When a creditor goes unpaid
A creditor whose claim is not paid and who finds no recourse may hold the director personally liable. The threshold is high: personal serious blame is required. Within a corporate group a second requirement applies. The blame must be substantiated at the level of the legal entity of which the claimant is itself a creditor, not across the structure as a whole.
The high threshold: personal serious blame
A director acts for the account of the company and is not readily held liable in private. Personal liability in tort (Section 6:162 DCC) therefore requires a high threshold: the director must, having regard also to the duty of proper performance of his task (Section 2:9 DCC), be capable of being personally blamed in a serious way. The Supreme Court restated that threshold expressly in June 2026.
The threshold protects the flow of commerce rather than the director. If every shortcoming of a company could give rise to personal blame, nobody would agree to direct a business in difficulty.
Two routes to liability
Since the Supreme Court judgment of 8 December 2006 (Ontvanger/Roelofsen) two situations are distinguished in which a director may act unlawfully towards a creditor. The same standard of personal serious blame applies to both.
The first route concerns the director who enters into obligations on behalf of the company while knowing, or having reason to understand, that it will be unable to perform and will offer no recourse. That is the Beklamel standard, the most frequently used basis in the rulings analysed. How strictly it applies is discussed elsewhere in the case of a beach club whose construction costs doubled.
The second route is further removed from day-to-day practice but is often a creditor's only remaining avenue. It concerns the director who brings about or permits that the company fails to perform. The reproach is then not the incurring of the debt but what happens to the assets afterwards.
Bringing about or permitting: where is the line?
On that second route everything turns on foreseeability. Personal serious blame may arise where the director knew, or should reasonably have understood, that his conduct would result in the company failing to perform and offering no recourse.
In his opinion preceding the June 2026 judgment, Advocate General Valk observes that courts vary on that rule of thumb. The foreseeability requirement is sometimes relaxed to having to take serious account of the possibility of loss, which demands more than mere foreseeability but less than certainty. Such variation may, according to the opinion, be justified where the director's course of conduct was prompted in part by a personal interest, for instance by withdrawing funds from the company in favour of himself or a related party, leaving the external creditor empty-handed.
That is the heart of the case discussed below. It does not concern a director who entered into an irresponsible obligation, but a director involved in payments from which he benefited through a company of his own.
The indirect director in a group: Bank Degroof/FPA
Bank Degroof Petercam granted the investment institution FPA a EUR 2 million credit in 2007. FPA became insolvent and did not repay; the claim rose to over EUR 2.7 million. When the bank was left as the only major creditor, it held the directors personally liable: Energieweg (a director of FPA) and the man who was at the helm as indirect director. The district court dismissed the claim; the Amsterdam Court of Appeal held in 2024 that the director had acted wrongfully and was jointly and severally liable. The Supreme Court made short work of that on 12 June 2026.
The background is a tangle of companies. A grand-subsidiary of FPA, Weaver, had a recourse claim against a law firm — a claim to recover loss suffered from the party responsible for it —. Those proceedings ended in a EUR 4.3 million settlement, divided between the creditor Alstonville (EUR 2.8 million) and the director's litigation funder, Eikofin (EUR 1.5 million). The bank was not informed and remained unpaid. From six circumstances the court of appeal inferred that the director was personally seriously to blame, including limited payment autonomy after the decision to wind down, that is, less freedom to decide which creditor is paid when and the absence of any provision for the bank. In doing so the court applied precisely the relaxation the opinion describes: it weighed that the director himself benefited through Eikofin from the distribution, and was therefore satisfied with a finding that he should have taken serious account of loss to the bank.
The Supreme Court holds at the outset that personal liability of directors in tort is in general subject to a high threshold, a line going back to settled case law (ECLI:NL:HR:2014:2628, ECLI:NL:HR:2008:BC4959). It then points to principles the court of appeal ought to have respected: it had not established that Weaver too was obliged to repay the bank, the bank was not a creditor of Weaver, and it had not established that Weaver paid Alstonville and Eikofin more than was due to them as creditors.
