/li>\n<\/ul>\n<p>These constructions are allowed as long as they are proportionate and in the interest of the company and its stakeholders.<\/p>\n<p>A relatively new protection option is provided by the cooling-off period of Article 2:114b of the DCC. This allows listed companies to temporarily resist pressure from activist shareholders or hostile takeover attempts. The cooling-off period lasts up to 250 days and allows the board of a listed company to postpone certain shareholder resolutions. This allows the board to use the time to respond carefully to proposals that may not be in the best interests of the company. A company can invoke a cooling-off period if:<\/p>\n<ol style=\"padding-left: 0\">\n<li>A shareholder makes an agenda request for the general meeting that focuses on:\n<ul style=\"padding-left: 5\">\n<li>The resignation of one or more directors or supervisory directors,<\/li>\n<li>A change in governance structure, or<\/li>\n<li>A fundamental change in strategy.<\/li>\n<\/ul>\n<\/li>\n<li>A hostile takeover bid is announced or expected.<\/li>\n<\/ol>\n<p>The measure is intended to give the board of directors room to explore alternatives, consult stakeholders and determine a well-considered strategy. Shareholders facing an invoked cooling-off period can request the Enterprise Chamber of the Amsterdam Court of Appeal to terminate the cooling-off period if they believe it has been unjustly invoked.<\/p>\n<p>Finally, it is possible to provide for statutory protections, for example by introducing:<\/p>\n<ul style=\"padding-left: 0\">\n<li>Loyalty shares: Shares with additional voting rights for long-term investors.<\/li>\n<li>One-tier board: Board model with executive and non-executive directors in one body, allowing faster decision-making.<\/li>\n<li>Limitation of agenda-setting rights: the threshold for shareholders to put items on the agenda can be raised in the articles of association (to max 3% of the capital).<\/li>\n<\/ul>\n<p>These measures must comply with the principles of reasonableness and fairness (Art. 2:8 of the Civil Code) and must not violate the Corporate Governance Code.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What duties do directors owe to a company and its shareholders?  Highlight any that are particularly relevant in the context of an activist campaign.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Directors of a Dutch company have a number of fundamental obligations that become extra relevant when an activist shareholder comes forward. These obligations are laid down in the Book 2 of the DCC, the DCGC 2025 and are further clarified by case law from the Enterprise Chamber, among others. The most important duties are listed below:<\/p>\n<ol style=\"padding-left: 0\">\n<li>Directors must perform their duties properly. This means that they must act carefully, competently and diligently, make decisions based on careful consideration of interests and bear responsibility for the policy and affairs of the company. Thus, in the face of activist pressure, directors should not indiscriminately go along with shareholder demands but test them against the corporate interest.<\/li>\n<li>The board should focus on the long-term interests of the company and its stakeholders (such as employees, customers, suppliers and shareholders). This means that the board should not exclusively serve the interests of shareholders, and short-term pressure from activists should be balanced against the continuity and strategy of the company.<\/li>\n<li>So when an activist shareholder comes forward, the board should take the activist&#8217;s proposals seriously, but also test them against the corporate interest, examine alternatives and consult stakeholders, and properly document how decisions were arrived at (for possible review by the Enterprise Chamber).<\/li>\n<\/ol>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What rights does a company have to require parties to disclose details of their interests (direct and indirect) in the company\u2019s share capital?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The company itself has no direct power to require shareholders to disclose their interests. This is done through the duty to report certain shareholding positions (with several thresholds) to the AFM (Article. 5:38 Wft). The AFM publishes these disclosures in the \u2018register of substantial holdings\u2019. In addition, listed companies can use the Shareholder Rights Directive II, which allows identification of shareholders through intermediaries. SRD II requires member states to ensure that listed companies have the right to identify their shareholders, provided they hold a certain percentage of the share capital. In the Netherlands, this right is implemented in the Wft. In it, intermediaries are required to pass on the identity of shareholders to the company, but also to pass on information from the company to shareholders so that they can exercise their rights (such as voting at the general meeting).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there restrictions on companies selectively disclosing inside information to activists?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. Under the MAR (EU No 596\/2014), strict rules apply to the sharing of price-sensitive information (inside information), including in the context of communications with activist shareholders. In principle, selective disclosure is prohibited unless it is done in the normal course of business and under strict conditions (such as an NDA and insider list registration). Selective disclosure to activists without a valid reason can be considered market abuse. In practice, one sees a company, for example:<\/p>\n<ul style=\"padding-left: 0\">\n<li>Inviting an activist to talk about strategy or governance;<\/li>\n<li>Share information that is not price sensitive (such as ESG policy, long-term vision); or<\/li>\n<li>Only share price-sensitive information under an NDA and with inclusion on the insider list.<\/li>\n<\/ul>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are settlement agreements between a company and an activist permitted in your jurisdiction?  How common is it for activist campaigns to be resolved in this way?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, settlements or agreements between a company and an activist shareholder are permissible. These can be about, for example:<\/p>\n<ul style=\"padding-left: 0\">\n<li>Withdrawing agenda items;<\/li>\n<li>Obtaining a seat on the supervisory board;<\/li>\n<li>Adapting the strategic policy.<\/li>\n<\/ul>\n<p>Although there are no official statistics, in practice this occurs regularly, especially in larger listed companies. Such agreements are often kept confidential unless disclosure is required under MAR or the Wft.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">3752<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/108168","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=108168"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}