On 7 February 2012 the Appeal Court of Amsterdam made a decision in the appeal that Ajax had filed against the decision from the interlocutory court of the District Court of Amsterdam dated 12 December 2011.

In its decision, the appeal court prohibited the four other members of Ajax’s Supervisory Board from taking any (further) steps in effecting the proposed appointment of Louis van Gaal and Martin Sturkenboom as directors at Ajax. Ajax will incur a judicially imposed penalty to Johan Cruijff of € 25,000 for every violation of the prohibition.

What had happened?
In November 2011 Ajax’s Supervisory Board adopted resolutions to appoint Louis van Gaal and Martin Sturkenboom as directors at Ajax. Johan Cruijff is one of the five members of the Supervisory Board. The Supervisory Board met twice in November. Johan Cruijff was absent from both meetings. After he was notified of the Supervisory Board’s decision making, Johan Cruijff brought interlocutory proceedings against Ajax and the other members of the Supervisory Board. The interlocutory court found that the Supervisory Board’s resolutions to start the appointment process were not void or voidable. However, the judge did suspend the resolutions for the proposed appointment of Van Gaal and Sturkenboom for a period of three months.

AJAX did not agree with the interlocutory court’s decision and filed an appeal against this decision. The appeal court found that the decision making of the Supervisory Board was seriously flawed. Firstly, the notice period for convening the first meeting had been far too short. The meeting was announced at seven am and the meeting took place at four pm that same day. Secondly, the notice convening the meeting did not mention that the decision making would be related to Messrs Van Gaal and Sturkenboom. The appeal court found therefore that the announcement of the topics to be discussed had been entirely insufficient. According to the appeal court, this combination of factors makes it plausible that there had been a preconceived plan to ensure that Johan Cruijff would not be able to exert any actual influence on the decision making. The argument that the same resolutions would have been adopted if Johan Cruijff were indeed at the meeting does not hold up. The appeal court then found it plausible that a judge in the proceedings on the merits of the case would allow the voidability of the resolutions. It is also significant that Cruijff was in no way able to participate in the proposed decision making.

Decision from the Appeal Court of Amsterdam
The appeal court has prohibited Ten Have et al. from taking any (further) steps towards carrying out the proposed resolutions of 16 and/or 25 November 2011 to appoint Van Gaal and Sturkenboom as directors under the articles of association, subject to incurring a penalty payable to Cruijff of € 25,000 for every violation of the prohibition, to a maximum of € 500,000.

Ton Lekkerkerker