15.2.1.8 Directors’ liability under Book 6, Section 162 of the Dutch Civil Code

Book 6, Section 162 of the Dutch Civil Code does not play the same ‘dual role’ in the case of a restored turbo-liquidated company as Book 2, Section 9 and Book 2, Section 216(3) of the Dutch Civil Code. In contrast to the latter provisions, Book 6, Section 162 of the Dutch Civil Code cannot be seen as the cause of the restoration, because such a claim is brought by a disadvantaged creditor. When the claim under Book 6, Section 162 of the Dutch Civil Code is allowed, the compensation for damage that results from it accrues to the disadvantaged creditor. As a result nothing changes in the capital of the company. Depending on the standard under which the director is held liable, the claim under Book 6, Section 162 of the Dutch Civil Code – just like Book 2, Section 9 and Book 2, Section 216 of the Dutch Civil Code – can be seen as a consequence of the restoration.

What is striking is that wrongfully proceeding with the turbo-liquidation, according to the Terneuzen Subdistrict Court for example, does not produce an unlawful act. In my view a distinction must be made here. On the one hand, it may be a situation in which the board did not know and could not reasonably have known that assets still existed at the time of dissolution. In this situation there cannot indeed be any question of an unlawful act: there is an absence of accountability. On the other, it may be a situation in which the board did know or reasonably should have known that assets still existed at the time of dissolution. In this case all the requirements made of an unlawful act have been met and the board can therefore be held liable.

In recent years a development has been detectable in the jurisprudence on the basis of which there is a faster move to directors’ liability under Book 6, Section 162 of the Dutch Civil Code in the case of wrongfully turbo-liquidated companies. This development which can be observed in the jurisprudence is positive in my view. In this way misuse of the turbo-liquidation is curtailed and the interests of creditors are better protected.