4.7.1 General

Directors are not generally held to be liable, except where "serious blame" (ernstig verwijt) attaches to them or they have been guilty of "manifestly improper management" (kennelijk onbehoorlijk bestuur). Case law gives some guidance on this point.

The principle of joint and several liability (hoofdelijke aansprakelijkheid) is characteristic of Dutch law and can be seen as a logical consequence of the tradition of consensus and collegiate boards.1 Joint and several liability was introduced in article 45 of the 1838 Commercial Code and repeated in article 47c of the 1928 Commercial Code, which was copied from section 31 of the 1876 Cooperative Associations Act. The text of article 2.9 DCC is stil the same. The idea is that all management board members are equal and have open discussions with each other, and thus have a basic knowledge of what their colleagues are doing. The system of Dutch corporate liability law retains the joint and several liability model, but applies it on case-by-case basis and in a more nuanced way, with some exemptions and/or grounds for exculpation (disculpatie).

The concept of joint and several liability for all acts and omissions is based on articles 2.9 (liability to the company), 2:138/248 (liability in bankruptcy), 2:139/249 (liability for misleading accounts) and 6:162 (liability for tort) DCC. Basically, supervisory board members are held to the same standard of liability by way of articles 2:149/259 and 2.150/260 DCC, but only in their specific, different role of supervision. There is also a tradition of joint responsibility of both boards.

All the articles mentioned provide for the possibility of exculpation as defined by case law. Case law on article 2:9 DCC is limited, because in the Netherlands the company rarely claims that its directors are liable. The main case is of 1997.2 There is concern in the Netherlands that non-executive directors on a one-tier board might possibly be held to a higher standard of liability than supervisory board members on a two-tier board. The Staleman v. Van de Ven case gives some guidance by listing circumstances that can be relevant for exculpation, including the "division of tasks and guidelines for the board". It is important to note that in his answer to questions of the Dutch Senate3 (the upper house of parliament) concerning the Act on one-tier boards the Minister of Public Safety and Justice referred to the importance of the Staleman v. Van de Ven case. He adds that in principle a director is not liable for damange caused by another director, except if there is also serious blame against him, because he took no measures or should have informed himself better. He adds that although there is a principle of joint and several liability directors should not be held liable too easily. There should be room for creativity and risk taking. These answers are consistent with earlier answers to the Second Chamber.4 This helps to explain the text of the present and future articles 2.9 DCC, which exculpate a director who can prove that the default was committed in an area outside his remit and that serious blame does not attach to him The discussion about this aspect and the relevance for a one-tier board as well as examples of divisions of tasks are described below.

It is therefore important to describe the tasks of inside and outside directors clearly in corporate documentation, as is customary in the UK and US, since this can be used as an argument for exculpation.5