(NON)MANDATORY RULES INDUTCH CORPORA TE LAW advocate-general at the Amsterdam Court of Appeal. One or more court-appointed investigators carry out the investigation. They have full access to the company books and premises and they are to receive full co-operation of the company directors and employees. The investigator s report is sent to the applicants and to the company Ifthe report gives evidence of mismanagement the Enterprise Chamber may take rather far-reaching measures, such as the annulment of a resolution of an of the company, the suspension or removal of directors, the appointme directors, temporary transfer of shares, temporary devation company articles, and the winding-up of the company. These and other measures may also be sought in preliminary relief. The Enterprise Chamber and the Supreme Court have gradually expanded the notion of mismanagement. Mismanagement is described as acting in breach of elementary principles of sound entrepreneurship. Without actually establishing a principle, the Enterprise Chamber concentrates on the conduct not only of the executive board, but also of the superv sory board and the general meeting. Even the onduct of an individual shareholder may constitute mismanagement of the com pany The investigation procedure has proven to be quite succesful in deadlock situations Trade unions have also had some success in establishing consultation and information rights e.g. in case of the closing down of a business. Although restoration is not an option for an insolvent com pany, an investigation may still be useful to establish responsibility. With an investigators report in hand it is easier to prove liability of a director for a bankrupcy. One of the latest fields of app lication of the investigation procedure is the take-over battle. Louis Vuitton Moet Hennessy attempting to take over Gucci has turned into a legal boxing match with Six udgments.14 Because of its increasing popularity, the scope of the investigation procedure is much discussed. 15 Not only does the works council have an influence on the appointment of members of the supervisory board in the structuurregime, it also has the right to give dvice to the entrepreneur on a catalogue of mportant decisions which may effect the situation of the employees, e.g. merger or take-over decisions, the closing down or transfer of a business, a collective mass dismissal (art. 25 WOR). If the advice notasked or followed, the works council may challenge the decision at the Enterprise Cf. Hoge Raad 10 January 1990, Nederlandse Junispnadentie 1990, 466(Ogem), where t held that the ams of the investigation procedure are not only the reorganization of the compay and the restoration of healthy relations, but abo to give diclosure and to establish who was respons ble for the mismanagement E.g. Ondernemngskamer 29 August 1985, Nederlandse Jurispndentie 1986, 578( Howson Igraphy) A o. Ondenemingskamer 27 May 1999, Nederlandse Jurispnidentie 1999, 487. Hoge Raad 27 September 2000, Nederland se Junispndentie 2000, 653. Ondememingskamer 8 March 2001 Nederlandse Juripnudentie 2001, 224. The match has ended by Pinault Printemps Redoute buy ing the 20%share capital ofL VMH Cf BLANCO FERNANDEZ Wetsuitleg en de kem van het enqueterecht, WPNR 2001, P 649 ff. DORRESTEIJN, Het onderzoek bi Gucci en de kem van het enqueterecht, WPNR 2001, P 647(NON) MANDATORY RULES IN DUTCH CORPORATE LAW 5 advocate-general at the Amsterdam Court of Appeal. One or more court-appointed investigators carry out the investigation. They have full access to the company s books and premises and they are to receive full co-operation of the company s directors and employees. The investigator s report is sent to the applicants and to the company. If the report gives evidence of mismanagement , the Enterprise Chamber may take rather far-reaching measures, such as the annulment of a resolution of an organ of the company, the suspension or removal of directors, the appointment of interim directors, temporary transfer of shares, temporary deviation of the company s articles, and the winding-up of the company. These and other measures may also be sought in preliminary relief. The Enterprise Chamber and the Supreme Court have gradually expanded the notion of mismanagement. Mismanagement is described as acting in breach of elementary principles of sound entrepreneurship . 12 Without actually establishing a principle, the Enterprise Chamber concentrates on the conduct not only of the executive board, but also of the supervisory board and the general meeting. Even the conduct of an individual shareholder may constitute mismanagement of the company. The investigation procedure has proven to be quite succesful in deadlock situations. Trade unions have also had some success in establishing consultation and information rights e.g. in case of the closing down of a business. 13 Although restoration is not an option for an insolvent company, an investigation may still be useful to establish responsibility. With an investigators report in hand it is easier to prove liability of a director for a bankrupcy. One of the latest fields of application of the investigation procedure is the take-over battle. Louis Vuitton Moët Hennessy attempting to take over Gucci has turned into a legal boxing match with six judgments.14 Because of its increasing popularity , the scope of the investigation procedure is much discussed.15 Not only does the works council have an influence on the appointment of members of the supervisory board in the structuurregime, it also has the right to give advice to the entrepreneur on a catalogue of important decisions which may effect the situation of the employees, e.g. merger or take-over decisions, the closing down or transfer of a business, a collective mass dismissal (art. 25 WOR). If the advice is not asked or followed, the works council may challenge the decision at the Enterprise 12. Cf. Hoge Raad 10 January 1990, Nederlandse Jurisprudentie 1990, 466 (Ogem), where it held that the aims of the investigation procedure are not only the reorganization of the company and the restoration of healthy relations, but also to give disclosure and to establish who was responsible for the mismanagement. 13. E.g. Ondernemingskamer 29 August 1985, Nederlandse Jurisprudentie 1986, 578 (Howson Algraphy). 14. A. o. Ondernemingskamer 27 May 1999, Nederlandse Jurisprudentie 1999, 487. Hoge Raad 27 September 2000, Nederlandse Jurisprudentie 2000, 653. Ondernemingskamer 8 March 2001, Nederlandse Jurisprudentie 2001, 224. The match has ended by Pinault Printemps Redoute buying the 20% share capital of LVMH. 15. Cf. BLANCO FERNANDEZ, Wetsuitleg en de kern van het enquêterecht, WPNR 2001, p. 649 ff. DORRESTEIJN, Het onderzoek bij Gucci en de kern van het enquêterecht, WPNR 2001, p. 647 ff