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Directors' liability (IVOR nr. 101) 2017/3.2.3
3.2.3 Liability for wrongful acts – article 6:162 DCC
mr. drs. N.T. Pham, datum 09-01-2017
- Datum
09-01-2017
- Auteur
mr. drs. N.T. Pham
- JCDI
JCDI:ADS399676:1
- Vakgebied(en)
Ondernemingsrecht / Rechtspersonenrecht
Voetnoten
Voetnoten
In the conclusion of Westland v. Schieke (2007), A-G Timmerman considered that under art. 2:9 DCC, the standard of liability, ‘serious reproach’, was higher than the ordinar standard of liability under art. 6:162 DCC. A mere wrongful act was insufficient to hold a director liable. Sufficient ‘serious reproach’ was required (Supreme Court, 2 March 2007, ECLI:NL:HR:2007:AZ3535 conclusion by A-G Timmerman, 2 March 2007, ECLI:NL:PHR:2007:AZ3535 (Westland v. Schieke).
Supreme Court, 8 December 2006, ECLI:NL:HR:2006:AZ0758, conclusion by A-G Timmerman, 8 December 2006, ECLI:NL:PHR:2006:AZ0758 (Ontvanger v. Roelofsen). Categories other than the typical wrongful acts in the meaning of Ontvanger v. Roelofsen, have been acknowledged to amount to serious reproach. In Supreme Court 11 February 2011, ECLI:NL:HR:2011:BO9577, par. 3.3 (Nilarco), it was considered that a wrongful act may involve ‘insufficient account of the legitimate interests of creditors and thereby limiting the possibility of redress of the creditors concerned’. In the final judgment (after referral), the Court of Appeal ultimately ruled that the director concerned, directly and indirectly derived a personal benefit from the ‘tile transaction’ while he knew or should have known that such an act would cause substantial harm to the bankrupt estate (and indirectly to the receiver as one of the creditors in the bankruptcy), Court of Appeal s-Gravenhage, 12 March 2013, ECLI:NL:GHDHA:2013:624, par. 6-10. It is important to note that the type of wrongful act may be contexually driven, however, to be able to assume personal liability, serious reproach requires that a director could have reasonably foreseen damage to the third party concerned. See also conclusion A-G Timmerman, 21 November 2014, ECLI:NL:PHR:2014:2242, par. 3.7 and 3.12, prior to Supreme Court, 27 Februari 2015, ECLI:NL:HR:22015:499 (ING v. X).
Also known as the Beklamel-norm (Supreme Court, 6 October 1989, ECLI:NL:HR:AB9521, NJ 1990, 286); again confirmed in Supreme Court, 5 September 2014, ECLI:HR:2014:2627, par. 4.3 (RCI Financial Services v. Kastrop). Moreover, the Supreme Court ruled that RCI had insufficiently stated that the damage suffered by RCI as a result of the fact that RCI did not receive first right of pledge was foreseeable at the time that the director pursued the obligation on behalf of the Kastrop companies (par. 4.5). Evidently, the Court could not infer on the basis of this circumstance that RCI, contrary to what was agreed, received a second right of pledge and suffered damage as a result (par. 4.3).
It is important to recognise that for assuming external directors’ liability, existing case law does not exclusively require foreseeability of damage on the part of a director (Ontvanger v. Roelofsen, par.3.5; Intertrust v. Ontvanger, par. 3.6.2). For instance in Supreme Court, 4 April 2014, ECLI:NL:HR:2014:829 (X v. Ingwersen), the director consciously placed the company in default of payment to the detriment of Air Holland. In the specific case, the director knew that Air Holland had a (residual) cash claim against the company. Despite this knowledge, the director decided to transfer the company’s assets to a sister company without making final arrangements to provide Air Holland with remedy (par. 3.2) (see also the conclusion by A-G Timmerman, 20 December 2013, ECLI:NL:PHR:2013:2389, par. 1.10, citing the Court of Appeal Arnhem, 27 November 2012, ECLI:NL:GHARN:2012:BY5416, par. 4.8-4.9).
Assink et al. 2011, p. 30.
Supreme Court, 2 March 2007, ECLI:NL:2007:AZ3535 (Westland v. Schieke). See also Supreme Court, 8 December 2006, ECLI:NL:HR:2006:AZ0758, conclusion by A-G Timmerman, 8 December 2006, ECLI:NL:PHR:2006:AZ0758, par. 5.5-5.6 (Ontvanger v. Roelofsen).
Conclusion by A-G Timmerman, 8 December 2006, ECLI:NL:PHR:2006:AZ0758, par. 5.7 (Ontvanger v. Roelofsen).
As was successfully demonstrated in Court of Appeal ’s-Hertogenbosch, 12 April 2007, ECLI:NL:GHSHE:2007:BC1129 (Berkbouw B.V.).
Directors are obliged to consider the interests of third parties, including creditors and shareholders. A claim of directors’ liability may be pursued by third parties if it is based on a wrongful act within the meaning of art. 6:162 DCC (generally accepted standards of care). For a director to be held liable, the director’s action must however also qualify as ‘seriously reproachable’.1
In Ontvanger v. Roelofsen, the Supreme Court distinguished two categories of wrongful acts that may give rise to ‘serious reproach’.2 The first category involves a director who pursues a new obligation on behalf of the company while he or she knows or should have known that the company will not be able to meet that obligation in a timely manner (e.g. insufficient liquidity) and is unable to provide sufficient recourse (e.g. insufficient solvency).3 The second category concerns a director who frustrates the payment of an outstanding amount and the possibility of recovery to the detriment of a creditor. For both forms of wrongful acts, liability is assumed if the director could have foreseen the damage to the creditors concerned.4
The degree to which a director can be considered as ‘seriously reproachable’ if there was foreseeable damage to a creditor can be best understood with respect to the legal personality of a company.5 Under Dutch company law, the company is primarily liable towards third parties (art. 2:5 DCC) as distinct from a directors’ personal liability towards that third party, the latter being regarded as a secondary form of liability.6 In the conclusion of Ontvanger v. Roelofsen, A-G Timmerman considered that some knowledge on the part of the director regarding risk of damage to a creditor is insufficient for holding a director liable.7 A stricter interpretation of serious reproach requires that the director could have reasonably foreseen that the movement of the company’s assets would be detrimental to the creditor concerned. Accordingly, directors are given the opportunity to demonstrate that, in the light of the circumstances, they could not in fact have reasonably foreseen damage to creditors.8