Shareholders' agreements in Luxembourg, the Netherlands and Belgium: a clause-by-clause comparison

Same clause, three legal systems, different results

A shareholders' agreement is a contract. The articles of association are the company's constitution, executed by a notary and filed in a public register. The contract binds only its signatories. The articles bind the company, every present and future shareholder and, once published, third parties. A clause that must stop a transfer, force a sale or block a resolution has to sit where it can bite.

Our note on the shareholders' agreement for a B.V. or SARL lists the twelve clauses founders need. This one goes deeper and adds Belgium. For each clause it asks what the law allows in the S.à r.l., SARL-S and SA, the B.V., and the Belgian SRL/BV and SA/NV, and where the clause must sit. Citations follow the 1915 Luxembourg law, Book 2 of the Dutch Civil Code and the Belgian Code of Companies and Associations (CSA) in our law library.

The Dutch B.V. is the most flexible: its articles can attach obligations to the shares (Art. 2:192 BW). Luxembourg has the most rigid core and almost no statutory exit. Belgium sits in between, with court-ordered expulsion and withdrawal.

Approval, pre-emption and lock-ups

Luxembourg S.à r.l. Article 710-12 is the strictest rule of the three countries. Shares cannot pass inter vivos to a non-member without the approval of members holding at least three quarters of the shares. The articles may lower that to one half. They cannot remove it: any contrary clause is deemed not written. On refusal, the members or the company have three months to buy at the articles' price or one set by the judge; otherwise the seller may complete the sale. Transfers between members are free unless the articles say otherwise, so a right of first refusal among members goes there. A transfer binds the company and third parties once notified to or accepted by it (Article 710-13). In the SARL-S only natural persons may be members, so an investor company cannot buy in at all.

Luxembourg SA. Shares are freely transferable unless the articles restrict them. Under Article 430-1 inalienability clauses must be limited in time, an approval or pre-emption clause cannot block a transfer for more than twelve months, and a transfer in breach of the articles is void. Without a price formula, the judge sets the price.

Dutch B.V. By default a seller must first offer the shares to the others pro rata, at expert value if requested, and may sell freely within three months if they do not take them all (Art. 2:195 BW). The articles may replace this with an approval clause, or exclude transfer for a specified period with the consent of all holders concerned. A transfer in breach is invalid. The safeguard is the exit: a restriction that makes transfer impossible or extremely onerous is disapplied, and a price below expert value binds only a holder who agreed to it. Every transfer needs a Dutch notarial deed (Art. 2:196 BW).

Belgian SRL/BV. By default a transfer needs the written approval of at least half the shareholders holding three quarters of the shares, not counting the shares being sold, unless it goes to a shareholder, a spouse or legal cohabitant, or relatives in the direct line (Art. 5:63 CSA). The articles may change it, and an arbitrary refusal can be overturned in court (Art. 5:64 CSA). Agreements may add restrictions but not relax those in the articles, and a transfer contrary to published articles is unenforceable against the company and third parties (Art. 5:67 CSA).

Belgian SA/NV. Shares are free unless restricted. Lock-ups must be justified by a legitimate interest, notably as to duration, and an indefinite one may be ended on reasonable notice; approval and pre-emption cannot block a transfer for more than six months (Art. 7:78 CSA).

Law and practice: Law of 10 August 1915, Articles 710-12 and 710-13, Article 720-2 (SARL-S members), Article 430-1; Dutch Civil Code, Arts 2:195 and 2:196 BW; CSA, Arts 5:63 to 5:67 and Art. 7:78 CSA.

Forcing a sale and joining one

A drag-along obliges the minority to sell on the same terms; a tag-along lets it join a majority sale. Both are valid contracts everywhere; the issues are enforcement and the transfer rules.

Enforcement. A court order comes after the buyer has gone, so practice adds an irrevocable power of attorney and escrowed transfer forms. The Dutch B.V. has a statutory version: the articles can oblige a shareholder to transfer in defined cases and give the company an irrevocable power of attorney (Art. 2:192 BW). That obligation binds future shareholders too; a drag price below expert value binds only a holder who agreed to it.

Interaction with approval clauses. A drag fails if the buyer cannot be admitted. In a Luxembourg S.à r.l. the buyer is a non-member, so the transfer of every dragged share needs the Article 710-12 approval. The drag threshold should not be lower than the approval threshold, or every party must covenant to approve. The same applies in a Belgian SRL with the default rule, and the clause should waive pre-emption. In a Dutch B.V. the articles should exempt a drag transfer from the offer regime.

