!Корпоративное право 2023-2024 / 2013-study-analysis_en

representative (Art.

to induce the directors to

financial situation of the

327(3)) represents the

act to the detriment of the

company is such that it

company in the

company and the

does not allow the

proceedings

shareholders suffer a

payment of the

loss different from the

company’s obligations as

loss suffered by the

they fall due

company (i.e. no claim in

case of reflective loss)

2) In cases of intra-group

transactions where a

controlling company

causes damage to a

dependent company

Spain

General meeting, s. 238

Shareholders or third

Creditors can bring an

parties can bring a claim

action if the company or

for damages against the

shareholders do not do

directors in their own

so and when the

name if the directors

company has insufficient

have acted in a way that

assets to repay its debts,

directly harms their

s. 240 LSC

interests and the loss

suffered is not merely

reflective of the

company’s loss, s. 241

Sweden

General meeting, Ch.

Shareholders may have a

Creditor who cannot be

29, § 7

direct claim based on Ch.

compensated may

29, § 1

enforce claims of the

company against the

director, provided that the

damaging action created

or aggravated the

company’s insolvency

United Kingdom

Board of directors

1) Only if a personal right

No

of the shareholders has

been invaded

2) Unfair prejudice

remedy, s. 994

Country

Threshold

Conditions

Cost rules

Austria

10% minority

-

The company can

shareholders (5% if the

reclaim the litigation

audit report identified

costs from the minority

facts that give rise to

shareholders; where

liability) can order the

minority shareholders

supervisory board to

intentionally or grossly

enforce a claim against a

negligently cause the

manager or assign a

company to bring an

special representative to

unsuccessful claim

enforce the claim

against a director, the

NOTE: this is not a

minority shareholders are

derivative action in the

liable for the damage

strict sense because the

suffered by the defendant

company is represented

by the supervisory board

or the special

representative; the

minority shareholder may

only intervene according

to civil procedure rules

Belgium

1% of voting rights or

If the general meeting

Claimants must advance

1,250,000 EUR of the

resolved to acquit the

the costs and are not

share capital in the public

director/waive the

reimbursed by the

company; 10% of voting

company’s claim, the

company if the claim is

rights in the private

claimant shareholders

unsuccessful. Claimants

limited company (must be

with voting rights must

are reimbursed if the

held on the day the

not have voted in favour

action is successful.

general meeting decides

of acquittal

whether to acquit the

directors)

Bulgaria

10% or 5% in case of

Court approval not

The general cost rules of

listed companies

necessary

the civil procedure code

apply

Croatia

10%

Shareholder for at least 3

General rules on costs

months

apply, whereby the costs

are allocated according

to the success in the

proceedings, i.e. if the

claim is successful, the

costs are borne by the

person found liable

Cyprus

1 share

Foss v Harbottle243

The award of the costs

principles → derivative

lies in the discretion of

action permissible if:

the court.

1) the act complained of

was ultra vires;

2) special majority

3) fraud on the minority

and wrongdoer control

Czech Republic

> 3% of the registered

The minority

The general cost rules of

capital (if total share

shareholders must first

civil procedure apply;

capital > CZK 100m) or >

request the supervisory

since the company is the

5% (if total share capital

board to enforce the

plaintiff and the

≤ CZK 100m)

claim (see above 3.1)

shareholders sue in the

and the SB must fail to

name of the company,

do so

the company must pay

the minority

shareholders’ court fees

and the costs of legal

counsel

Denmark

10% (for the derivative

The claimant

The claimant

action under s. 364(3))

shareholders must have

shareholders must pay

opposed a resolution to

the legal costs involved,

grant exemption from

but may have such costs

liability or waive the

reimbursed by the

company’s claim, s.

company to the extent

364(3)

that they do not exceed

OR:

the amount recovered by

the company, s. 364(3)

The company does not

bring the legal action →

this derivative action is

not laid down in statute

and its permissibility is

controversial in the

literature; no court

decision

Estonia

No derivative action

n/a

n/a

Finland

10% OR it is shown that

It is likely that the

The shareholder bears

a decision of the

company itself is not

the cost if he/she loses

company not to enforce

going to sue

its claim would violate the

principle of equal

treatment, Ch. 22, s. 7

France

1) General rule of the

The action sociale ut

Normal cost rules apply.

