Application for an inquiry to the Netherlands Enterprise Court: what if your equity interest is diluted during the proceedings?

Anyone initiating an inquiry procedure with the Netherlands Enterprise Court must not only meet the statutory capital requirement at the time of filing; that shareholding must also still exist at the time of the oral hearing, as confirmed in a recent ruling by the Netherlands Enterprise Court. If your shareholding is diluted in the meantime, you risk your application being declared inadmissible before the court considers the merits of the case. Article 2:346(1)(b) of the Dutch Civil Code stipulates that the applicant shareholder must, either alone or together with others, hold at least 10 per cent of the issued share capital, or shares with a combined nominal value of at least €225,000. This is the capital requirement.  

What were the facts of this case? 

Logfret is an international company that carries out logistics operations by road, sea and air. The shares were divided between Kirsha (27.44%) and Logistique (72.56%). The director of Kirsha was also a director of Logfret. Following an investigation by the tax authorities, it emerged that a Portuguese VAT return had not been processed correctly, and that Kirsha had failed to report this to Logistique. Kirsha was subsequently dismissed as a director. Years later, Logfret set up a new company: Logfret Benelux, with a Swiss company as its sole shareholder. Between 2023 and 2024, Logfret’s turnover fell sharply. 

In November 2025, the shareholders’ meeting resolved to issue 23,000 new shares to Logistique. In April 2026, those shares were actually issued. 

In December 2025, Kirsha initiated an inquiry procedure with the Netherlands Enterprise Court. Her complaint was that profits had virtually evaporated over the course of three years, operations appeared to have been transferred to Logfret Benelux, which was based at the same address, and Kirsha had not been kept informed of the significant decline. 

Two assessment points 

This is the crux of the ruling: the capital requirement applies at two points in time:  at the time of submission and at the oral hearing. A stake that is diluted in the interim can scupper the entire proceedings, even if the substantive objection is well-founded. There is one exception. Anyone who falls below the threshold as a result of a share issue may still be deemed admissible if the application relates (in part) to an investigation into that specific issue and the applicant argues that there are valid grounds to doubt the correctness of the policy behind that issue, as the Supreme Court previously ruled in Slotervaartziekenhuis. 

In the Logfret case, this did not apply: Kirsha had focused her objections on the decline in turnover and the transfer to Logfret Benelux, but had not substantiated why the share issue itself constituted mismanagement. She therefore failed to meet the criteria for the exception. 

Practical conclusions 

For shareholders involved in a shareholder dispute, the following applies: access to the Netherlands Enterprise Court is not a given. Even if you meet the capital requirement at the start of the proceedings, you are not yet in the clear. The Enterprise Chamber reassesses this at the time of the oral hearing. If your shareholding is diluted in the meantime – due to a share issue, a capital increase or a transfer of shares – you risk your case being declared inadmissible, even if your complaint is substantively well-founded. 

The lesson, therefore, is: actively monitor your equity interest throughout the proceedings, and consider your options, such as applying for an interim provision if you see signs that your interest is being deliberately eroded.   

See also: A 50/50 shareholder dispute: what can the court decide? 

Our Litigation team will be happy to advise you on any queries you may have regarding disputes and disagreements between shareholders, directors and other parties within the company.