Tag-along. A tag binds the seller, not the buyer: no buyer for the minority, no sale. In the articles of a Belgian company or a Luxembourg SA, the tag works as a transfer restriction: a sale without it is unenforceable or void. In a Luxembourg S.à r.l., a holder above 25% already has a veto through the approval vote.

Law and practice: Article 710-12; Dutch Civil Code, Art. 2:192 BW (obligations attached to shares, power of attorney); CSA, Arts 5:67 and 7:78 CSA.

Voting agreements, reserved matters, board appointments and information

Voting agreements. Luxembourg allows them expressly for the S.à r.l. (Article 710-20) and the SA (Article 450-2). They are void if contrary to the law or the corporate interest, or if a member undertakes to follow the company's instructions or approve its bodies' proposals; votes cast under them can bring down the resolution within six months. A member may also waive voting rights, binding on the company once notified (Article 710-19). Belgium uses almost the same text, adding that the agreement must be limited in time (Art. 5:46 CSA for the SRL, Art. 7:56 CSA for the SA). Dutch Book 2 has no equivalent: a voting agreement is an ordinary contract, policed by reasonableness and fairness (Art. 2:8 BW), and a vote cast in breach is valid, so the remedy is contractual.

Reserved matters. A veto only in the agreement does not invalidate a resolution adopted in breach; put it in the articles as a higher majority or class consent. In a Luxembourg S.à r.l., amendments need three quarters unless the articles differ (Article 710-26), and class rights need class votes (Article 710-22). In a Dutch B.V., board resolutions can be made subject to approval by another corporate body, such as a class meeting (Art. 2:239 BW). In Belgium, unlisted SAs may depart from one share, one vote (Art. 7:52 CSA), and a court can override a minority that blocks the meeting abusively (Art. 2:43 CSA).

Board seats. Dutch articles may let a class meeting appoint directors, provided every voting shareholder takes part in appointing at least one director (Art. 2:242 BW). Luxembourg S.à r.l. managers are removable only for legitimate reasons unless the articles say otherwise (Article 710-14). In a Belgian SRL, a director appointed in the articles can be removed only by amending them (Art. 5:70 CSA). A Belgian SA meeting may dismiss any director at any time (Art. 7:85 CSA), so an investor seat is a nomination right plus a voting covenant.

Information. The statutory floor is low: inspection rights (Article 710-24) and, for 10% holders, written questions and a court expert in Luxembourg (Article 1400-3), a court expert in a Belgian SRL (Art. 5:106 CSA) and the Dutch inquiry procedure (Art. 2:346 BW). Monthly reporting is contractual, with the company as a party.

Law and practice: Law of 10 August 1915, S.à r.l. chapter and Article 450-2; Dutch Civil Code, Book 2, Arts 2:8, 2:239 and 2:242 BW; CSA, Arts 5:46 and 7:56 CSA.

Good leaver, bad leaver and the price

A leaver clause is a call option whose price depends on why the manager leaves. The legal risk lies in the price.

Netherlands. The articles can oblige a shareholder to offer his shares in defined events (Art. 2:192 BW). He gets expert value unless he agreed to another price rule, as a signing founder normally has. Reasonableness and fairness can still disapply a rule whose effect is unacceptable (Art. 2:8 BW): forfeiting vested value for a resignation is harder to defend than taking back unvested shares at cost. For the tax side see our note on Dutch management equity.

Belgium. The SRL offers a corporate route no other form has: the articles may allow the general meeting to expel a shareholder for just cause or for any reason stated in the articles, after hearing him (Art. 5:155 CSA). Unless the articles say otherwise, he receives his withdrawal share: the amount paid up, capped at net asset value (Art. 5:154 CSA). The SA relies on a contractual call option; in judicial expulsion the court follows agreed valuation rules written for that case unless manifestly unreasonable (Art. 2:67 CSA).

Luxembourg. Leaver clauses are contractual. Sales to existing members need no approval under Article 710-12; a company buy-back must treat members in the same position equally (Article 710-5). A punitive discount risks moderation as a penalty clause. Plans for managers are discussed in our Luxembourg management incentive plan note, and synthetic alternatives in phantom shares, growth shares and STAKs.

Law and practice: CSA, Title 7 of Book 2 (expulsion and withdrawal) and Arts 5:154 and 5:155 CSA; Dutch Civil Code, Art. 2:192 BW.

