# A drag-along is triggered and the minority resists while insolvency is already in sight
You have two routes: enforce the drag-along through a civil claim for cooperation, or wait for a statutory buy-out procedure if the qualifying majority is held. Being insolvency near narrows both. Once a suspension of payments or a bankruptcy petition is filed, a court-appointed office holder takes over powers that today still sit with the shareholders and the board, and the sale is judged on different terms from that point.
What happens if you do nothing
If neither route is taken, the sale to the third-party buyer misses its agreed timetable, and a buyer with a long-stop date is ordinarily free to walk once it passes. The underlying solvency position does not wait for the dispute to settle: a group that is already insolvency near tends to move further into it while the shareholders argue.
If a surseance van betaling (suspension of payments) or bankruptcy follows before completion, the drag-along claim becomes one item for the curator (bankruptcy trustee) to assess against the whole estate, not a private matter between shareholders, and it can lose much of its practical value.
The routes
Each route trades speed against dependence on the ownership stake actually held.
| Route | What it takes | Time | Cost driver | What it gives you |
|---|---|---|---|---|
| Civil claim for cooperation | Valid drag-along clause, notice of the trigger, proof of the underlying sale | Interim relief within weeks; a final judgment takes longer | Court fee scaled to the transaction value; number of hearings | An order compelling the minority to sign or transfer, enforceable directly |
| Statutory buy-out procedure | Qualifying majority ownership; application to the Ondernemingskamer (Enterprise Chamber) | Several months, longer where valuation is contested | Independent valuation; a possible appeal | A court order transferring the shares, no signature required from the minority |
| Negotiated exit | Agreement on price between both sides; the trustee's consent once formal insolvency has started | Days to weeks, set by the parties, not a court calendar | Advisory time; no court fee | A clean transfer, at the price of leverage retained by the minority |
What decides between them
The first question is arithmetic: does the party invoking the drag-along hold the qualifying majority for a buy-out, or only the contractual majority in the shareholders' agreement. Below that threshold, the buy-out route is not open, whatever the agreement says.
The second question is timing against solvency. A buy-out judgment can run to several months once valuation is contested, and a board that already assesses the company as insolvency near may not have that long. A civil claim, brought before a Dutch court and as kort geding (interim relief proceedings) where urgency justifies it, moves faster and is the more common route once a buyer's deadline is close.
Where a foreign parent is directing the Dutch board's response, the calculus changes again: see a foreign parent instructing the Dutch board against its own judgement. The third question is whether the minority's resistance is a position on price, or a deliberate delay meant to run past a formal insolvency filing.
The deadline that runs
No single statutory countdown governs here; two deadlines run in parallel and the shorter one decides. The contractual long-stop date in the sale agreement is the first: once it passes, the buyer is ordinarily free to walk. The second is set by solvency itself, under the applicable Dutch rules on directors' duties: a board that keeps negotiating past the point it knows continuing does not serve creditors takes on personal exposure for the delay.
Neither deadline is extended by the minority's refusal to cooperate. Treat the earlier of the two as the point by which a route must already be underway, not merely chosen.
Evidence to secure now
Assemble the agreement carrying the drag-along clause, the notice sent to the minority, and proof of the underlying sale, including price and completion date. Keep the notice's delivery date on file: contested delivery is a common objection in enforcement proceedings.
Record the board's own solvency assessment, dated, including the balance sheet test and the cash flow test as applied at the time. This record later determines whether the board acted while options were still open. On how that record is later scrutinised, see the trustee's burden of proof.
Cost drivers
A civil claim's court fee scales with the value attributed to it, and a claim to force a share transfer is generally valued at the transaction price. A buy-out procedure adds the cost of an independent valuation, usually the larger component once the minority contests the price. A second round, whether an appeal or a repeated valuation, is the single biggest driver of total cost in either route.
What we would do in the first week
Confirm the ownership percentages held by each side against the register, not against what the agreement assumes. Establish on paper whether the qualifying threshold for a buy-out is actually met, and verify the board's current solvency assessment. If a buyer's deadline falls within weeks, prepare the papers for interim relief alongside any buy-out application, rather than choosing one route and waiting to see if it works.
Brief Dutch-qualified counsel of record early: both routes run before a Dutch court and their notice periods move quickly once started.
What this does not cover
- The tax treatment of the completed sale, including where the group falls inside scope of the global minimum tax; see a group inside scope of the global minimum tax in a joint venture.
- A drag-along dispute where the company is already in formal insolvency proceedings, rather than merely insolvency near.
- Claims by the minority against the majority for breach of the shareholders' agreement itself, as distinct from enforcement of the clause.
- Jurisdictions outside the Netherlands where the target entity or the buyer is incorporated.
Questions
Does the minority have to agree to the price before the drag-along can be enforced?
No. A validly triggered drag-along binds the minority to the price agreed with the third-party buyer, on the same terms as the majority. Objecting to price contests the trigger's validity; it does not create a right to renegotiate.
What happens if the buyer withdraws while the dispute is still running?
Once the buyer walks, the drag-along has nothing left to enforce: it operates against a specific sale, not as a standing right to force one generally. A fresh trigger needs a new buyer and a new notice.
Can the board simply wait for the buy-out process instead of starting interim relief?
It can, where the threshold is met and the timeline allows it, but waiting while insolvency near persists carries its own exposure for the board. That choice belongs with the majority and the board together, not with counsel alone.
Author
Eva Kuipers, governance and the Ondernemingskamer (Enterprise Chamber). This sits inside her responsibility zone: disputes between shareholders where the board's own position is also exposed.
Where this sits
This question sits inside corporate law and governance, next to how the holding structure was put together; see holding formation. For the ownership position both routes depend on, a structure report sets out the current entities, the filings each carries, and the ownership chain, with pricing shown on the report page itself. A comparable filing pattern elsewhere is set out in structure report filings for Italy.
If you are deciding which route to start this week, a route note sets out the fork above against your actual facts and dates, before you commit to either proceeding.
Last legal review: 2026-10-01