In corporate law, the inquiry procedure is an important tool for shareholders and other stakeholders to have the policy and conduct of a company reviewed. A key question in the second phase of this procedure is whether there has been mismanagement. On 13 March 2026, the Supreme Court clarified once again that this is not an automatic conclusion, even in the case of serious shortcomings in the decision-making process.
Voor ondernemingen en aandeelhouders is dit een relevante ontwikkeling. In deze blog wordt toegelicht wat deze uitspraak betekent voor de praktijk en hoe de Ondernemingskamer (OK) omgaat met herstelmaatregelen en het vereiste belang bij een wanbeleidsoordeel.
The right to conduct inquiries and the second phase
The right to conduct an inquiry (article 2:344 et seq. of the Civil Code) comprises two stages.
First phase
The Enterprise Chamber assesses whether there are valid grounds for doubting the correctness of a policy. If so, an investigation may be ordered.
Second phase
The investigation report is used to assess whether there has been mismanagement (article 2:355 of the Dutch Civil Code). This may lead to far-reaching measures, such as:
- dismissal of directors or supervisory directors
- suspension of decisions
- transfer of shares
Furthermore, a finding of mismanagement often has implications for any liability proceedings.
The key question: does negligence automatically apply in cases of serious defects?
Serious defects are not decisive
In the case concerning ICTS International N.V., the investigator found that there were serious procedural and substantive flaws in the decision-making process, in which insufficient account had been taken of the interests of the company and minority shareholders.
Nevertheless, the Enterprise Chamber ruled that there had been an incorrect policy, but not mismanagement. The Supreme Court has confirmed that this is legally correct.
The key point is that the Enterprise Chamber is not obliged to find that there has been mismanagement, even in the case of serious shortcomings.
The focus is on the issue of mismanagement
The importance of respecting rights
A decisive factor is whether there is still a specific and current interest in bringing a claim for maladministration. If such an interest is lacking, the application may be dismissed.
VolgAccording to the Supreme Court, there can be no finding of maladministration without a legally valid interest, and the Enterprise Chamber has discretion in this regard.
Practical significance
This means that merely identifying errors or shortcomings is not enough. It must also be demonstrated why a finding of mismanagement is still necessary, for example:
- as a first step towards liability proceedings
- in the event of any remaining damage
- in the event of structural governance issues
The role of remedial measures
Recovery can prevent mismanagement
A key aspect of this ruling is that the Enterprise Chamber is expressly permitted to take remedial measures into account, even if they were only implemented after the first phase.
In the ICTS case, the following measures, amongst others, were taken:
- changes to governance and the appointment of independent non-executive directors
- financial corrections and additional payments
- preparations to reverse or nullify previous decisions
These actions played a significant role in the conclusion that no maladministration needed to be established.
The purpose of the right to conduct an inquiry has been achieved
The Enterprise Chamber ruled that the objectives of the right to conduct an inquiry had already been achieved:
- transparency regarding the policies pursued
- transparency regarding the policies pursued
- preventing recurrence
In such a situation, the court has ruled that a finding of mismanagement can no longer add any value.
Balancing of interests: the company versus the shareholders
Reputation and continuity
It is noteworthy that the Enterprise Chamber also took into account the potential negative consequences of a finding of mismanagement for the company itself.
For companies operating internationally, such an assessment may:
- be misinterpreted by foreign stakeholders
- cause reputational damage
- put pressure on business relationships
This may result in the interests of the company taking precedence over those of an individual shareholder.
What does this mean in practice?
For directors and companies
This ruling underscores the importance of acting swiftly and appropriately when there are shortcomings in the decision-making process:
- Take remedial action seriously and in good time
- improve governance where necessary
- document the steps taken carefully
A well-thought-out recovery strategy can prevent a situation from escalating into a finding of mismanagement.
For minority shareholders
The bar has been raised for shareholders who initiate an inquiry procedure:
- provide specific reasons why a finding of mismanagement is necessary
- demonstrate that there is still a current interest
- do not focus solely on the severity of the defects
Without clear justification, a request runs the risk of being rejected, even in cases of obvious errors.
Case law shows that a carefully constructed litigation strategy in proceedings before the Enterprise Chamber is essential for the assessment of mismanagement.
