Enschede, 2018-05-07

It is not uncommon that a director of a company settles payments selectively or that the company, for whatever reasons, reneges on an agreement. Basically, the company is liable.

In the event that a director had treated a third party careless, it is possible under certain circumstances to contact him. It is essential that it is possible to lodge a personal charge against the director.

In a case which was submitted to the Hoge Raad (Supreme Court of the Netherlands) (HR 30 März 2018, ECLI:NL:HR:2018:470) the claimants considered that the director’s collegial responsibility would contribute to form the requirement of a personal serious accusation in connection with illegal actions against creditors of the company. Each director would be responsible in such a case and liable for the normal course of events in such a case.

The Hoge Raad ruled that due to the personal nature of the serious accusation that the directors can be held personally liable, follows, that for the assumption of liability it must be separately determined for each director that he acted illegally and that this act (or omission) can be attributed to him. Therefore, one cannot talk in terms of “collegial responsibility” of the directors.

If a director pays the claims of a certain creditor but does not settle the debt of another creditor, the relevant creditor is not allowed to just hold all directors liable as a collegial responsibility. Directors are only liable if the director concerned can be accused personally. However, it must be taken into account that the insufficient monitoring of performance of a task by a co-director can provoke a personal liability to a director. Should a director have known or had to understand that certain actions of a co-director were illegal, he could be accused personally for not having actively monitored the company’s lawful behaviour.

Author: Irith Hoffmann, I.K.M., attorney at law

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