Introduction
A director of a company carries considerable responsibility. When things go wrong, that responsibility can become personal and the director's private assets serve as recourse. Dutch law provides not one regime but a series: liability towards the company itself, towards creditors, on distributions, for misleading annual accounts, around incorporation, in bankruptcy, and for tax debts and pension contributions. Each basis has its own threshold, its own allocation of the burden of proof and its own route of escape. They are set out below, followed by the defences that cut across all of them.
Towards the company: Section 2:9 DCC
Every director owes the legal entity the proper performance of their duties (Section 2:9 DCC). The test is whether the director can be seriously blamed, assessed against all the circumstances: the nature of the activities, the risks they entail, the division of tasks within the board, the applicable guidelines and the information the director had (Supreme Court 10 January 1997, ECLI:NL:HR:1997:ZC2243, Staleman/Van de Ven). Acting contrary to provisions of the articles that protect the company is a weighty circumstance which in principle establishes liability, but the court must expressly address the director's rebuttal (Supreme Court 3 February 2023, ECLI:NL:HR:2023:146). Liability is collective: each director is liable in full unless, having regard to the division of tasks, no serious blame attaches and the director was not negligent in taking measures (subsection 2). The duty to complain of Section 6:89 DCC is not available as a defence (Supreme Court 26 April 2024, ECLI:NL:HR:2024:681).
Towards creditors: Section 6:162 DCC
A creditor left unpaid can hold the director personally liable in tort. The framework distinguishes two categories (Supreme Court 8 December 2006, ECLI:NL:HR:2006:AZ0758, Ontvanger/Roelofsen). The first is the Beklamel standard: a director who enters into an obligation on the company's behalf while knowing or having to understand that it will not perform and will offer no recourse acts wrongfully. The second concerns the director who brings about or permits non-performance; there personal serious blame is required. Selective payment falls under that second category, though the mere sequence of payments does not decide the matter: what counts is the carelessness, with a personal interest weighing heavily (Supreme Court 17 January 2020, ECLI:NL:HR:2020:73). Where the director acts in their own right, the ordinary standard applies without an elevated threshold (Supreme Court 23 November 2012, ECLI:NL:HR:2012:BX5881, Spaanse Villa). Within a group, the blame must be substantiated per legal entity (Supreme Court 12 June 2026, ECLI:NL:HR:2026:912).
More on the director whose company does not pay and offers no recourse
On distributions: Section 2:216 DCC
A distribution may be made only to the extent that equity exceeds the reserves required by law or by the articles (Section 2:216(1) DCC). On top of that comes the distribution test: the resolution has no effect without the board's approval, and the board must withhold it where it knows or ought reasonably to foresee that after the distribution the company will be unable to continue paying its debts as they fall due (subsection 2). If the company indeed cannot continue paying, the directors who knew or ought to have foreseen this at the time are jointly and severally bound towards the company for the shortfall caused by the distribution, with statutory interest from the day of the distribution (subsection 3); set-off is excluded. A director escapes by proving that the distribution is not attributable to them and that they were not negligent. The recipient is liable too where they knew or ought to have foreseen the position, up to the amount received. For subsection 3 the de facto director is treated as a director (subsection 4).
For misleading annual accounts: Sections 2:249 and 2:139 DCC
Where the annual accounts, published interim figures or the management report give a misleading picture of the company's position, the directors are jointly and severally liable towards third parties for the resulting loss (Section 2:249 DCC for the BV, Section 2:139 DCC for the NV). This basis stands apart from bankruptcy and from the question whether the company still offers recourse: the third party who relied on the figures and suffered loss as a result, for instance a buyer of shares, a financier or a supplier who extended credit, addresses the directors directly. The regime covers not only the annual accounts but also interim figures and the management report, in so far as those have been published. A director who proves that the misleading picture is not attributable to them is not liable; the burden of that exculpation therefore rests on the director, while the third party need only allege and prove the misleading picture and the loss.
Around incorporation: Sections 2:203 and 2:180 DCC
Anyone acting on behalf of a company in formation is thereby jointly and severally bound until the company ratifies the act after incorporation, unless expressly agreed otherwise (Section 2:203(2) DCC, and Section 2:93(2) DCC for the NV). Ratification does not automatically release the person who acted: if the company fails to perform the ratified obligation, that person remains jointly and severally liable for the loss where they knew or could reasonably have known that the company would be unable to perform. That knowledge is presumed where the company is declared bankrupt within a year of incorporation (subsection 3). Directors are moreover obliged to have the company entered in the commercial register; until that filing is made they are jointly and severally liable alongside the company for every act performed during their management by which the company is bound (Section 2:180(2) DCC, and for the NV Section 2:69(2) DCC, which also imposes capital requirements).
