15.2.1.6 Directors’ liability under Book 2, Section 9 of the Dutch Civil Code

When a turbo-liquidated company is restored, the risk of personal liability arises for directors. Book 2, Section 9 of the Dutch Civil Code plays a striking ‘dual role’ in the case of a restored turbo-liquidated company. On the one hand, Book 2, Section 9 of the Dutch Civil Code can be regarded as the cause of the restoration. In the literature, the claim under Book 2, Section 9 of the Dutch Civil Code is regarded as an asset, on the basis of which the turbo-liquidated company can be restored or become insolvent. That the claim of Book 2, Section 9 of the Dutch Civil Code constitutes an asset within the meaning of Book 2, Section 23c(1) of the Dutch Civil Code is also logical, since it is a claim of the company itself. This has the result that when a claim is allowed under Book 2, Section 9 of the Dutch Civil Code, capital enters the company which comes into consideration for the winding up.

On the other hand, the liability under Book 2, Section 9 of the Dutch Civil Code can be seen as a consequence of the restoration. Without restoration the company would not after all exist and the director of a company could also not be held liable. A good example of a situation in which Book 2, Section 9 of the Dutch Civil Code can play an important part is that in which the general meeting adopts a dissolution resolution on the basis of financial information wilfully given incorrectly by the board.