8.4.2 False (co-)policymakers

In the second part of this chapter, the author focuses his attention on the liability of (co-)policymakers on the basis of the general doctrine of tort (section 6:162 DCC). It starts with an explanation of the applicability of this provision to (co-)policymakers. Subsequently, the author considers whether this (co-)policymaker is the same as the one who can be held liable by virtue of an assimilation. He concludes that this is not the case and that the question of qualification in the application of section 6:162 DCC is not really necessary. The false policymaker distinguishes itself in the qualification question from the actual policymaker by the requirement typical of the latter, that he or she must have acted as if he or she were a director. In the light of section 6:162 DCC, the concept of the (co-)policymaker is erroneously assigned a functional meaning which leads to an unnecessary expansion of persons who can be held liable as a director on the grounds of a wrongful act. This is detrimental to the exceptional nature of the liability of this figure, as intended by the legislator.

This qualification issue is followed by a critical explanation of the standard used in assessing the liability of false (co-)policymakers. Currently, this standard is equal to the standard that is used when assessing the liability of directors towards creditors of the company on the grounds of section 6:162 DCC. This requires that serious blame can be attributed to the director personally. Because the common standard of section 6:162 DCC is exchanged for this special standard, a higher standard for liability applies to directors than outside cases of director’s liability. The author argues that the justifications for accepting this higher threshold for liability do not apply to the (co-)policymaker. Consequently, this special standard cannot be applied in respect of the (co-)policymaker. Nevertheless, current case law shows that the liability of (co-)policymakers on the basis of section 6:162 DCC also requires that serious blame can be attributed to the (co-)policymaker personally.

Finally, the author discusses the application of section 2:11 DCC in the event of liability of (co-)policymakers pursuant to section 6:162 DCC. Since 2017, it has been established that the transfer of liability from legal entity-directors to their directors applies to all cases in which directors are held liable in their capacity. However, according to the author, there is no room to apply section 2:11 DCC when the liability of a (co-)policymaker is based on section 6:162 DCC. After all, both sections of the law lack a provision that provides for an equation of the (co-)policymaker with directors.