The legal provisions on corporate dispute resolution ("geschillenregeling"/"procédure de résolution des conflits internes" ) cases do not contain any guidelines regarding the price to be paid for the shares to be transferred. Since the introduction of the procedure in 1995, case law and legal scholars have adopted very divergent views on the moment at which the shares should be valued (the "reference date"). This moment can be of great interest to the shareholders concerned, since the value of the shares may fluctuate depending on the time of evaluation. In its judgment of 20 February 2015, the Court of Cassation ("Hof van Cassatie"/"Cour de Cassation") appears to have settled the debate concerning the reference date, leaving a large degree of appreciation to the judges on the merits, allowing them to take into account the specific circumstances of the case.
The judgment of the Court of Cassation of 20 February 2015 can only be understood in the light of the Court's previous case law of 2010, 2012 and 2014. This case law had led to several comments by legal scholars because of the numerous questions to which it gave rise. For a good understanding of the latest judgment of the Court of Cassation in corporate dispute resolution cases, its previous judgments of 9 December 2010, 5 October 2012 and 21 February 2014 are briefly summarised below.
From the judgments of 9 December 2010 (on exclusion ("uitsluiting"/"exclusion")) and 5 October 2012 (on resignation ("uittreding"/"retrait")), one could deduce two principles concerning the reference date and the method of evaluation:
- the shares should be valued at the date of their transfer, as ordered by the judge, since the right to payment of the price arises at the date of transfer of ownership;
- the evaluation must be done on a going concern basis, and the judge should disregard both the circumstances that led to the claim and the behaviour of the parties as a result of the claim.
The scope of these principles, although clear at first sight, has led to considerable debate in practice.
Amongst other questions, the question arose how the word "disregard(ing)" needed to be interpreted.
In its judgment of 9 December 2010, the Court of Cassation seemed to interpret this expression as a prohibition against correcting the objective evaluation on the date of the transfer in view of the influence of the legitimate reason(s) and the behaviour of the parties during the proceedings respectively.
In its judgment of 5 October 2012, the Court of Cassation clearly interpreted "disregarding" in a different way, as an obligation to eliminate, in the evaluation, the (mostly negative) elements resulting from the legitimate reason(s) or from the behaviour of the parties during the proceedings.
In its judgment of 21 February 2014, the Court of Cassation confirmed this second interpretation and applied this interpretation to a claim for exclusion. Thus, the Court of Cassation stated that, in a claim for exclusion, "disregarding" must also be interpreted as allowing the judge to correct the value by eliminating the legitimate reason(s) or the behaviour of the parties.
In its judgment of 20 February 2015, the Court of Cassation confirmed, in a resignation case, the interpretation of its judgment of 21 February 2014 in very clear terms. In particular, this judgment states (for the first time) that the evaluation on the date of the transfer only counts "in principle", and that this evaluation must be corrected to neutralise the influence of the conflict on the value of the shares. Furthermore, the Court of Cassation acknowledged that moving the reference date can be an allowable technique to neutralise the influence of the conflict on the value of the shares.
This judgment thus confirms that the reference date in resignation cases may be situated before the date of the transfer of the shares, provided that this can be justified by the specific circumstances of the case. Hence, this judgment brings to an end the debate that arose after the Court's judgments of 9 December 2010 and 5 October 2012 and leaves a broad margin of appreciation to the judge on the merits.
It is expected that this judgment will be welcomed in practice and will take away one – important – issue concerning the evaluation of the shares in corporate dispute resolution cases.
However, it is beyond dispute that this judgment will not end all discussion. In particular in a claim for exclusion, the judgment of 21 February 2014 still gives rise to questions. One could, indeed, deduce from that judgment that a party claiming exclusion due to a legitimate reason which led to a decline in the value of the shares would first have to pay a higher price for the shares and then introduce a separate claim for damages. Since the facts leading to that judgment were so specific, the question arises whether the judgment of 21 February 2014 really intended to advance such a general principle in exclusion cases.