Introduction
Directors' liability in bankruptcy is one of the most heavily litigated subjects in Dutch corporate law. This page sets out twenty Supreme Court judgments that together mark out the framework: from the serious-blame test to the limits of mitigation, the circle of those who may be held liable and the position of the trustee. Each judgment is given with its citation, so that the reasoning itself can be consulted. They complement the case law of the lower courts on directors' liability, and the wider framework is set out on the page directors' liability.
The test: serious blame
The heart of Section 2:9 DCC is that a director is liable towards the company only where he can be seriously blamed, assessed against all the circumstances of the case. In Staleman/Van de Ven the Supreme Court listed those 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 or ought to have had (Supreme Court 10 January 1997, ECLI:NL:HR:1997:ZC2243).
Where a director acts contrary to provisions of the articles intended to protect the company, that is a weighty circumstance which in principle establishes liability (Supreme Court 29 November 2002, ECLI:NL:HR:2002:AE7011, Berghuizer Papierfabriek). That is a starting point, not an end point. If the director adduces facts from which it could follow that the breach nonetheless involves no serious blame, the court must address those facts expressly; failing that, the judgment is quashed (Supreme Court 3 February 2023, ECLI:NL:HR:2023:146, a Curaçao case in which the Supreme Court formulates the test under Section 2:9 DCC and its Antillean counterpart in identical terms).
Liability towards creditors
For liability in tort towards an individual creditor the framework of Ontvanger/Roelofsen applies, with the Beklamel standard for entering into obligations and the category of bringing about or permitting non-performance (Supreme Court 8 December 2006, ECLI:NL:HR:2006:AZ0758). That elevated threshold applies only where the director is addressed in that capacity; where he acts wrongfully in his own right, the ordinary standard suffices (Supreme Court 23 November 2012, ECLI:NL:HR:2012:BX5881, Spaanse Villa).
With selective payment the mere sequence of payments is not decisive. A director who has filed for the company's bankruptcy and then still pays one creditor in preference is not liable on that ground alone; what remains decisive is whether he can personally be seriously blamed, with a personal interest in the payment weighing heavily (Supreme Court 17 January 2020, ECLI:NL:HR:2020:73).
In group structures the blame must be substantiated per legal entity. A group may not be treated as a single structure: without adequate reasoning, a director of the parent cannot be blamed for the way a sub-subsidiary pays its own creditors where the claiming creditor holds no claim against that sub-subsidiary. The Supreme Court quashed on that point and referred the case (Supreme Court 12 June 2026, ECLI:NL:HR:2026:912).
The director behind the director
Section 2:11 DCC places the liability of a corporate director jointly and severally on everyone who was a director of it. The Supreme Court held that the provision applies to every statutory basis of directors' liability, including Section 6:162 DCC, and that 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 (Supreme Court 17 February 2017, ECLI:NL:HR:2017:275). The burden of proof therefore lies with the director, not with the creditor.
The evidentiary presumption of Section 2:248(2) DCC
If the records were not in order or the annual accounts were not filed on time, improper performance of duties is established and is presumed to have been an important cause of the bankruptcy (Section 2:248(2) DCC). To rebut it, the director need only make it plausible that other facts or circumstances were an important cause; if that succeeds, it falls to the trustee again (Supreme Court 30 November 2007, ECLI:NL:HR:2007:BA6773, Blue Tomato).
That other cause need not be external. Acts or omissions of one or more directors that do not in themselves amount to improper performance can also suffice to rebut the presumption. A court of appeal that refused the directors any reliance on the conduct of directors applied the wrong legal test (Supreme Court 9 July 2021, ECLI:NL:HR:2021:1099).
The Supreme Court polices the duty to give reasons in the trustee's favour as well. In a case where the court of appeal had assumed that the trustee had access to the complete records, the judgment was quashed because the court had passed over all the trustee's submissions on incomplete delivery on unintelligible grounds (Supreme Court 16 June 2023, ECLI:NL:HR:2023:925).
Mitigation: an exhaustive list
The court may reduce the amount for which the directors are liable, but only on the grounds in the first sentence of Section 2:248(4) DCC: the nature and seriousness of the improper performance, the other causes of the bankruptcy, and the manner in which the bankruptcy was wound up. Both the text and the parliamentary history show that this list is exhaustive (Supreme Court 13 May 2022, ECLI:NL:HR:2022:691).
What that means in practice became clear a year later. A court of appeal that had cut liability to ten per cent of the estate deficit on the basis of “all the circumstances”, including the modest remuneration of the directors, was reversed: that ground does not fall within subsection 4. At the same time the Supreme Court rejected the view that mitigation is possible only where the estate deficit exceeds the damage caused by the improper management (Supreme Court 21 April 2023, ECLI:NL:HR:2023:635).
