Liability of a director of a Dutch company

Published on 7 June 2021 · Last updated 26 October 2026

A director of a Dutch BV or NV is not liable for the company’s debts as such. Personal liability requires a specific legal ground. The main grounds are serious blame towards the company (Article 2:9 Dutch Civil Code, DCC), a wrongful act towards a creditor (Article 6:162 DCC), or, in bankruptcy, manifestly improper management that is plausibly an important cause of it (Article 2:248 DCC (BV) and 2:138 DCC (NV)).

Shareholders are in principle not personally liable either (Article 2:175(1) DCC for the BV, Article 2:64(1) DCC for the NV). Below we explain the tests the law and the Dutch Supreme Court (Hoge Raad) apply, how a director can avoid liability and when a shareholder can be liable after all.

What is directors’ liability under Dutch law?

Directors’ liability (bestuurdersaansprakelijkheid) means that a director has to pay from his or her own assets for loss suffered by the company or a third party, or for the shortfall in a bankruptcy. This page gives an overview for directors and shareholders of a Dutch company. For a more detailed explanation, see our page on directors’ liability under Dutch law.

The starting point is that only the company is liable if it fails to perform an obligation or commits a wrongful act. Only in special circumstances can a director also be liable alongside the company, and this requires that the director can personally be seriously blamed (persoonlijk ernstig verwijt). According to the Supreme Court, this high threshold is justified because towards the other party it is primarily the company that acts, and because directors should not let defensive considerations drive their decisions to an undesirable extent (HR 5 September 2014, ECLI:NL:HR:2014:2627, para. 4.2). Director liability is therefore not a “piercing of the corporate veil”: the director is liable for his or her own conduct, not simply for the company’s debts.

Under Article 2:9(1) DCC, every director owes the company a proper performance of his or her duties. Each director is also responsible for the general conduct of affairs (Article 2:9(2) DCC). Not every mistake leads to liability. For liability under Article 2:9 DCC, the Supreme Court requires that the director can be seriously blamed (ernstig verwijt), assessed in light of all circumstances of the case (HR 10 January 1997, ECLI:NL:HR:1997:ZC2243 (Staleman/Van de Ven), para. 3.3.1).

If the company is declared bankrupt, the bankruptcy trustee (curator) investigates the causes. The trustee can hold the directors liable towards the estate for the shortfall under Article 2:248 DCC (for the NV: Article 2:138 DCC), and can also bring a claim based on the director’s contract with the company or on Article 2:9 DCC (Article 2:248(8) DCC). The conditions are explained below.

What duties does a director of a Dutch company have?

Subject to restrictions in the articles of association, the board is responsible for managing the company. In performing their duties, the directors must be guided by the interests of the company and the business connected with it (Article 2:239(1) and (5) DCC for the BV; Article 2:129(1) and (5) DCC for the NV). Several specific duties matter for liability:

Keeping accounts. The board must keep records of the company’s financial position in such a way that its rights and obligations can be known at any time, and must keep those records for seven years (Article 2:10(1) and (3) DCC).
Publishing the annual accounts. The company must publish its annual accounts within eight days after their adoption, and in any case no later than twelve months after the end of the financial year (Article 2:394(1) and (3) DCC).
Consequences in bankruptcy. If the board did not comply with these duties, it has performed its duties improperly and it is presumed that this was an important cause of the bankruptcy. An insignificant omission is disregarded (Article 2:248(2) DCC).

The board is collectively responsible. Each director is liable for the whole in respect of mismanagement, unless he or she cannot be seriously blamed, also in view of the duties assigned to others, and has not been negligent in taking measures to avert the consequences of the mismanagement (Article 2:9(2) DCC). A division of tasks within the board therefore helps, but does not protect a director who saw problems and did nothing.

A director who has a direct or indirect personal interest that conflicts with the interests of the company may not take part in the deliberations and decision-making on that matter. If no board resolution can then be adopted, the supervisory board decides, or, if there is none, the general meeting, unless the articles of association provide otherwise (Article 2:239(6) DCC; for the NV Article 2:129(6) DCC). Read more about conflicts of interest in a Dutch company.

Distributions to shareholders of a BV require special care. A resolution to make a distribution has no effect until the board approves it. The board must refuse approval if it knows or should reasonably foresee that the company will not be able to continue paying its debts as they fall due after the distribution, and may not refuse it on other grounds (Article 2:216(2) DCC). If that happens, the directors who knew or should reasonably have foreseen it at the time of the distribution are jointly and severally liable towards the company for the shortfall caused by the distribution, with statutory interest. A director who proves that it is not his or her fault that the company made the distribution, and that he or she was not negligent in taking measures to avert its consequences, is not liable (Article 2:216(3) DCC).

