4.7.6 Summary of liability

In the Netherlands there have been only a few cases where a company has filed a claim against its directors. An example is Staleman v. Van de Ven, which describes many circumstances that are important for serious blame to be applicable, such as interaal guidelines and description of functions. The shareholder has direct claim for tort, including misrepresentation of accounts. The recent Dutch class actions legislation could widen the circle of plaintiffs and causes.

The liquidator has a good chance of collecting amounts from the directors if there has been sloppy accounting or a failure to file accounts. Creditors can claim if a director, when entering into a contract, knew the company would not be able to pay, as in the Beklamel case. The Netherlands has a tradition of consensus-seeking or collegial boards that keep each other informed. In consequence, joint and several liability applies to all directors. Usually the management and supervisory boards are held liable together. In cases, where management board members are seriously culpable the supervisory board members are often deemed to have known unless they can show that the relevant default was not part of their task and that they did not have to take any action. In such cases exculpation might be possible.

There is still concern that in a one-tier board system a non-executive director will be more readily held liable than a supervisory board member. This concern is exaggerated (a) because directors are liable only in cases of serious blame or obvious improper management and (b) in such cases not only non-executive directors but supervisory board members too should have known and taken action. The most recent reply of the Minister of Safety and Justice of 2 May 2011 reconfirms the importante of the Staleman v. Van de Ven doctrine, i.e. that courts should look at all the facts concerning a director's actions, including his job description.