Introduction
Liability for the deficit in a bankruptcy does not only affect the director registered in the commercial register. Article 2:248(7) of the Dutch Civil Code (DCC) equates with a director any person who has determined or co-determined the policy of the company as if he were a director: the de facto director (feitelijk beleidsbepaler). This page covers that doctrine; the other bases are set out on the page directors' liability. Whoever is qualified as such can be held jointly and severally liable for the entire bankruptcy deficit, without ever having been a formal director.
The de facto director question and defence are dominant in practice. In the analysed decisions on Article 2:248 DCC, subsection 7 arises in almost two hundred cases, by far the most frequent procedural issue within this doctrine. The standard is set out below, followed by an assessment per role: can a shareholder, an adviser, a financier, a spouse, an employee, a former director or a foreign director be qualified as a de facto director?
The statutory standard: determining policy 'as if he were a director'
The core of Article 2:248(7) DCC is that someone determined or co-determined policy in a manner equivalent to directing the company. Whether that is the case depends on the circumstances. Two elements recur consistently in the case law: there must be direct involvement with the management, and the person must have actually exercised the management task. That second requirement gives meaning to the words "as if he were a director" (Court of Appeal Amsterdam 27 June 2017, ECLI:NL:GHAMS:2017:2551).
Decisive is therefore actual conduct, not the presentation to the outside world and not a formal title. Since 2023 the case law has formulated the lower limit sharply: what matters is whether the person actually performed typical management acts, and more specifically exercised the management task within the meaning of Article 2:239 DCC. Having a strong or even decisive influence on the policy of the board is insufficient (among others District Court Midden-Nederland 18 December 2024, ECLI:NL:RBMNE:2024:6907, and 4 May 2022, ECLI:NL:RBMNE:2022:2901). A managerial position, a power of attorney or the absence thereof are in themselves not decisive.
Is a complete setting aside of the board required?
For a long time it was inferred from the legislative history that an actual setting aside of the formal board was required: the policymaker would have had to act instead of and to the exclusion of the board. The Supreme Court rejected that reading (Supreme Court 24 March 2023, ECLI:NL:HR:2023:445).
The phrase about setting aside does not mean that the de facto director must have managed to the exclusion of the formal board. It expresses that the policymaker must have appropriated at least part of the management authority, and in that way determined or co-determined policy. From the word "co" in the provision it follows that this can also be the case where one or more formal directors continued to perform their tasks. Partial appropriation of the management authority therefore suffices; the threshold is lower than previously assumed. The lower courts have adopted this standard, for example the Court of Appeal Arnhem-Leeuwarden 3 October 2023 (ECLI:NL:GHARL:2023:8302): such policy determination can also occur while formal directors continued to perform their tasks, and the use of a power of attorney does not preclude the application of subsection 7.
This lowering of the threshold affects how older decisions are read. Rulings from before 24 March 2023 that still require a complete setting aside of the formal board must be read with the Supreme Court's correction in mind.
Moreover, the standard is not limited to the private company (BV). For the public company (NV) the identically worded provision of Article 2:138(7) DCC applies, and for a bankrupt foundation or association the concept operates through Article 2:300a and Article 2:50a DCC respectively. The Supreme Court still applied the concept of de facto director in that context in its judgment of 12 December 2025 (ECLI:NL:HR:2025:1899), although that case was decided on a procedural point.
The acquiescence situation: imposing one's will while the board lets it happen
Setting aside does not require the formal board to be driven out. Equated with it is the situation in which the co-policymaker imposes his will on the board and the formal board acquiesces (ECLI:NL:GHAMS:2017:2551). In that case an employee maintained almost all contacts with the tax authorities, creditors, staff and financiers, concluded payment arrangements, presented himself externally as policymaker and pushed through major decisions, while the formal director confined himself to collecting the post and signing documents. That the person was formally only an employee did not stand in the way of liability.
Who can be a de facto director? The roles in the case law
The analysed decisions can be ordered along a single dividing line. Some roles qualify only once the person actually starts exercising the management task; other roles remain outside subsection 7 by their nature, unless the person crosses that same threshold. In both cases the test is identical; only the starting position differs.
Employee or manager
An employee or mandated manager becomes a de facto director once he does not confine himself to his function within the limits set by the board, but appropriates typical management matters. In the case mentioned above (District Court Noord-Holland 25 March 2015, ECLI:NL:RBNHO:2015:2480, upheld by ECLI:NL:GHAMS:2017:2551) it sufficed that the person belonged to the decision-making management team, managed the financial records and presented himself to the tax authorities as policymaker. Policy determination in a single sub-area can also be sufficient. The District Court The Hague reached the same outcome (10 May 2023, ECLI:NL:RBDHA:2023:7234) for someone who presented himself internally and externally as management and did more than merely give advice.