In bankruptcy: Sections 2:248 and 2:138 DCC
Where the board has manifestly performed its duties improperly and that is plausibly an important cause of the bankruptcy, every director is jointly and severally liable to the estate for the deficit (Section 2:248 DCC for the BV, Section 2:138 DCC for the NV). The claim can only be based on the three years preceding the bankruptcy. If the records were not in order (Section 2:10 DCC) or the annual accounts were filed late (Section 2:394 DCC), improper performance is established and causation is presumed; a minor omission is disregarded. To rebut, another important cause suffices, and it need not be external (Supreme Court 30 November 2007, ECLI:NL:HR:2007:BA6773, Blue Tomato; Supreme Court 9 July 2021, ECLI:NL:HR:2021:1099). The director may exculpate (subsection 3), the court may mitigate on exhaustively listed grounds (Supreme Court 13 May 2022, ECLI:NL:HR:2022:691), and the de facto director is caught as well (subsection 7).
More on Section 2:248 DCC: who bears the estate deficit
More on the de facto director under Section 2:248(7) DCC
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Tax debts and pension contributions: Section 36 CSTA 1990
For the wage tax, VAT, excise duties, environmental levies and gaming tax of a body subject to corporate income tax, every director is jointly and severally liable (Section 36 of the Collection of State Taxes Act 1990). Everything turns on the notification of inability to pay: the company must inform the collector in writing without delay that it cannot pay, and provide information and documents on request. Where that notification was made in time and correctly, the director is liable only if it is plausible that the non-payment results from manifestly improper management attributable to them in the three years before the notification. Where it was not made, non-payment is presumed attributable to the director, who is admitted to rebut that presumption only after first making it plausible that the failure to notify is not attributable to them. Section 23 of the Mandatory Occupational Pension Schemes Act 2000 lays down a near-identical scheme, under which a notification once given need not be repeated while the arrears continue (Supreme Court 21 May 2021, ECLI:NL:HR:2021:754).
Reaching the director behind the director: Section 2:11 DCC
Where the board seat is held by a holding company, the liability of that corporate director also rests jointly and severally on everyone who was a director of it when the liability arose (Section 2:11 DCC). The provision creates no liability of its own but carries an existing one through, and so prevents a natural person from sheltering behind an interposed legal entity. It applies to every statutory basis set out above, including Section 6:162 DCC. The creditor need not separately allege that the second-tier director can personally be seriously blamed; that director can still avert liability by alleging and, if necessary, proving that no serious personal blame attaches in respect of the conduct on which the liability rests (Supreme Court 17 February 2017, ECLI:NL:HR:2017:275). In practice Section 2:11 DCC therefore shifts the burden of proof onto the director.
Discharge, resignation and limitation
Discharge offers less protection than directors often assume, and it does not arise of its own accord. Adoption of the annual accounts by the general meeting expressly does not constitute discharge (Section 2:210(3) DCC for the BV, Section 2:101(3) DCC for the NV); a separate resolution is required. There is one exception: where all shareholders are also directors, signature of the annual accounts counts as adoption and that adoption does constitute discharge, unless the articles exclude it (Section 2:210(5) DCC).
Once granted, discharge reaches no further than what appears from the annual accounts or was otherwise disclosed to the meeting before adoption (Staleman/Van de Ven). Concealed facts fall outside it. Against the trustee it does not work at all: Section 2:248(6) DCC provides that a discharge does not bar the claim for manifestly improper management.
Nor does stepping down have a liberating effect: resignation does not end liability for conduct during the period in office. A claim is in principle time-barred five years after the injured party became aware of both the damage and the liable person (Section 3:310 DCC), but between a legal entity and its directors an extension ground applies (Section 3:321(1)(d) DCC), so that period does not expire for the internal claim while the director remains in office.
What determines the outcome
Whichever basis is chosen, the outcome is rarely determined by the standard alone but by the evidentiary position. Under Sections 2:9 and 6:162 DCC everything turns on whether the serious blame can be substantiated concretely. Under Section 2:248 DCC and Section 36 CSTA the centre of gravity shifts to the presumptions: records, filing and the notification of inability to pay decide who must prove what. Under Sections 2:216, 2:249 and 2:203 DCC the exculpation rests on the director. For the director addressed it therefore pays to separate the bases rather than run a single defence, and in group structures to keep the claims per legal entity apart.
More on the cassation case law: 20 Supreme Court judgments
More on the case law at first and second instance: references under Section 2:248 DCC