Is the committee of a Dutch association obliged to issue the list of members?
What can you do as a member of a Dutch association if you want to expose misconduct by the association’s committee? If you want to convene a general meeting of members, you would need the list of members. What if this list is not issued? The Court of Appeal recently delivered an interesting ruling on this. Corporate Law Lawyer Thomas van Vugt explains.
Member requested general members meeting
A member of the Dutch Small-Scale Care Sector Association (Nederlandse Branchevereniging Kleinschalige Zorg, BVKZ) requested a general meeting of members (GMM). He suspected a lack of transparency and conflicts of interest within the committee and wanted to discuss this with the members. The committee refused this request. According to the constitution, the committee must convene a GMM if 10% of the members support the request for a GMM. The member therefore requested an up-to-date list of members to be able to notify the members. The committee also refused to issue the list of members.
Dutch court rejected request list of members
The member went to court. The Dutch court in preliminary relief proceedings rejected the demand for the issue of the current list of members. According to the court, the only purpose of the demand was to revoke decisions previously taken. In addition, the member could have requested the list without resorting to court proceedings. Moreover, the member could have retrieved an incomplete list of members from the BVKZ website and supplemented it with his knowledge of the sector and information that could be found on Google.
The member lodged an appeal. BVKZ argued that the member had no interest, that the meeting would only serve to revoke resolutions, that the items on the agenda were too vague for a GMM, and that the current list of members could be constructed on the basis of the website and the internet.
Urgent interest: misconduct within committee
According to the Court of Appeal, the member did have an (urgent) interest. It concerned misconduct within BVKZ’s committee. The Court of Appeal also concluded that without a list of members, the member would not get the prescribed 10% of the members behind the request. Moreover, the law and the constitution do not impose any requirements on items on the agenda. If they are too vague, the other members will not support the request for a GMM. According to the Court of Appeal, constructing a list of members is contrary to the reasonableness and fairness of Section 8 of Book 2 of the Dutch Civil Code.
Ruling and lawyer’s strategy
BVKZ was ordered to provide an up-to-date list of its members. In this case, the member’s lawyer successfully invoked the reasonableness and fairness of Section 8 of Book 2 of the Dutch Civil Code. After all, without a list of members, it is not possible to make use of the possibility under the constitution in the Netherlands to convene a general meeting of members. Despite the absence of a legal rule forcing the committee to issue the list of members, the member was nevertheless proved right by the Dutch Court of Appeal.