X has initiated a legal procedure at the Dutch Court of Limburg. The Court has provided that although the administration conditions contain a specific obligation to proceed with the cancellation of the depository receipts, this does not automatically imply that the STAK must actually do so. The board of the STAK has a certain discretion and should also focus on its own interest, according to the Dutch Court of Limburg. The interest of the STAK is often explained in the articles of association. In case it can be established that the STAK has the obligation to also focus on the interests of other parties than the holder of depository receipts, the board of the STAK cannot automatically proceed with the cancellation of the depository receipts if the interests of other parties concerned is impaired. In this case, the actual role of the STAK was not sufficiently known. Parties agreed to the fact that the purpose of issuing the depository receipts was to guarantee the continuity of the company in the underlying company. However, Parties did not agree about what are the threats to this continuity.
In this case the Court ruled that it is not objectively clear what the actual objective of the STAK is. As a result, the board of the STAK is not obliged to proceed with the cancellation of the depository receipts. The legal procedure cannot provide in a solution since the short period of this procedure does not clarify the actual objectives of the STAK and thereby the claim of X is rejected.
Remarkable
Remarkable about the outcome of this procedure is that the court does not confer a binding character to an obligation which is set out in in the administration conditions. An obligation in the administrative conditions is not automatically enforceable. The board of the STAK keeps a certain discretion when it comes to carrying out such an obligation.