Civil Code: 1 share

singuli pursuant to the

This has the

2) The Commercial Code

Commercial Code is of a

consequence in practice

subsidiary nature. It can

that the derivative action

provides for an additional

only be initiated if the

is not commonly used

(not alternative) action

representatives of the

because the

sociale ut singuli for the

company refuse to take

shareholders bear the

SA: shareholders holding

legal action.

up-front costs of the

more than 5% of the

proceedings.

share capital can act

together in enforcing

claims of the company

Germany

1% or EUR 100,000

Claim admission

s. 148(6): the claimant

procedure, s. 148(1). The

has to bear the costs of

court shall grant

the admission procedure

permission to pursue the

if the application is

claim if:

dismissed, unless the

1) the shareholders

dismissal is due to facts

relating to the interest of

acquired the shares

the company that the

before they knew, or

company could have

should have known, of

disclosed prior to the

the breach of duty;

application, but did not

2) they requested the

disclose; if the application

company to bring a claim,

is successful, but the

but the company failed to

claim is dismissed in

do so within a reasonable

whole or in part, the

time limit;

company shall reimburse

3) prima facie the

the claimants

company suffered a loss

due to dishonesty or

gross violation of legal

provisions or the articles;

4) pursuing the claim is

not outweighed by the

interests of the company

194

Directors’ Duties and Liability in the EU

Greece

10% minority

The claimants must have

The company must cover

shareholders can request

been shareholders for at

the costs, Art. 22b(3)

the board of directors to

least three months before

bring a lawsuit, or 1

the action is brought

share if intentional

conduct is alleged

NOTE: this is not a

derivative action in the

strict sense because the

company is the party to

the lawsuit

Hungary

5%

The general meeting

No specific rules.

decided not to enforce

According to general

the claim of the company

rules on Civil Procedure,

costs of

submitting/enforcing the

claim are to be born in

advance by the claimant

and finally allocated to

the losing party. Party to

the proceedings is the

company, not the

minority shareholder.

Therefore, the company

should pay or, if this does

not happen, the

shareholders have a

claim against the

company for

reimbursement (based on

restitution)

Ireland

1 share

Foss v Harbottle applies:

Case law shows that if

1) the action must be

the court decides to grant

leave to maintain a

brought bona fide for the

derivative action, there is

benefit of the company

a high likelihood that the

for wrongs to the

plaintiff will obtain an

company and not for an

indemnity for the costs

ulterior purpose

from the company

2) the persons against

whom the action is taken

must have majority

control of the company

and have blocked an

action being brought in

the name of the company

3) the claimant must

show wrongdoing by

those in control and have

a good prima facie case

Italy

- 20% or a different

No

If the claim is successful

percentage as set out in

the company will

the articles (which cannot

indemnify the claimants

exceed one third of the

against the costs incurred

corporate capital)

in bringing the

- In the case of listed

proceedings, unless

these are imposed on (or

195

Directors’ Duties and Liability in the EU

companies and

recovered from) the

companies whose

losing party.

shares, although not

If the claim is settled or

listed on a regulated

not successful, the

market, are widely

claimants do not have

distributed among the

any right to be

public (societa’ che fanno

indemnified

ricorso al capitale di

rischio), the claim may be

brought by a group of

shareholders

representing at least

2.5% of the outstanding

share capital, Art.

2393(1), (2)bis Civil Code

Latvia

5% or LVL 50,000

- Shareholders generally

Since the company is the

(approximately EUR

only have the right to

party to the lawsuit, it

71,144), Art. 172(2)

request the enforcement

bears the costs.

of the claim by the

However, the company

company. Such request

has the right to reclaim

must be addressed to the

the litigation costs if they

competent corporate

can be considered as

body, which is for claims

damages caused by an

against board members

unjustified action. This is

the council. If the

the case if the

company does not have

shareholders have acted

a council, the GM

with:

decides.

1) malice

- If the company fails to

or

bring the claim within a

2) gross negligence.

month from the day when

the request was received,

If these requirements are

shareholders can bring

satisfied, the

the claim directly.

shareholders are jointly

However, the claim still

and severally liable for

has to be submitted in

the damage caused,

company’s name.

Art. 172(7) Latvian

Shareholders act as

Commercial Law.

representatives dominus

litis of the company.

Formally the company is

the party to the lawsuit.

- Shareholders must

submit the claim within

three months from the

day when they initially

requested enforcement.

- See Art. 172(2)-(6)

Latvian Commercial Law

Lithuania

One share, Law on

Limited case law; no

No statutory rules or case

Companies, Art. 16(1)(4)

restrictive conditions

law. As a general rule,

have been developed

claimant pays for the

claim and all related legal

expenses.

Luxembourg

Currently no derivative

n/a

n/a

action

196

Directors’ Duties and Liability in the EU

A draft act is pending in

parliament that would

create a derivative action

modelled after the

Belgian action sociale ut

singuli.

