4.7.2.4 Creditors and third parties

In Beklamel (1989) the Supreme Court confirmed that the criterion for director's liability was whether the director should have understood at the time of entering into a contract that the company would not be able to pay in the case of bankruptcy, see note 450.

In Tax Collector v. Roelofsen (2006)1 the director had filed incorrect tax returns which resulted in lower tax payments than were due. After the company went bankrupt, it was found that there had been underpayment of taxes. The tax collector sued the director who had been responsible for the filing. The Supreme Court did not hold the director liable. The test in tort was that the director (i) understood at the time that the company would not be able to pay, which was not the case and (ii) there was serious personal blame (ernstig verwijt), which was not the case either.

In the case of Eurocommerce (2009)2 the director of Kloosterbrink B.V., a company that owned shares in Vista B.V. had convinced another shareholder of Vista B.V., Eurocommerce B.V., to guarantee bank debts of Vista B.V. although the director in question could have known that Kloosterbrink B.V. was unable to discharge its obligations. He was held liable.