Dismissal of the board

Articles of association and Article 2:298 BW

The articles of association usually include provisions on the manner in which a board member may be dismissed. Often these provide that the body which appoints the board member may also dismiss them.

If the articles of association contain no provisions on dismissal, a board member may, in certain circumstances, be dismissed by the court under Article 2:298 BW. Grounds for such dismissal may be: i) neglect of duties; ii) significant changes in circumstances such that their continuation as board member cannot reasonably be tolerated; iii) other compelling reasons; or iv) failure to comply, or to comply properly, with an order given by the provisional relief judge of the district court.

Interested parties

A request to the court for the dismissal of a board member may be made by the Public Prosecution Service or by an interested party. Whether someone qualifies as an interested party is assessed according to the ‘two-circle’ doctrine formulated by the Supreme Court. An example of an interested party is a member of the foundation’s supervisory board.

Interim measures

The court may impose interim measures while the proceedings are pending. For example, the court may suspend the board member and appoint a temporary board member. The temporary board member has all the powers granted by law and the articles of association to the foundation’s board members for the duration of their appointment, unless the court decides otherwise.

Dismissal of supervisory board members

The law provides that supervisory board members can be dismissed on the same grounds as board members and that while proceedings are pending they can be suspended by the court and measures can be taken in respect of the supervisory board. A dismissal has the same consequences for supervisory board members as for board members.