Against that background the court of appeal's finding is, according to the Supreme Court, incomprehensible without further reasoning. What matters is what the Supreme Court does and does not decide: it does not rule that the director bears no blame, but that the court of appeal insufficiently reasoned its liability finding. The thread running through that criticism is that the court of appeal drew too little distinction between FPA and its grand-subsidiary Weaver by speaking of a single "FPA structure". Liability may not rest on treating two separate legal entities as one; a party alleging personal serious blame must substantiate it per legal entity. Whether a personal interest justifies that relaxation is a question the Supreme Court does not reach: without the missing findings about Weaver, even a relaxed foreseeability requirement does not support the conclusion. The Supreme Court quashes the judgment and remits the case to the Hague Court of Appeal.
Does group liability (Section 6:166 DCC) offer a way out?
A creditor who runs into this boundary sometimes turns to Section 6:166 DCC: liability of participants in a group that enables unlawful conduct. That route does not lower the threshold. The Arnhem-Leeuwarden Court of Appeal confirmed in 2026 that the heightened standard of personal serious blame applies within a group as well. The question merely shifts to who participated in the conduct: a person who actively pursues unlawful policy to the detriment of investors finds no cover in the group structure.
What does this mean for directors and creditors?
For creditors the lesson is sharp. A party wishing to hold a director personally liable must substantiate its blame at the level of the legal entity of which it is itself a creditor. The assets of a subsidiary or grand-subsidiary against which no claim exists cannot be drawn towards the creditor via the detour of a director's blame directed at "the structure". The Beklamel standard offered the bank no relief here either, because it was not established that the director knew, when entering into the credit, that the company would be unable to repay. A party invoking Section 6:166 DCC against a director within a group must plead more than mere participation in a group that acted wrongfully: the conduct must be attributable to that person personally and seriously.
A director who himself benefits, through a company of his own, from payments that leave other creditors unpaid should expect the court to apply the foreseeability requirement less strictly. That does not lower the threshold, but it is reached sooner. For directors the standard cuts both ways. Payment autonomy remains the starting point and is not readily overridden without the court establishing concrete payments that conflict with it; an abstract reference to a wind-down does not suffice. At the same time, the collective group structure offers no shelter to a person who actively took part in policy decisions that harm others. The outcome after remittal is therefore not yet settled; what is settled is the standard against which it is measured: per legal entity, and with a personal serious blame that is concretely substantiated.
Frequently asked questions
What is personal serious blame?
It is the standard for the personal liability of a director in tort (Section 6:162 DCC). A high threshold applies: not every unfortunate or adverse decision gives rise to liability. What is required is that the director, having regard also to the duty to perform their task properly, can be personally blamed in a serious way.
Can a creditor of the parent company recover against a subsidiary?
In principle, no. Parent, subsidiary and grand-subsidiary are separate legal entities, each with its own assets and creditors. A creditor of the parent has no claim to the assets of a subsidiary of which it is not a creditor, and directors' liability offers no detour around that separation: the blame must be substantiated per legal entity.
What must a creditor assert when the company does not pay?
That the director brought about or permitted that this particular company failed to perform and offered no recourse, and that he knew or should reasonably have understood as much. Assertions about the assets of a sister or sub-subsidiary in which the creditor holds no claim will not carry that reproach.
Cited case law
Supreme Court: ECLI:NL:HR:2026:912 · ECLI:NL:HR:2026:128 · ECLI:NL:HR:2014:2628 · ECLI:NL:HR:2008:BC4959 · ECLI:NL:HR:2006:AZ0758 · ECLI:NL:HR:2016:663 · ECLI:NL:HR:2019:1489
Advocate-General: ECLI:NL:PHR:2025:1304
Courts of Appeal: ECLI:NL:GHARL:2026:3234 · ECLI:NL:GHARL:2026:3233 · ECLI:NL:GHAMS:2024:2819 · ECLI:NL:GHDHA:2024:160
District Courts: ECLI:NL:RBAMS:2022:7419