In Bospop I: governance in practice, https://www.paulussen.nl/nl/nieuws/bospop-weert-governance-in-de-praktijk/ the background and reason for this issue have already been explained. In short: under the Dutch Legal Entities Governance and Supervision Act (WBTR), Bospop had to take concrete steps to improve its governance by July 1, 2021, at the latest. However, the Bospop board could not agree on the practical details: should the number of board members be reduced or not, and should there be a separate supervisory board or not? In other words, one camp wanted to introduce the one-tier model and the other camp wanted to introduce the two-tier model.

The facts

The new governance structure had been on Bospop’s agenda since mid-2019. It was discussed in 2019 and 2020, and Mojo also contributed ideas and input.

In January 2021, four of the seven board members ultimately voted in favor of introducing the one-tier model. This was therefore a majority decision. This camp wanted to reduce the current board from seven to three members, with the appointment of board member four as a non-executive, supervisory director.

The other camp, a minority consisting of three board members, may have seen the writing on the wall (exit from board membership) and refused to sign the one-tier board decision. This created a stalemate. The one-tier model could not be introduced, and the board therefore remained composed of seven members. This is because a unanimous board decision was required to amend the articles of association.

In February 2021, the three sent a letter to the other camp in which they formally objected to the proposed reform of the current board model to a one-tier model, as well as all related or necessary follow-up actions, and stated that they did not agree to the termination of their board positions. The letter also contained criticism of the other camp and reproaches and dissatisfaction with the functioning of the board. According to the three, the entire decision-making process regarding the one-tier or two-tier model had been careless and based on insufficient or incorrect information.

In March 2021, a new board meeting was held with a single agenda item: the dismissal of the three dissenters.

The board meeting on the dismissal decision

During that meeting, the three wanted to be assisted by legal advisors regarding their dismissal. The chair did not allow this, but the advisors refused to leave the room. The other camp, i.e. the majority, then left for another room. There, they voted on the dismissal of the three. This decision, the “Dismissal Decision,” was adopted.

The three, in turn, decided in a kind of private meeting to dismiss the other side. This decision was made by the minority and therefore, in principle, had no legal effect.

The trio did not accept the Dismissal Decision taken by the majority and went to court. This led to various judgments that are all worth reading, both factually and legally. Below is a brief overview of some aspects of these proceedings.

Preliminary relief proceedings

In 2021, the trio demanded in summary proceedings that the court suspend the dismissal decision until a ruling had been made in the proceedings on the merits. However, the summary proceedings were procedurally incorrect. The claims were brought against the directors in their private capacity instead of against the legal entity Stichting Bospop. The summary proceedings judge therefore dismissed the claims.

The proceedings on the merits before the court

Legally, if the formation of a management decision is contrary to legal or statutory provisions, or if those involved have not behaved towards each other in accordance with the principles of reasonableness and fairness, the decision is voidable.

According to the court, this was the case with Bospop. In 2022, the court ruled in the proceedings on the merits that although the dismissal decision was not literally contrary to the articles of association, it was contrary to their spirit. According to the court, the board meeting at which the three were dismissed could not be regarded as anything other than “an attempt to silence these board members and pave the way for an amendment to the articles of association in which their votes would no longer count.” (…)

In these proceedings, the three also demanded the dismissal of the chairman. The court did not agree.

As a result of this court ruling, everything remained as it was. The dismissal decision was reversed and, last but not least, Bospop still needed a unanimous board decision on the structure of its governance.

Both sides are appealing.

Appeal to the court of appeals

In its judgment of August 26, 2025, the court of appeals partially reversed the court’s ruling.

The court of appeals first assessed whether the dismissal decision had been taken in accordance with the provisions of the articles of association: was the entire board properly convened, was the decision regarding the dismissal of the three members on the agenda, was the decision actually taken, was it a majority decision, and was the conduct of the meeting in accordance with the provisions of the articles of association, also considered in their mutual context? Like the court, the court of appeal found that this was the case.

Then there is the question of whether the board could reasonably and fairly have come to the decision to dismiss. Unlike the court, the court of appeal ruled that this was indeed the case. According to the court of appeal, the dismissal decision was not so much taken with the motive of being able to implement an amendment to the articles of association. The motive was much more based on the breach of trust that had arisen as a result of the content of the letter from one camp to the other. This concerns in particular the points of criticism included in that letter, their nature and the wording used, as well as the fact that the letter showed that the three refused to introduce the one-tier model, even though a legally valid majority decision had (also) been taken on this.

According to the court, the fact that the meeting was continued by the other camp in another room was at the expense and risk of the three. After all, the three had brought two advisors with them who had not been invited, even though this was required by the articles of association. Moreover, those advisors ignored the chairman’s request to leave the board meeting.

The three also believed that the dismissal decision should be classified as a decision taken outside the meeting because the other side had moved to another room. Different statutory provisions apply to decisions taken outside the meeting, which, according to the three, had not been complied with. Here too, the court did not agree. In addition to the fact that, according to the court, the trio remained responsible for the consequences of their actions because they had chosen to attend the meeting with only their advisors, the court pointed out that the entire board had been legally convened and that the meeting had taken place in one of the rooms at the location specified in the invitation. No specific room was mentioned in the invitation.

And what about the decision of the trio, which in turn decided in a kind of private meeting to dismiss the other camp? Like the court, the court of appeal ruled that this decision was not legally valid because the trio had not followed the provisions of the articles of association. For example, the invitation to the meeting only mentioned the dismissal of one camp, and not the dismissal of the other camp.

Furthermore, the court considers it relevant that the Bospop board is responsible for organizing events involving millions of euros. In 2021, there was a great need for a stable, decisive, and decisive board. It was precisely this stability, decisiveness, and decisiveness that had come under serious pressure as a result of the letter.

On the basis of the above, the court ruled that the 2021 Dismissal Decision is not null and void and cannot be annulled. The Dismissal Decision was taken legally and there is no fundamental defect in its formation. Furthermore, there was no violation of the articles of association or public policy, nor was there any abuse of authority.

What next?

Can the Bospop board now finally put its governance in order? By voting on the amendment to the articles of association that is necessary for the introduction of

the one-tier model? No, because the judgment has not been declared provisionally enforceable in this respect. The board will therefore first have to wait and see whether the three will appeal to the Supreme Court.

To be continued, perhaps.

Do you have questions about governance, setting up or changing management and supervisory structures, or are you facing a stalemate? Feel free to contact John Huppertz of Paulussen Advocaten in Maastricht, or Philip Nijbakker of our office in Heerlen.

This article was written by Marijke Schmitz.

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