Az igazgatók felelőssége Hollandiában: típusok és korlátozásuk módjai

Directors’ liability in the Netherlands (bestuurdersaansprakelijkheid) is the exception to the rule that a company bears its own debts. There are four main types: liability to the company under Article 2:9 of the Dutch Civil Code (BW), liability to creditors in tort under Article 6:162 BW, liability to the bankruptcy estate under Articles 2:138 (nv) and 2:248 (bv) BW, and liability for unpaid taxes under Article 36 of the Tax Collection Act 1990 (Invorderingswet 1990).

In almost all of them the claimant must show a serious personal reproach (ernstig persoonlijk verwijt), not merely a decision that turned out badly. The exception is where a formal duty was neglected, such as bookkeeping, filing the annual accounts or notifying the Tax Administration: then the law presumes improper management.

What does directors’ liability mean, and what not?

A Dutch bv or nv is a legal entity with its own assets and debts. A director who signs a contract on behalf of the company binds the company, not themselves.

The Dutch Supreme Court (Hoge Raad) keeps the threshold for personal liability high: a serious personal reproach, judged on all circumstances. The test is what a reasonably competent and reasonably acting director would have done at the time, not hindsight. Two distinctions organise the subject: internal liability (to the company) versus external liability (to creditors, the Belastingdienst or the estate), and fault-based liability versus statutory regimes with a reversed burden of proof.

Who counts as a director?

Anyone formally appointed as a director, from the moment of appointment, whether or not registered with the Chamber of Commerce (KVK). Registration is evidence, not the source, of the position.

Under Article 2:248(7) BW a person who determined or co-determined the company’s policy as if they were a director is treated as a director for bankruptcy liability, for example an involved shareholder, a controlling lender or a parent company. Under Article 2:11 BW, if a director is itself a legal entity, its own directors are jointly and severally liable, so a personal holding company does not shield the individual behind it.

Supervisory directors have their own duties of supervision and advice. Since 1 July 2021 the Management and Supervision of Legal Entities Act (Wet bestuur en toezicht rechtspersonen, Wbtr) also applies similar liability and conflict-of-interest rules to associations, foundations and cooperatives.

When are you liable to the company?

Under Article 2:9 BW every director must perform their duties properly and is liable to the company for improper management, unless no serious reproach can be made against them. Because management is a collective task, an individual director must show that the failure is not attributable to them and that they took steps to avert the consequences.

The claim belongs to the company, so it is usually brought by a new board or by a trustee in bankruptcy. A discharge (decharge) granted by the general meeting covers only what was apparent from the accounts and information provided, and under Article 2:248(6) BW it does not block a trustee’s claim. See our article on internal directors’ liability under Article 2:9 BW.

When are you liable to creditors outside bankruptcy?

A creditor can sue a director personally under Article 6:162 BW only if the director’s own conduct was unlawful towards that creditor and a serious personal reproach can be made. Supreme Court case law recognises two patterns.

The first is entering into obligations on behalf of the company while the director knew, or should have understood, that the company could not perform and would not offer recourse. The moment of contracting decides: contemporaneous cash-flow forecasts and minutes are the key evidence.

The second is frustrating payment, for example stripping assets or selectively paying affiliated companies or the directors themselves while third parties remain unpaid once the wind-down is decided. Taking a commercial risk that fails is not enough. Our útmutató a vállalati és csoportos felelősséghez covers group structures.

Mikor vonható felelősségre csőd esetén?

Under Article 2:248(1) BW (bv) and Article 2:138 BW (nv) every director is jointly and severally liable for the deficit in the bankruptcy if the board manifestly performed its duties improperly and this was an important cause of the bankruptcy. The trustee brings the claim, and under Article 2:248(6) BW only the three years before the bankruptcy count.

Under Article 2:248(2) BW improper performance is established if the board failed to keep proper records (Article 2:10 BW) or to publish the annual accounts on time (Article 2:394 BW), and it is then presumed to be an important cause of the bankruptcy. Under Article 2:394(3) BW the accounts must be published no later than 12 months after the end of the financial year. An unimportant failure is disregarded.

Which defences and consequences apply?