Statutory routes and buy-sell clauses

Netherlands. The reformed dispute resolution rules have applied since 1 January 2025 (Stb. 2024, 174). Holders of at least one third of the issued capital may ask the Enterprise Chamber to order a shareholder whose conduct harms the company to transfer his shares (Art. 2:336a BW). A shareholder harmed by fellow shareholders may ask that they, or the company, take over his shares (Art. 2:343 BW). These disputes may go to arbitration, but a contractual scheme cannot make transfer impossible or extremely difficult (Art. 2:337 BW). Parties agreed on a sale but not the price may ask the Enterprise Chamber to have experts set it (Art. 2:343c BW).

Belgium. Title 7 of Book 2 of the CSA applies to SRLs and unlisted SAs (Art. 2:60 CSA). For just cause, 30% holders may ask the court to order another shareholder to sell to them (Art. 2:63 CSA), and any shareholder may ask that those who caused it buy him out (Art. 2:68 CSA). The president of the enterprise court hears both and may decide related disputes on loans and non-competes (Art. 2:62 CSA). The SRL adds resignation at the company's expense if the articles allow it, for founders from the third financial year (Art. 5:154 CSA).

Luxembourg. There is no statutory expulsion or exit for either form. A minority can seek a court expert (Article 1400-3), challenge resolutions (Article 100-22) or, in a serious case, seek dissolution, which destroys value. The agreement must do the work.

Buy-sell clauses. In a Russian roulette clause one party names a price and the other must buy or sell at it; in a Texas shoot-out both bid and the higher bidder buys. No statute governs either. The poorer party loses, so fund the clause, fix deadlines and transfer formalities, and put escalation first.

Law and practice: Dutch Civil Code, Arts 2:336a, 2:337, 2:343 and 2:343c BW; Act of 5 June 2024, Stb. 2024, 174, in force 1 January 2025; CSA, Arts 2:60 to 2:69 CSA, Art. 5:154 CSA; Law of 10 August 1915, Articles 100-22 and 1400-3.

Dividends, non-competes, forum and publicity

Distribution policy versus mandatory tests. A dividend policy is a promise to vote and cannot override the statutory tests. In a Dutch B.V. every distribution needs board approval, which the board may refuse only if it knows or should foresee that the company would not keep paying its debts; directors who approve wrongly are personally liable (Art. 2:216 BW). A Belgian SRL applies a net asset test and a twelve-month liquidity test (Arts 5:142 and 5:143 CSA); a Belgian SA has a legal reserve and a capital test (Arts 7:211 and 7:212 CSA). In Luxembourg 5% of profit goes to the legal reserve until it reaches 10% of capital (Article 710-23), the SA has a net asset test (Article 461-2), and interim dividends need authorisation in the articles and interim accounts (Articles 710-25 and 461-3). Preferences belong in the articles. A Belgian clause excluding a shareholder from profit is deemed unwritten (Art. 5:14 CSA).

Non-compete and non-solicit. These are contractual in all three countries. Only the Dutch B.V. lets the articles attach a non-compete to the shares so that it binds a purchaser (Art. 2:192 BW). The Commission's notice on ancillary restraints accepts up to three years on the sale of a business with goodwill and know-how.

Governing law and forum. Parties may choose the law of the agreement, but transfers, majorities and resolutions follow the law of the seat, whose courts have exclusive jurisdiction over the validity of resolutions under Brussels I bis. Dutch law expressly allows arbitration of expulsion and exit claims (Art. 2:337 BW).

New shareholders. A newcomer is bound only by signing a deed of adherence. Make adherence a condition of transfer approval in the articles, or in a Dutch B.V. a requirement of shareholding under Art. 2:192 BW.

Publicity. The agreement is never filed. The articles are public: in Luxembourg filed with the RCS and published in RESA, with appointments filed and published (Article 100-13); in the Netherlands deposited with the trade register; in Belgium filed at the enterprise court registry and published in the annexes to the Belgian Official Gazette, from which they bind third parties (Art. 2:18 CSA). Anything in the articles is visible to competitors. Formation is covered on our Luxembourg, Netherlands and Belgium formation pages.

Law and practice: Regulation (EU) No 1215/2012, Article 24(2); Commission Notice on ancillary restraints (2005/C 56/03); statute articles as cited above.

Where must each clause sit?

The checker applies the rules above to the standard version of each clause. It assumes an unlisted company with registered shares and does not review your drafting.

Shareholders' agreements in the Benelux: frequent questions