22.6.3.1 Culpable undercapitalization

Shareholders can not only expose creditors to unreasonable risks by withdrawing capital from the company, but they can already do so by creating an inadequate financial structure upon the company’s incorporation or at the time the activities are commenced or changed. In my opinion, the fact that the law does not require (or no longer requires) a minimum equity upon incorporation of a BV does not detract from the unwritten rule that shareholders must make an effort to properly fund the company. Shareholders are not required to provide the best possible funding of the company. However, I believe that the shareholder who knows or should realize that the funding is inadequate and who can prevent or cancel the establishment of the financial structure is acting wrongfully by nevertheless rendering his assistance in the establishment or maintenance of the financial structure. Due to the risks and uncertainties that typically surround the start of a new enterprise, it should not be rashly assumed that the shareholder could have foreseen the continuity problems. If it is nevertheless established that the shareholder should have foreseen the continuity problems at the time of incorporation, culpable undercapitalization is involved in the definition that I gave. There may be a variety of causes for culpable undercapitalization. For example, the company may have been equipped with insufficient equity to absorb reasonably foreseeable setbacks. In addition, undercapitalization can result from the fact that the company’s profitability is negative, because it only bears the costs of the business that is run by the group. The undercapitalization may also be caused by the fact that the company insufficiently covered foreseeable risks for third parties through insurance.

Liability by virtue of Section 6:162 DCC due to the creation of an inadequate financial structure first of all requires the shareholder to be directly involved in the setting up of the financial structure; in addition, the shareholder knew or must have realized that this structure was inadequate and that it would therefore lead to creditor prejudice. In my opinion, the shareholder who satisfies both requirements acts wrongfully vis-à-vis the collective creditors of the company, so that the trustee can also lodge a Peeters/Gatzen claim against the shareholder.