On 25 May 2009 the government published its response to the updated Dutch Corporate Governance Code.1 The proposed update was presented by the Frijns Commission on 10 December 2008, together with a number of recommendations to the legislature. In its response, the government emphasises that all Dutch listed companies, including financial institutions, are subject to the Code. Financial institutions must also take into account other government and market initiatives arising from the financial crisis, such as the recommendations of the Maas Commission and the gentlemen’s agreement with regard to remuneration. The government will present its vision for the future of the financial sector and the supervision of the sector before the summer.
The government notes that the amended Code:
- will put more emphasis on influencing the conduct of the managing board, the supervisory board and the general meeting;
- explicitly highlights cooperation, dialogue and coordination between the managing board, the supervisory board and the general meeting;
- pays specific attention to the performance by and composition of the supervisory board; and also contains principles for all shareholders (e.g. a shareholder should first consult with the managing board before using the right to have an item placed on the agenda, and a shareholder should give the managing board a 180-day period to respond to an agenda item of a strategic nature).
The government subscribes to the principles and changes contained in the amended Code.
The government, however, rejects the Commission’s recommendation to incorporate into law a 180-day response time for the managing board when an agenda item of a strategic nature is submitted. Its reasons are:
- it would be a too general and far-reaching limitation on the right of shareholders to have items placed on the agenda;
- the Shareholders Rights Directive is based on one time limit for placing items on the agenda. There is no scope in the Directive for introducing another time limit for agenda items of a strategic nature.
The government will follow the recommendation for a “put up or shut up” provision and will further consider introducing the rule in the Dutch public offer rules.