Malta

Unclear whether a

-

-

derivative action is

possible following the

English jurisprudence –

no case law

Netherlands

- No derivative action

n/a

n/a

- But shareholders

holding at least 10% of

the capital or a nominal

value of EUR 250,000

can request the

Enterprise Chamber of

the Civil Court of Appeal

of Amsterdam to conduct

an enquiry into the policy

and conduct of the

business of the company.

The court may order the

suspension of directors,

appointment of

supervisory directors with

special powers,

suspension of resolutions

of the management

board or suspension of

voting rights(Arts. 2:344

et seq. DCC)

→ this is of great

practical relevance

Poland

1 share

Art. 486(1): Where the

The role of the derivative

company has failed to

action is minimal in

bring action for relief

practice because of cost

within one year from the

rules:

disclosure of the injurious

1) Upon application by

act

the defendant, the court

may order bail to be

provided as a security for

damage that the

defendant stands to

suffer, Art. 486(2)

2) The court may order

the plaintiff to redress the

damage caused to the

defendant if it finds the

action to be unfounded

and the claimant acted in

bad faith or flagrant

negligence when bringing

the action, Art. 486(4)

197

Directors’ Duties and Liability in the EU

Portugal

5% (2% in case of stock

The company decides

The claimants bear the

exchange listed

not to bring an action

legal expenses; no

company, Art. 77(1))

(Art. 77(1)) or fails to

reimbursement is owed

bring it within six months

by the company (Art.

77(2)). If the defendant

director alleges that the

claimant brought the

action to pursue interests

not legally protected,

he/she can ask for a

ruling on the matter or for

a guarantee to be given

(Art. 77(5))

Romania

5% shareholders have

Refusal of the simple

The claimants bear the

the right to introduce an

majority of shareholders

costs of the proceedings,

action in damages in their

to bring the action ut

but can claim

own name, but on

universi, and the

reimbursement from the

account of the company,

claimants must have

company if the lawsuit is

Art. 155

been shareholders at the

successful. This has led

time when the instigation

to a low number of

of an action was debated

derivative actions in

in the GM

practice.

Slovakia

5%

Failure of the supervisory

Where minority

board to enforce the

shareholders bring a

rights of the company

claim against a director in

upon the request of

the name of the company

minority shareholders

the costs of the

without undue delay

proceedings are borne by

the shareholders bringing

the suit. They will only be

able to recover the costs

if they succeed with the

claim.

Slovenia

10% or a nominal amount

1) Art. 328(1): the GM

The legal costs shall be

of at least EUR 400,000,

rejects the proposal for

covered by the company,

Art. 328(1)

filing a lawsuit, it fails to

Arts. 328(3), 321

appoint a special

representative, or the

management or the

special representative do

not act in accordance

with the resolution

adopted by the GM

2) Art. 328(2):

a) the claimants must

deposit their shares with

the central clearing and

depository house and

may not dispose of them

until the issue of a final

decision on the claim

b) the claimants must be

able to prove that they

were the shareholders at

least three months prior

to the GM which rejected

198

Directors’ Duties and Liability in the EU

their proposal

Spain

5%

Derivative action is

The claimants can obtain

permissible if the general

reimbursement from the

meeting decides not to

company if the directors

claim liability, a resolution

are found liable;

was adopted to file the

otherwise the claimants

claim, but it is not

bear the costs of the

executed, or there is no

proceeding

decision by the general

meeting, s. 239 LSC

Sweden

10%, Ch. 29, § 9

-

The claimants shall bear

the litigation costs but

shall be entitled to

reimbursement from the

company for costs which

are covered by damages

awarded to the company

in the proceedings, Ch.

29, § 9(2)

United Kingdom

1 share

Claim admission

Civil Procedure Rule

procedure, ss. 261-263:

19.9E: The court may

the court assesses

order the company to

several factors, inter alia

indemnify the claimant

whether a member acting

against liability for costs

in good faith would seek

incurred in the

to continue the claim

permission application or

in the derivative claim or

both.

The courts will grant an

indemnification order

where a shareholder has

in good faith and on

reasonable grounds sued

as plaintiff in a minority

shareholder’s action, and

which it would have been

reasonable for an

independent board of

directors to bring in the

company’s name

(Wallersteiner v. Moir)

→ this test should be

satisfied where

permission is given for

the claim to continue

under the statutory

derivative action

procedure

Legend

Country

1 share

CY, FR, IE, LT, PL, UK

> 1 share, but < 5%

BE, CZ, DE, IT, PT