Alongside this specific regime there is the general power to mitigate damages. In a Curaçao case concerning the directors of a foundation with a public task, the Supreme Court held that mitigation will as a rule be considered once the full damage has been established, but that the court may take another route for reasons of procedural economy where its finding implies that any higher award would lead to manifestly unacceptable consequences (Supreme Court 4 October 2024, ECLI:NL:HR:2024:1384, decided under Section 6:109 of the Curaçao Civil Code, the counterpart of Section 6:109 DCC).
The de facto director
Section 2:248(7) DCC treats as a director any person who determined or co-determined the company's policy as if a director. The Supreme Court clarified that the parliamentary history, which speaks of the formal board being set aside, does not mean that the de facto director must have managed to the exclusion of the board. It is enough that he appropriated at least part of the management authority; the word “co-determined” shows that the formal directors may have continued to perform their duties (Supreme Court 24 March 2023, ECLI:NL:HR:2023:445). That widens the circle of those who may be held liable in structures where a shareholder or adviser in fact takes the decisions.
Discharge and the duty to complain
Discharge does not extend to information that does not appear from the annual accounts or was not otherwise disclosed to the general meeting before it adopted them; that follows from Staleman/Van de Ven. Against the trustee it does not work at all, because Section 2:248(6) DCC provides that a discharge does not bar the claim.
Another defence that does not assist the director is the duty to complain. The Supreme Court held that a director cannot invoke Section 6:89 DCC to ward off liability under Section 2:9 DCC. That follows from the nature of the relationship between director and legal entity and from the fact that a company can hardly be reproached for a director's failure, while in office, to protest on its behalf to himself. The same applies to co-directors jointly and severally liable under Section 2:9(2) DCC, because collegial relations within the board can make timely protest difficult (Supreme Court 26 April 2024, ECLI:NL:HR:2024:681).
Tax debts and pension contributions
For arrears in contributions to an industry-wide pension fund, Section 23 of the Mandatory Occupational Pension Schemes Act 2000 sets out a scheme almost identical to that of Section 36 of the Collection of State Taxes Act 1990: everything turns on a timely notification of inability to pay. The Supreme Court held that a notification once given need not be repeated while the arrears continue, but that liability may then also rest on manifestly improper management after the notification. The three-year period is in that case calculated from the moment by which notification for the contribution concerned should at the latest have been given (Supreme Court 21 May 2021, ECLI:NL:HR:2021:754).
The Peeters/Gatzen claim
Besides the claim on behalf of the company, the trustee may act for the interests of the general body of creditors. That Peeters/Gatzen claim belongs to the creditors and does not fall into the estate; the proceeds do. In two judgments of the same date concerning the same bankruptcy, the Supreme Court upheld a court of appeal's reading of a claim formally framed for the benefit of the company as also directed at liability towards the general body of creditors. What mattered was the substance of what the trustee had put forward, and that this must also have been clear to the directors (Supreme Court 23 June 2023, ECLI:NL:HR:2023:967 and ECLI:NL:HR:2023:968). The characterisation of the claim thus depends on the content of the allegation, not on the wording of the prayer for relief.
Supervisory directors
The high threshold for personal liability applies to supervisory directors as well, and applies with particular force towards third parties. In the Fairstar case the court of appeal had held that two supervisory directors had acted wrongfully and with serious blame in their supervisory role, not only towards the company but also towards a third party. The Supreme Court quashed that finding: having regard to that high threshold, it was insufficiently reasoned (Supreme Court 30 January 2026, ECLI:NL:HR:2026:128). The judgment therefore tightens the reasoning required before a supervisory director is held liable by a third party.
More on the liability of supervisory directors
What does this mean in practice?
These twenty judgments do not produce a one-sided picture. The regime of Section 2:248 DCC is strict and the grounds for mitigation are exhaustive, the circle of those who may be held liable reaches beyond the formal board, and in the Peeters/Gatzen claim the trustee has an instrument that is assessed by its substance. At the same time the Supreme Court polices the duty to give reasons in both directions: liability of a group director or a supervisory director assumed too readily stands no better than a defence of the trustee passed over too readily. For directors the practical lessons remain the same: keep the records in order, file the annual accounts on time, notify inability to pay within the deadline, and in group structures keep the companies apart.
These judgments form part of the broader analysis of Supreme Court case law on corporate law. The case law of the lower courts is collected on the references page for Section 2:248 DCC.