Under Article 2:248(3) BW a director escapes liability by proving that the improper performance is not attributable to them and that they were not negligent in averting its consequences. Under Article 2:248(4) BW the court can reduce the amount. Under Article 106b of the Bankruptcy Act (Faillissementswet) a director disqualification (bestuursverbod) can bar a person from board positions for up to five years. Deliberate prejudice to creditors can also lead to criminal liability; see our article on csődcsalás.

Mikor tehető felelőssé a be nem fizetett adókért?

Under Article 36(2) of the Tax Collection Act 1990 a company that cannot pay wage tax, VAT and certain other taxes must notify the tax collector in writing. Under Article 7 of the Implementing Decree, this must be done no later than two weeks after the tax fell due.

If the notification was made properly, under Article 36(3) the director is liable only if the non-payment results from manifestly improper management in the three years before the notification. If it was not made, or made late or incompletely, Article 36(4) presumes that the non-payment is the director’s fault. A comparable regime applies to unpaid contributions to an industry-wide pension fund. The notification is not an insolvency filing; make it as soon as a payment problem is foreseeable.

Which other exposures are underestimated?

Misleading annual accounts, interim figures or annual reports can make directors liable towards anyone who relied on them, under Book 2 BW. Under Article 51 of the Dutch Criminal Code (Wetboek van Strafrecht) those who ordered or actually led a criminal offence committed by the company can be prosecuted alongside it.

Under Article 2:239(6) BW a director with a conflicting personal interest may not take part in the decision. Ignoring this rule is a strong building block for a later liability claim and easy to avoid by recording the conflict in the minutes.

What reduces the risk?

Keep the records Article 2:10 BW requires, file the annual accounts within the deadline every year, and minute difficult board decisions, including the information available and the alternatives considered. Under financial pressure, meet more often, keep forecasts current and take a documented decision on whether to continue trading.

Directors and officers (D&O) insurance covers defence costs and damages within its limits and normally excludes intent and fraud; check the retroactive date and run-off cover. When you leave, resign in writing, have the resignation accepted and check that the KVK register has been updated. Under Article 3:310 BW a damages claim is time-barred five years after the injured party became aware of the damage and the liable person, and in any event 20 years after the event.

Mire kell figyelni rendezőként?

• Check that the bookkeeping meets Article 2:10 BW and that the last annual accounts were filed within 12 months.
• Check that inability to pay taxes was notified within two weeks (Article 36 Invorderingswet 1990).
• Check that conflicts of interest and difficult decisions are recorded in the minutes.
• Check your D&O policy, including notification duties, exclusions and run-off cover.
• Check that your resignation is registered with the KVK.

What should you check as a creditor or trustee?

• Check when the company’s annual accounts were filed and whether the records are complete.
• Check who actually determined policy, including shareholders or lenders (Article 2:248(7) BW).
• Check payments to affiliated parties and directors before the bankruptcy.
• Check whether a corporate director’s own directors can be held liable (Article 2:11 BW).

Mit tehetünk Önért az igazgatói felelősségbiztosítás ügyében?

termékeink felelősségbiztosítási ügyvédek, üzleti ügyvédek és a csődjogászok act for directors, supervisory directors, shareholders, creditors and trustees:

• We assess your exposure before a major decision or before you join or leave a board.
• We draft the notification of inability to pay to the Belastingdienst within the two-week deadline.
• We respond to a liability claim from a creditor, the tax collector or a trustee.
• We defend you in proceedings under Article 2:248 BW or Article 6:162 BW.
• We negotiate a settlement and coordinate with your D&O insurer.

For current practice on personal liability of bv directors, see also our article on personal liability as a Dutch bv director.

Összegzésként

• Directors are personally liable only in defined cases, usually requiring a serious personal reproach.
• Article 2:9 BW covers liability to the company; Article 6:162 BW covers liability to individual creditors.
• In bankruptcy, failure to keep records or publish accounts on time presumes liability under Article 2:248 BW.
• Notify inability to pay taxes within two weeks to avoid the presumption of Article 36(4) Invorderingswet 1990.
• Minutes, timely filings and a proper resignation are the most effective protection.

Gyakran Ismételt Kérdések