Corporate opportunity: the opportunity that belongs to the company
The De Rotterdam acquisition fee ends up with a new company
The sale of the Rotterdam office building De Rotterdam earned an intermediary company an acquisition fee of over half a million euros. Before that fee had been received, two of the three collaborating partners diverted it to a newly incorporated company — behind the back of the third partner. The Rotterdam District Court ordered them to pay €200,000 in damages (ECLI:NL:RBROT:2021:12637).
The three had jointly incorporated a company in 2015 to act as an intermediary in real estate transactions. That company brokered the sale of De Rotterdam — an eventual purchase price of €352 million — and had a concrete prospect of the fee. When the collaboration with one of the partners broke down at the end of 2015, the other two diverted that fee in June 2016 without compensating the joint company.
The investigator previously appointed by the Enterprise Chamber described the fee as "an almost fully realised corporate opportunity". The court held that removing that fee without compensation undermined the negotiating position of the departing partner and amounted to taking the law into their own hands. This was unlawful and so careless that those involved were personally open to serious reproach (para. 4.5). The damages were assessed at €200,000.
Why Section 2:9 DCC supplies the standard, and not a separate judgment
The concept of "corporate opportunity" is American in origin and has no statutory basis of its own in Dutch law. In the decisions analysed, the district courts therefore formulate the standard themselves — and strikingly uniformly. Both the Overijssel District Court in the Ecoliner case (ECLI:NL:RBOVE:2022:3175, para. 5.5) and the Midden-Nederland District Court in the Everizone case (ECLI:NL:RBMNE:2024:194, para. 4.2) describe a corporate opportunity as a possibility arising for the company to enter into a transaction or to undertake activities that fit within its business operations, and of which it is apparent that the company has a reasonable interest in it.
It then follows from Section 2:8 DCC and Section 2:9 DCC that the director must allow such an opportunity to fall to the company. If the director takes the opportunity for himself or for a third party without the company having released it, he performs his duties improperly. Liability arises only where there is a serious personal reproach — which, according to the Midden-Nederland District Court, is in principle present as soon as the director gives greater weight to his own interest than to that of the company. The Overijssel District Court anchors that same standard expressly in Section 2:9 DCC.
That the doctrine lives in the case law of the lower courts and not in a leading judgment is confirmed by the Arnhem-Leeuwarden Court of Appeal in the appeal in the Everizone case (ECLI:NL:GHARL:2026:4155). The court puts Section 2:9 DCC first (para. 4.5), formulates no independent corporate-opportunity test and upholds the judgment on the facts: it was not the directors but external parties who determined where the assignment went, and the company turned out not to be the holder of the rights to the disputed platform.
Why claims fail, and which detour does work
The strict link to the capacity of director defeats many claims. In the Ecoliner case, the inventor of an electric central-heating boiler worked on a competing product, but he was formally not a director of the aggrieved company — only indirectly, through his holding company. The complaint based on the corporate-opportunity doctrine could therefore not reach him (para. 5.6). Identification along the lines of the Kleuterschool Babbel judgment (Supreme Court, 6 April 1979) was of no avail either, because he had acted as a natural person and not as a director.
He was nevertheless held liable — through the open norm of tort. The court held that, as a de facto manager, he was under a special duty of care "even though Section 2:9 DCC does not apply" (para. 5.9), reinforced by a non-compete clause in the shareholders' agreement. In substance, the court reached the same result via Section 6:162 DCC.
The same detour helps where the case does not concern a classic director but a fellow shareholder. In the Dikon/Niqel case (ECLI:NL:GHAMS:2019:4066), the Amsterdam Court of Appeal held a controlling shareholder liable for breach of a specific standard of due care towards the minority shareholder (Section 2:8 DCC, paras. 3.7-3.8): a party who cuts across the joint venture by taking the opportunity directly for himself acts unlawfully. The same construction recurs in a recent interim judgment of the Midden-Nederland District Court (ECLI:NL:RBMNE:2025:4064, para. 3.6). Whether such an aggrieved shareholder may then claim its loss itself is a separate doctrine: that of reflective loss.
What does this mean for directors and shareholders?
Anyone collaborating within a company would be well advised to define the boundary between individual and joint opportunities in advance. A non-compete or ancillary-activities clause in the shareholders' agreement proved decisive for the duty of care in the Ecoliner case. Documentation is equally important: anyone who exploits an opportunity outside the company must be able to demonstrate that the company released that opportunity or was compensated for it. And for anyone considering a claim, it must be established that the party addressed was formally a director and that the company held the rights to what was lost — it is precisely on these two points that most claims fail.
Frequently asked questions
What is a corporate opportunity?
A business opportunity that fits within a company's business operations and of which it is apparent that the company has a reasonable interest in it. Think of a concrete assignment, transaction or collaboration. The director ought to let that opportunity fall to the company and may not exploit it for himself or a third party without release.
On which statutory provision is liability for a corporate opportunity based?
There is no specific provision. The district courts base liability on the directors' standard of Section 2:9 DCC, read together with Section 2:8 DCC, and require a serious personal reproach. If the party addressed is not a director, liability may follow from the tort provision of Section 6:162 DCC.
When is exploiting a business opportunity permitted?
Where the company has released the opportunity, where market-standard compensation is provided in return, or where the opportunity did not belong to the company. A loss-making or non-concrete opportunity likewise gives rise to no liability. Without the capacity of director or a property right of the company, a claim will usually fail.
Cited case law
Courts of Appeal: ECLI:NL:GHARL:2026:4155 · ECLI:NL:GHAMS:2019:4066
District Courts: ECLI:NL:RBROT:2021:12637 · ECLI:NL:RBOVE:2022:3175 · ECLI:NL:RBMNE:2024:194 · ECLI:NL:RBMNE:2025:4064