Gepubliceerd op 18/03/2025
The Court of Appeal in Ghent made a significant ruling on January 8, 2024, regarding the valuation of shares in a dispute settlement between shareholders in an exclusion procedure. The central question was whether a correction on the share price was justified due to the influence of client poaching to a competing company by the shareholder requesting the exclusion. The court confirmed that such a correction might be necessary to determine the fair value of the shares, in accordance with the principles of the Companies and Associations Code (WVV) and supported by various rulings of the Court of Cassation.
Background of the case
The case involves NV FinTrust, established in 1994 and active as an independent insurance broker and bank office. The company had two shareholders, A. Vandenberg and B. De Wilde, each owning 50% of the shares and serving as directors. After their divorce in 2013, serious conflicts arose over the management and ownership within the company. On October 2, 2014, Vandenberg summoned her former co-shareholder De Wilde to transfer all his shares to her (exclusion procedure), with the reference date being the date of the summons. The court appointed an expert to determine the value of the shares.
Core of the dispute
The expert investigation revealed that after the divorce, a significant portion of NV FinTrust’s clientele had switched to a competing company, BV SecurePlan, where Vandenberg played a significant role as a shareholder and director. This led to a decrease in the value of NV FinTrust, resulting in a lower share price. The court found that:
- The transfer of clients and policies to BV SecurePlan impacted the value of NV FinTrust.
- Vandenberg was both a director in NV FinTrust and the competing company, indicating a conflict of interest.
- The expert calculated that the share value needed to be corrected by €35,194 to compensate for the impact of client poaching.
Court’s assessment
The Court of Appeal confirmed the correction of the share price based on the principles of the WVV and case law. The judge has the discretionary power to determine the reference date and to correct the current value of the shares if justified by the parties’ actions or circumstances affecting the valuation. According to Article 2:67, third paragraph WVV, and Article 2:69, third paragraph WVV, the judge can consider the circumstances in which the company operates when determining the value of the shares. The court ruled that Vandenberg, by holding directorships in both companies, breached her duty of loyalty as a director, and it would be unreasonable not to account for the devaluation caused by client poaching. Therefore, the correction of €35,194 was upheld.
Implications for shareholder disputes
This ruling confirms that in disputes over share transfers, judges can adjust the valuation to avoid improper influence on the share price. Directors who conflict with their co-shareholders and simultaneously engage in competing activities risk having the impact of such actions accounted for in the valuation. This ruling aligns with previous case law and provides important clarification on the application of the dispute settlement under the WVV.
Relevant Articles of the Companies and Associations Code (WVV)
- Article 2:67, third paragraph WVV: The judge estimates the value of the securities at the time he orders their transfer, unless this leads to an obviously unreasonable result. In that case, he may decide on a fair price increase or decrease, taking into account all relevant circumstances.”
- Article 2:69, third paragraph WVV: The judge estimates the value of the securities at the time he orders their acquisition, unless this leads to an obviously unreasonable result. In that case, he may decide on a fair price increase or decrease, taking into account all relevant circumstances
Tim De Clercq
Advocaat / oprichter
info@taloadvocaten.be+32 3 612 57 60
+32 3 612 57 69
Mter. De Clercq
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