The limit lies in the question whether the person decided on an equal footing with the board or could impose his will on it. A branch manager who does the purchasing, directs staff and concludes payment arrangements but submits these to the board for approval remains below the threshold, even if the outside world speaks of "his business" (District Court Amsterdam 14 June 2017, ECLI:NL:RBAMS:2017:3975). The same applies to executive and supporting tasks that do not touch the collective management task (District Court Midden-Nederland 7 March 2019, ECLI:NL:RBMNE:2019:948).
Spouse, partner or family member
The family or marital tie plays no role in itself. Decisive is solely whether the partner or family member actually exercised the management task. In the case law the kinship only explains why one person could run the company while the other held the formal title. Where the spouse actually ran the business, liability followed: the Court of Appeal Arnhem-Leeuwarden qualified as co-policymaker the husband who took over the pharmacy after the pharmacist-director's stroke, consulting the accountant, bank and suppliers and deciding on staff and opening (ECLI:NL:GHARL:2023:8302). The District Court Overijssel ruled similarly on the husband behind a formal straw-woman director (23 February 2022, ECLI:NL:RBOVE:2022:540). Where actual exercise is lacking, however, no degree of closeness helps: a person hired as CEO who took part in meetings and drew up a rescue plan on instructions, but to whom the board gave instructions, was not qualified (ECLI:NL:RBMNE:2022:2901).
Former director or shadow director
Resigning on paper does not end liability. Decisive is whether the person continued to exercise the management task after his formal departure. Whoever continues to run the board and retains all-determining control falls under subsection 7 (District Court Rotterdam 17 February 2021, ECLI:NL:RBROT:2021:1907). Whoever actually withdraws, by contrast, is no longer a de facto director: two resigned and deregistered directors escaped Article 2:248 DCC because it had not appeared that they subsequently still acted as directors (District Court Overijssel 30 August 2023, ECLI:NL:RBOVE:2023:3475). The lower limit is strict: preparing meetings, taking minutes, making payments and keeping the records are staff activities that in themselves do not constitute de facto directorship (Court of Appeal Arnhem-Leeuwarden 30 March 2021, ECLI:NL:GHARL:2021:3016). Anyone seeking to hold a former director liable through subsection 7 must also reckon with the three-year period of Article 2:248(6) DCC: only improper performance of duties in the three years before the bankruptcy counts.
Adviser, accountant or bookkeeper
An adviser, accountant or bookkeeper is qualified as a de facto director only very rarely. Merely advising, administering or auditing, and even a decisive influence, is insufficient. A bookkeeper who presented himself externally as financial director but did not actually determine policy fell outside subsection 7 (ECLI:NL:RBMNE:2024:6907). Against a failing accountant the route runs not through subsection 7 but through professional liability in tort, and the board cannot shift its own responsibility onto the accountant (District Court Noord-Nederland 19 July 2017, ECLI:NL:RBNNE:2017:2788). Only the person who leaves advising behind and actually starts running the company is qualified; he then ceases to be an adviser and becomes a shadow director (compare District Court Zeeland-West-Brabant 24 April 2024, ECLI:NL:RBZWB:2024:2728).
Financier or lender
A financier remains a creditor as long as his involvement stays within the register of a credit provider: setting conditions, earmarking funds, stipulating security, exercising supervision and threatening to suspend the financing. These are exercises of creditor rights, not management acts. Giving instructions as a credit provider and contracting party is generally not policy determination as if one were a director; if the board acts on those instructions, it is the board that acts and not the financier (Court of Appeal Amsterdam 26 January 2021, ECLI:NL:GHAMS:2021:193). Even a financier who keeps full control of the money tap and turns it off remains an external counterparty (Court of Appeal The Hague 4 March 2025, ECLI:NL:GHDHA:2025:398). The threshold is crossed only once the lender himself takes part in the board's deliberation and decision-making (compare District Court Amsterdam 5 February 2025, ECLI:NL:RBAMS:2025:621, in which not the financiers but the operational initiator was qualified as policymaker).
