დირექტორის პასუხისმგებლობა ნიდერლანდებში: როდესაც დირექტორები პირადად იხდიან

As a director of a Dutch BV or NV you are in principle not liable for the company’s debts: the company owes them itself. You become personally liable only if you can be seriously blamed, and the law works that out through four routes: liability towards the company, liability towards creditors, liability for the deficit in bankruptcy, and liability for unpaid taxes. The most important exception is the bankruptcy route, where late filing of the annual accounts alone can shift the burden of proof onto you.

Below we explain each route, the defences, and what directors and creditors should each check. The rules sit in Book 2 and Book 6 of the Dutch Civil Code (BW) and in the Collection of State Taxes Act 1990 (Invorderingswet).

When is a director liable towards the company?

Under Article 2:9 BW, every director must perform his duties properly. A director is liable to the company only if he can be seriously blamed (ernstig verwijt), judged on all the circumstances (Supreme Court 10 January 1997, Staleman/Van de Ven, ECLI:NL:HR:1997:ZC2243).

Relevant circumstances are the nature of the business, the risks involved, the division of tasks within the board and the information the director had. Acting contrary to the articles of association or a clear statutory rule usually amounts to a serious reproach. Article 2:9 also makes board responsibility collective: each director is liable for the whole, unless he shows that the matter did not fall within his tasks and that he was not negligent in taking measures.

Typical cases are entering into risky transactions without adequate information, ignoring a conflict of interest, and failing to keep proper books under Article 2:10 BW. A discharge (decharge) granted by the general meeting only covers what was apparent from the annual accounts or otherwise disclosed, and it has no effect against the trustee in bankruptcy or third parties.

When is a director liable towards creditors?

A creditor can hold a director personally liable in tort under Article 6:162 BW. The creditor must prove that the director can be seriously and personally blamed.

The Supreme Court distinguishes two situations (Ontvanger/Roelofsen, 8 December 2006, ECLI:NL:HR:2006:AZ0758). First, the director enters into an obligation on behalf of the company while he knew or should have understood that the company could not perform and offered no recourse. Second, the director causes or allows the company not to pay, for example by selective payment to a related company, while he knew or should have understood that this would leave the creditor without recourse.

Two further routes are easy to overlook. Under Article 2:203 BW, a person who acts in the name of a BV not yet incorporated is personally bound until the company ratifies the act. Until a new BV is registered in the trade register, its directors are jointly and severally liable with the company (Article 2:180 BW).

როდის არის დირექტორი პასუხისმგებელი გაკოტრების შემთხვევაში?

If a BV goes bankrupt, the trustee (curator) can hold each director jointly and severally liable for the whole deficit. This requires manifestly improper management in the three years before the bankruptcy that is plausibly an important cause of the bankruptcy (Article 2:248 BW; Article 2:138 BW for the NV).

Manifestly improper management is a heavier standard than the serious reproach of Article 2:9 BW. It exists where no reasonably acting director would have acted in the same way in the same circumstances.

კანონით გათვალისწინებული პრეზუმფცია

If the board has not complied with the bookkeeping duty of Article 2:10 BW, or has filed the annual accounts late under Article 2:394 BW, improper management is established by law. It is then presumed that this was an important cause of the bankruptcy. The director can rebut that presumption by showing that other facts, such as the loss of a major customer, caused the bankruptcy.

ლიმიტები და თავდაცვა

A director who shows that the improper management cannot be attributed to him, and that he was not negligent in taking measures to prevent its consequences, is not liable. The court may reduce the amount if it is unreasonably high given the nature and seriousness of the improper management (Article 2:248(4) BW). A minor delay in filing is disregarded.

When is a director liable for unpaid taxes?

Under Article 36 of the Collection of State Taxes Act 1990, a director can be held liable for unpaid payroll tax and VAT of the company. The key step is a timely notification of inability to pay to the tax authorities (Belastingdienst).

The notification must be made within two weeks after the tax became due. If it is made on time, the tax authorities must prove that the non-payment was due to manifestly improper management in the three years before. If it is not made on time, improper management is presumed and the director can only escape by showing that the late notification was not his fault. A similar regime applies to contributions owed to a compulsory sectoral pension fund.

Who counts as a director?

Liability is not limited to directors registered in the trade register. Someone who in fact determined the policy of the company as if he were a director is treated as a director for bankruptcy liability (Article 2:248(7) BW).

If the director is itself a legal entity, for example a management BV, the liability rests jointly and severally on the directors of that entity as well (Article 2:11 BW). Resigning does not end liability for acts during your term, and the three-year period in bankruptcy looks back from the bankruptcy date, not from your resignation.

When does liability become criminal?

A legal entity can commit a criminal offence (Article 51 Dutch Criminal Code). The Public Prosecution Service (OM) can then prosecute the company, those who ordered the conduct, those who actually directed it, or both.

Examples are fraud with the accounts in the run-up to a bankruptcy and tax fraud. Criminal liability is separate from civil liability: an acquittal does not exclude a civil claim by the trustee.

How do you reduce the risk as a director?

Almost every successful defence rests on a contemporaneous record showing that a decision was taken on adequate information. Keep that record as you go.

• Minute board decisions with the information on which they were based, including dissenting views.
• Keep the books up to date in line with Article 2:10 BW and file the annual accounts on time.
• Apply the distribution test of Article 2:216 BW before any dividend is paid.
• Notify inability to pay taxes within two weeks under Article 36 of the Collection of State Taxes Act.
• Check whether a directors and officers (D&O) insurance policy is in place and what it excludes. Read more on პასუხისმგებლობის დაზღვევა ნიდერლანდებში.

რა უნდა შეამოწმოთ, როგორც დირექტორმა?

• Are the annual accounts of recent years filed with the KVK within the statutory periods?
• Can the administration show the company’s rights and obligations at any time?
• Are new obligations still covered by realistic expectations of payment?
• Are payments to related companies or shareholders justified when other creditors remain unpaid?
• Has an inability to pay payroll tax or VAT been notified within two weeks?
• Have dissenting views on risky decisions been recorded in the minutes?

რა უნდა შეამოწმოთ, როგორც კრედიტორმა?

• When the contract was concluded, did the director know or should he have known that the company could not pay?
• Was the company’s money moved to related parties while your invoice stayed unpaid?
• Has the company filed its annual accounts on time? Check the KVK რეგისტრაცია.
• Is there a bankruptcy, in which case the trustee and not you brings the Article 2:248 claim?
• Can you prove the facts with emails, minutes or bank statements?

What can we do for you with director liability?

ჩვენი კორპორატიული სამართალი team acts for directors, companies, creditors and trustees.

• We assess where your real exposure lies under Articles 2:9, 6:162 and 2:248 BW and Article 36 of the Collection of State Taxes Act.
• We respond to a liability claim from a trustee or creditor and build the defence from your records.
• We prepare and file the notification of inability to pay with the tax authorities.
• We review whether your D&O policy covers the claim and notify the insurer on time.
• We bring liability claims against directors on behalf of creditors.

შემაჯამებელი

• The company owes its own debts; a director is liable only if he can be seriously blamed.
• Towards the company: Article 2:9 BW; towards creditors: Article 6:162 BW, following Ontvanger/Roelofsen.
• In bankruptcy: Article 2:248 BW, with a presumption if the books or annual accounts are not in order.
• For payroll tax and VAT: notify inability to pay within two weeks (Article 36 Collection of State Taxes Act).
• De facto directors and directors of a corporate director can be liable as well.

ხშირად დასმული შეკითხვები