In its judgment of September 22, 2023, the Supreme Court ruled that, depending on the circumstances of the case, an inquiry proceedings may also relate to the actions of another legal entity affiliated with the legal entity.
To this end, the Supreme Court considered that – if there are valid reasons to doubt a correct policy or course of action – the power to order an inquiry is a discretionary power. When exercising that power, the interests involved must be weighed. The balancing of interests must be based on the facts and circumstances of the particular case, which must include, in addition to the purposes of the right of inquiry, the nature of the dispute existing between the applicants and the legal entity and the objections to a broad application of the means of inquiry. The regulation of the right of inquiry is aimed at the interest of the legal entity, and the weighing of interests therefore places that interest first. The starting point in the application of the right of inquiry is that, in the end, what matters most is economic reality.
This is consistent with the fact that the actions of another legal entity that is organizationally connected to the legal entity, for example an indirect shareholder, may under circumstances also fall within the scope of the policy and the course of affairs of the first-mentioned legal entity, and thus of what may be the subject of an inquiry procedure with respect to this first-mentioned legal entity within the framework of Article 2:350 (1) of the Dutch Civil Code. It follows that such acts may also be the subject of any subsequent inquiry into the policy and affairs of that first-mentioned legal entity.
Whether certain actions fall within the scope of the policy and affairs of a legal entity depends on the circumstances of the specific case and the other points of view mentioned above. Among the circumstances of the specific case to be taken into account may be the capacity or function of the person whose actions are concerned, his organizational connection or involvement with the legal person to which the inquiry request relates, and his influence, direct or indirect, on the policy and course of affairs of that legal person. It is not necessary that the person whose actions are at issue is also a director of the legal entity or is affiliated with that legal entity in a group.
In addition, the Supreme Court holds that the actions of an indirect shareholder may be relevant for the application of Section 2:8 of the DCC. To this end, the Supreme Court considered that Section 2:8 (1) of the DCC stipulates that a legal entity and those who are involved in its organization pursuant to the law and its articles of association must behave towards each other as such in accordance with what is required by reasonableness and fairness. This provision is formulated from the perspective of one legal entity and those involved in the organization of that legal entity by virtue of the law and the articles of association. This is consistent with the structure of Book 2 of the Civil Code, in which many provisions take the stand-alone (single) legal entity as their starting point. For the interpretation of such provisions of Book 2 of the Civil Code and their application in a concrete case, it may be important that there is an organizational relationship of legal persons. The circumstances of the case may therefore imply that, besides the persons mentioned above in the first sentence of this consideration, the scope of Section 2:8 (1) of the DCC also includes the legal entity organizationally related to the legal entity mentioned in that first sentence and those who are involved in the organization of the latter legal entity pursuant to the law and the articles of association.