4.7.2.1 The company

Messrs Staleman and Richelle were consecutive CEOs of the Van de Ven group of car sales and car rental companies. They had mismanaged the companies by making disadvantageous loans to Easy Rent at a rate of interest that was lower than the interest their own companies paid their bank (NMB, which is now part of ING). They let Easy Rent's debt run up too high and made many other lasting arrangements that were both chaotic and disadvantageous for the Van de Ven companies. In 1988 the general meeting had issued all the directors with a discharge from their obligations based on the accounts. However, the accounts were not clear on the loans to Easy Rent and their conditions. The Van de Ven companies held Staleman and Richelle liable for the losses of the companies (the equity had gone from NLG 2.3 million positive in 1988 to €5 million negative in 1990). The companies also sued the supervisory board members for damages. The District Court dismissed the claim against the members of both the supervisory board and the management board, because they had all received a discharge from liability. Discharge is a typically Dutch company law concept. At the annual general meeting, after having discussed the accounts, shareholders are asked to give the directors a discharge from liability for their activities in the relevant year as disclosed in the accounts. After considering all the details and facts mentioned above, the Court of Appeal discerned a pattere of clearly disadvantageous arrangements with Easy Rent and concluded that all this added up to "serious blame". Management board members Staleman and Richelle were therefore held liable to the Van de Ven companies. The case against the supervisory board members was not really pursued seriously by the plaintiffs. The Court of Appeal held that the discharge for the directors could not exculpate them, as the accounts made no mention of the arrangements with Easy Rent.

The Supreme Court upheld this judgment and ruled that serious blame depends on the circumstances of the case, e.g. the nature of the company's activities, the general risks, the division of tasks, the general guidelines for the board, the information they should have had, the insight and diligence that can be expected of a director and how he has complied with this. The Supreme Court is not allowed to recheck the facts, but it did hold that serious blame attached to the directors for the disadvantageous arrangements.