The ruling is a boost for the regulator’s views on corporate governance
The CBb is the highest administrative court in the Netherlands in the field of socio-economic administrative law. It recently decided on the long-running Atradius case. The CBb decides that shareholders must use their control in such a way that the company will comply with the rules attached to a DNO by the Dutch Central Bank (DCB) .
In the Atradius case, the main shareholders challenged rules imposed by the DCB to the Declaration of No-Objection (DNO) for the shareholder structure (http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:CBB:2016:270). .
Independent supervisory board
CBb’s takeaway on a governance provision attached to the DNO is quite interesting. In short this provision held that at least half of the Supervisory Board plus the Chairman should consist of persons not affiliated to the shareholders. CBb decides that this is an appropriate provision to promote the balanced and independent decision making process of the Supervisory Board as a supervisory body. DCB may use this provision as an additional security above the requirements for the proper performance of duties of commissioners under the Civil Code. CBb finds it irrelevant whether or not the Chairman, under the statute, has decisive powers. According to CBb, the independency of the Chairman is required for the proper functioning of the Supervisory Board and its committees and for his role as a linking pin to the Managing Board and the shareholders of a company.