4. What is the role of the independent directors and of the statutory auditor of the listed company?

In order to ensure that a listed company is not managed for the benefit of individual interests rather than in the interest of all shareholders, company law stipulates that it shall appoint independent directors. This means that in the event of conflicts of interest, and independently of the possible application of conflict of interest rules (see FAQ 5) , a critical attitude on the part of the independent directors is of crucial importance for protecting the rights of minority shareholders.

The FSMA urges independent directors, if it should be necessary in order for them to fulfil their role, to call upon their own legal advisors and/or valuation experts.

For contributions in kind, mergers, divisions or equivalent operations, the statutory auditor is tasked with a special audit assignment see FAQ 3). In the case of a merger or division, the task of the statutory auditor is to determine whether the information contained in the proposal for merger or division and, where applicable, in the reports by the board of directors, enables the general meeting to take a fully informed decision, and in particular to state the extent to which the share exchange ratio is reasonable from the point of view of the shareholders of the company to which he or she reports.

In the case of a contribution in kind, the role of the statutory auditor remains, also under the Code of Companies and Associations (Article 7:197), limited to commenting on the description of the assets being contributed or transferred, as well as on the valuation and the valuation methods used by the management body when determining the remuneration (see FAQ 3). The FSMA notes that the explanatory statement of Article 7:197 confirms that the statutory auditor must give an opinion on the reasonableness of the valuation and of the remuneration granted as counterpart for the contribution, by analogy with the audit assignment pertaining to the exchange ratio in the case of a merger. That reasonableness test is, however, not mentioned in the text of the Article itself. Nevertheless, the FSMA continues to be of the opinion that the statutory auditor must pay particular attention to the valuations used in such operations as well. A critical attitude on the part of the statutory auditor as regards the determination of the exchange ratio is of great importance for the protection of the rights of the minority shareholders.

The FSMA is always prepared to exchange views confidentially with individual directors and/or the statutory auditor, and will in any case contact them if it should consider it opportune.