(Majority) shareholder
Shareholding in itself, even of a sole or majority shareholder, makes no one a de facto director. Exercising shareholder rights, financing or influence is insufficient; only when the shareholder actually performs management acts is he qualified, and then usually as co-policymaker alongside a functioning board. An indirect shareholder who was also a major financier was not held liable for his role as shareholder and financier, but solely for conduct he performed as director of another company (ECLI:NL:RBGEL:2025:1350). Where a shareholder was qualified, it concerned cases in which a statutory approval power was actually exercised (District Court Limburg 28 April 2021, ECLI:NL:RBLIM:2021:3797); that this decision dates from before the judgment of 24 March 2023 and rests on a thin basis warrants attention when relying on it.
Parent, holding or group company
For the parent or holding company the formal position is decisive. If it is itself the statutory director of the bankrupt subsidiary, it is not a de facto director but simply a director, and the liability of its own directors runs through the breakthrough of Article 2:11 DCC, not through subsection 7 (District Court Overijssel 16 February 2022, ECLI:NL:RBOVE:2022:541). Subsection 7 is reserved for the person who stands outside the formal management chain but determines policy in fact. Normal group or shareholder influence does not suffice for that.
The foreign or indirect policymaker and the relationship to Article 2:11 DCC
In the case of an indirect director whose intermediate corporate director is Dutch, the breakthrough runs through the regular path of Article 2:11 DCC. Subsection 7 comes into view as an independent, alternative basis as soon as that path runs into complications. For a foreign corporate director, Article 2:11 DCC does not, according to the Supreme Court (21 June 2013, ECLI:NL:HR:2013:CA3958, My Guide), automatically reach its director, because his liability is governed by the law of incorporation of that company. The de facto director route avoids that complication: it attaches directly to whoever in fact determined the policy of the Dutch bankrupt company.
Thus an indirect director resident in Switzerland of a Swiss corporate director was held liable as a de facto director, with the court expressly leaving open the question of Article 2:11 DCC and the applicable law (District Court Amsterdam 24 July 2024, ECLI:NL:RBAMS:2024:4662). The District Court Noord-Holland ruled similarly on an indirect director behind English companies that served merely as a vehicle (8 September 2021, ECLI:NL:RBNHO:2021:7912). The defence that one is already an indirect formal director and therefore cannot be a de facto director is rejected in these decisions: the two capacities do not exclude one another. The lower limit continues to apply here too; a family member sued as a de facto director who did not exercise the management task himself escaped the qualification (District Court Midden-Nederland 28 September 2022, ECLI:NL:RBMNE:2022:3858).
The boundary with other bases of liability
The standard of subsection 7 belongs to the special bankruptcy liability and does not carry over to every basis. In an action in tort, such as the Peeters/Gatzen claim brought by the trustee on behalf of the joint creditors, the standard of the de facto director does not apply (District Court Gelderland 12 February 2025, ECLI:NL:RBGEL:2025:1350). Article 6:162 DCC is not limited to a particular class of persons; the actual position does play a role, but not through the equation of subsection 7. For the trustee this means that the qualification can sometimes be circumvented through Article 6:162 DCC, provided the wrongful conduct is established independently.
Conversely, the figure of the de facto director is a bankruptcy-specific extension. The internal director's liability of Article 2:9 DCC applies only to statutory directors and knows no equation of co-policymakers (among others District Court Noord-Nederland 15 April 2020, ECLI:NL:RBNNE:2020:1646). Where the liability of financiers or persons with an interest behind the scenes is at issue, practice often uses not subsection 7 but the group liability of Article 6:166 DCC or tort.
Burden of proof and procedural position
The burden of proving that a particular person determined policy as if he were a director rests in principle on the trustee (ECLI:NL:GHAMS:2017:2551). That requires concrete substantiation on the facts: who maintained the contacts with third parties, who took the decisions on financing, staff and creditors, and to what extent the formal board stepped back. Statements from the tax authorities, financiers, employees and the person himself often prove decisive in the case law. Courts warn in this connection that subsection 7 should not be assumed too readily, because otherwise the scope of this exceptional provision becomes too wide. For the person sued the defence is the mirror image: making it plausible that the involvement did not exceed the level of execution, advice, financing or a mandated function.
What decides the outcome
Since ECLI:NL:HR:2023:445 the threshold for liability as a de facto director has been lowered: partial appropriation of the management authority suffices and the formal board need not have been fully switched off. The boundary lies in the requirement that the management task must actually have been exercised. That requirement explains the line per role: an employee, spouse or former director falls under it once he actually starts running the company, while an adviser, financier, shareholder or parent company remains outside it by nature, unless they cross that same threshold. For the trustee, subsection 7 is a powerful basis alongside the breakthrough of Article 2:11 DCC and tort; for the non-director sued, the factual delineation of his role is the decisive defence.