Directors' liability after a restart: who bears the estate deficit?
Six hundred employees, four empty companies, and an estate deficit of €4.8 million
In August 2020 the fashion chain Miss Etam and its sister chains went bankrupt as part of the collapse of the FNG group. The Swiss company MFG acquired the assets and set up a restart structure (doorstart): the shops and the turnover were placed in the NXT companies, but the staff, more than 600 employees, were housed in four separate personnel companies (ME Team, NB Team, NXT SSC and NXT Log). Those companies had no bank account of their own, no income and no written arrangements on the fee for the labour made available. The turnover ran through NLS B.V. There were no invoices, no agreed rates and no current-account agreements on paper.
When the December 2020 coronavirus lockdown closed the shops and the NOW wage subsidy was refused, the personnel companies had no funds to pay the payroll taxes and social security contributions. All four went bankrupt. The trustee in bankruptcy claimed payment of the estate deficit on the grounds of manifestly improper management and tort.
The Amsterdam Court of Appeal found in favour of the trustee on every main point.
Duty to keep records breached, statutory presumption of manifestly improper management
The Court found that the records of the personnel companies did not meet the requirements of Section 2:10 DCC. There were no invoices for the hiring-in of staff, no recorded rates and no proper substantiation of the current-account relationship with NLS. As a result, the statutory presumption of Section 2:248 DCC applies: improper management is presumed to have been an important cause of the bankruptcy.
The directors were unable to rebut that presumption. The Court further held that, quite apart from the presumption, there was manifestly improper management: the funds required were in fact available at NLS in December 2020, but the directors failed to collect them in time to remit the payroll taxes and social security contributions. The COVID argument, the lockdown as an external cause, was rejected, because the bankruptcies were caused in part by that inaction.
All the corporate directors were held jointly and severally liable for the estate deficit under Section 2:11 DCC. That provision applies to foreign legal entities as well, the Swiss FLV Group Holding AG could not escape it.
For the natural person behind the structure, [appellant 1], the reasoning was different. Section 2:11 DCC does not apply to the natural person behind a corporate director, this follows from the Supreme Court's My Guide judgment. Nor was he a de facto director (feitelijk beleidsbepaler) within the meaning of Section 2:248(7) DCC, because he acted as a formal director of FLV Group and did not set the formal board aside. He was liable nonetheless: through Section 6:162 DCC.
The Court applied the Comsys judgment (Supreme Court 2009). The restart structure, assets and turnover outside the personnel companies, costs and debts inside them, created an increased risk for the creditors of those companies. As the parent company, MFG was under a special duty of care to prevent that risk from materialising. Through its overlapping management (personele unie) with NLS and the NXT companies, MFG had the actual power to collect the funds required from NLS. It did not do so.
As a direct director of MFG, [appellant 1] brought about this breach of the duty of care. A serious personal reproach can be made against him for it. He is liable in tort for the loss that MFG caused, the extent of which is to be determined in separate damages-assessment proceedings (schadestaatprocedure).
The advance payment of €2 million awarded earlier was upheld.
What does this judgment mean for the design of a restart structure?
The point of this judgment is not that restarts are risky. The point is that a specific structural choice, staff and costs in separate companies without income of their own, gives rise to a special duty of care. A party that chooses that structure must ensure that the personnel companies can actually access the funds needed to meet their obligations.
In concrete terms that means: written arrangements on rates and fees for the hiring-in of staff, proper record-keeping of current-account relationships, and, crucially, collecting the amounts due in good time. This applies to every company in the chain, including foreign entities. And it applies to the directors behind the companies personally, even where they are formally directors of the parent alone.
The line between a legitimate holding structure and an unlawful shifting of risk does not run along the question of whether a structure exists, but along the question of whether the directors involved have made good their duty of care towards the creditors of the subsidiaries. See also the overview of directors' liability in bankruptcy.
Frequently asked questions
Can a foreign corporate director be liable under Section 2:11 DCC?
Yes. The Amsterdam Court of Appeal confirmed that Section 2:11 DCC also applies to foreign legal entities that act as director of a Dutch company. The nationality or country of establishment of the corporate director is immaterial; what is decisive is whether it is a formal director of the Dutch company concerned.
What is the difference between liability under Section 2:11 DCC and under Section 6:162 DCC in this case?
Section 2:11 DCC leads to joint and several liability for the entire estate deficit on the ground of manifestly improper management. Section 6:162 DCC, the route for [appellant 1] as a natural person, leads to liability for the loss caused by the tort. That loss need not be equal to the estate deficit; its extent is determined in separate damages-assessment proceedings.
When is a parent company under a special duty of care towards the creditors of its subsidiary?
According to the Comsys judgment (Supreme Court 2009), that duty of care arises where the parent sets up a structure in which the subsidiary creates an increased risk for its creditors, and the parent has actual control to manage that risk. In this case MFG had that control through its overlapping management (personele unie) with NLS and the NXT companies, but it did not intervene.
Amsterdam Court of Appeal, 14 April 2026, ECLI:NL:GHAMS:2026:1031
Cited case law
Courts of Appeal: ECLI:NL:GHAMS:2026:1031