Written by Martin Poelman
Published on 13 July 2026
Introduction
A previous publication focused on the sanctions imposed by the EU on Russia. In it, the important EU Regulation No 269/2014 was discussed (the Sanctions Regulation). The Sanctions Regulation plays an important role in some Dutch court cases. This publication deals with the exercise of voting rights.
Voting rights in companies
A court case in 2022 concerned the question whether the obligation to ‘freeze’ under Article 2(1) of the Sanctions Regulation also extends to the exercise of a depositary receipt holder’s meeting and voting rights. The case concerned 41.82% of the depositary receipts in Fortenova Group TopCo B.V., which in turn holds (indirectly) the shares in Fortenova Grupa d.d. (Fortenova), based in Zagreb, Croatia. Fortenova is one of Southeast Europe’s largest companies active in retail, food production and agriculture, with annual sales of more than €5 billion and more than 47,000 employees. The certificates had been issued by Amsterdam-based Fortenova Group Stak Stichting (Fortenova STAK). Holder of the certificates is Moscow-based SBK Art LLC (SBK). The parties agreed that SBK, as an (indirect) subsidiary of EU sanctions-listed Sberbank, is also subject to the sanctions regime. This meant that the certificates held by SBK in Fortenova were also ‘frozen’ under the Sanctions Regulation (paragraph 4.5). Fortenova, however, took the view that the freezing also meant that no use could be made of the meeting and voting rights attached to the depositary receipts (paragraph 4.6). That was the issue at stake in these summary proceedings. The court in summary proceedings of the District of Amsterdam held that the text of the Sanctions Regulation does not provide a concrete answer and the Regulation must therefore be interpreted (paragraph 4.7). In doing so, the European Commission’s interpretation of the regulation outweighed that of the Dutch Ministry of Finance (paragraph 4.15: ‘as the Commission’s answers take precedence over those of the Dutch Ministry of Finance’). The court in summary proceedings ultimately ruled that meeting and voting rights could indeed be exercised and considered, among other things (legal consideration 4.11):
“In a vote such as the present one (on a change in corporate governance) that does not bring about any change in respect of the frozen certificates per se, the purpose of the sanctions will not be affected. Indeed, whether or not SBK ART votes against the proposed change will in no way be able to cause it to flow funds or resources to Russia as a result of that vote.”
For the judgment, see ECLI:NL:RBAMS:2022:5466.
In appeal, this judgment was annulled. According to the Amsterdam Court of Appeal (ruling in preliminary relief proceedings), the sanctions rules prevent the depositary receipt holder from being admitted to a meeting of depositary receipt holders of the trust office and from exercising the voting rights attached to its depositary receipts (see for the judgment: ECLI:NL:GHAMS:2022:3691). A factor here was that after the September 2022 summary judgment, the European Commission had amended and clarified its answers to some frequently asked questions (“FAQ”). At the time of the summary proceedings in September 2022, the answer to question 15 still read as follows:
15. What measure (if any) should competent authorities adopt in respect of listed shareholders with qualifying holdings in an EU bank? Is the freezing of voting rights appropriate/required? In that case, should a proportionality approach be applied, e.g. by starting with increased monitoring of governance?
“Shares qualify as ‘funds’ and therefore must be frozen if belonging to, owned, held or controlled by a listed person. Accordingly, this means that it is prohibited for the listed person to exercise any voting rights which could lead to any change in relation to these shares (e.g. in their volume, amount, location, ownership, possession, character, destination etc.).”
But this explanation was supplemented by the European Commission on 9 November 2022 with the following passage:
“Either way, since they can be used to obtain funds, goods or services, voting rights as such can be considered an intangible economic resource. This means they should be frozen, i.e. prevented from being used to obtain funds, goods or services in any way. Therefore under no circumstance nor for any purpose may listed shareholders exercise directly or indirectly their voting rights in a company or fund. Voting rights must be fully frozen.”
By doing so, the European Commission confirms that voting rights may not be used. The Amsterdam Court of Appeal considered that this ‘guidance’ from the European Commission is an authoritative source for the interpretation of the sanctions rules contained in the regulation and is also in line with the interpretation of the Dutch Ministry of Finance. According to the Amsterdam Court of Appeal, the addition in the latest update is also in line with the principle that sanction measures should have maximum effect and be clear and predictable. According to the Court of Appeal, a system whereby it must always be considered for each agenda item whether voting rights may be exercised in view of the sanctions regulations or whether an exemption must be requested from the competent authorities is not in line with the desired effectiveness of the sanctions regulations (paragraph 4.9). The Amsterdam Court of Appeal therefore set aside the judgment and dismissed SBK’s claims. Whether this is the correct interpretation of the Sanction Regulation is not entirely certain. After all, the final word on this is up to another court, namely the Court of Justice of the EU in Luxembourg.