When can a director be held liable?

Dutch law distinguishes between internal liability (interne bestuurdersaansprakelijkheid), where the company itself claims damages from its director, and external liability (externe bestuurdersaansprakelijkheid), where a creditor or another third party does so. Bankruptcy liability is a separate statutory regime.

The tests are strict. For internal and external liability, ordinary negligence is not enough: the director must be seriously blamed. For bankruptcy liability, the test is manifestly improper management by the board. The main grounds are:

Internal liability towards the company (Article 2:9 DCC). Whether a director can be seriously blamed depends on all circumstances of the case. These include the nature of the company’s activities, the risks that generally follow from them, the division of tasks within the board, any guidelines that apply to the board, the information the director had or should have had at the time of the decisions, and the insight and care that may be expected of a director who is equal to the task and performs it meticulously (Staleman/Van de Ven, para. 3.3.1). Acting in breach of provisions of the articles of association that aim to protect the company is a weighty circumstance that in principle establishes liability. If the director puts forward facts and circumstances that could show that this does not amount to serious blame, the court must expressly take them into account (HR 29 November 2002, ECLI:NL:HR:2002:AE7011, para. 3.4.5).
Collective responsibility. If several directors are involved, each of them is in principle liable for the whole, unless the conditions for exculpation in Article 2:9(2) DCC are met (see above). A director can only escape this collective liability by meeting both conditions.
External liability towards creditors (Article 6:162 DCC). The Supreme Court recognises two main cases. First, the director entered into an obligation on behalf of the company while he or she knew or should reasonably have understood that the company would not be able to perform it and would offer no recourse; if the claim remains unpaid and cannot be recovered, personal liability can then be assumed, unless the director puts forward circumstances showing that he or she cannot personally be seriously blamed (HR 5 September 2014, para. 4.3, the so-called Beklamel test). Second, the director caused or allowed the company not to perform its statutory or contractual obligations; the director can then be held liable if his or her conduct towards the creditor is so careless that he or she can personally be seriously blamed (HR 8 December 2006, ECLI:NL:HR:2006:AZ0758, para. 3.5).
Liability in bankruptcy (Article 2:248 DCC). If a BV is declared bankrupt, each director is jointly and severally liable towards the estate for the debts that cannot be paid from the remaining assets, if the board has manifestly improperly performed its duties (kennelijk onbehoorlijk bestuur) and it is plausible that this is an important cause of the bankruptcy (Article 2:248(1) DCC). Only improper performance in the three years before the bankruptcy counts (Article 2:248(6) DCC). The same rules apply to the NV (Article 2:138 DCC).

The duty of proper performance under Article 2:9 DCC is owed to the company. Towards third parties, the question is whether the director committed a wrongful act for which he or she can personally be seriously blamed. Separate statutory rules apply to certain unpaid taxes of the company, such as wage tax and VAT (Article 36 Collection of State Taxes Act 1990).

How can a director avoid personal liability?

The law gives a director who is collectively liable two routes to escape liability individually. Both require two conditions to be met at the same time.

Towards the company: the director cannot be seriously blamed, also in view of the duties assigned to others, and was not negligent in taking measures to avert the consequences of the mismanagement (Article 2:9(2) DCC).
In bankruptcy: the director proves that the improper performance by the board is not attributable to him or her and that he or she was not negligent in taking measures to avert its consequences (Article 2:248(3) DCC).

Outside these rules, there is no general defence that you “acted in the company’s interest”. What counts is whether, in all the circumstances, you acted with the insight and care that may be expected of a director who is equal to the task and performs it meticulously (Staleman/Van de Ven, para. 3.3.1). It therefore helps to document your decisions, the information you had at the time and the risks you weighed.

Not knowing about a problem is not enough in itself: you must also show that you were not negligent in taking measures. A director who disagrees with a decision should therefore record that objection and take action. In bankruptcy, the court can reduce the amount for which the directors are liable if it considers it excessive, in view of the nature and seriousness of the improper performance, the other causes of the bankruptcy and the way in which it was wound up. It can also reduce the amount for an individual director in view of the time he or she was in office during the period of improper performance (Article 2:248(4) DCC).

A discharge (décharge or kwijting) granted by the general meeting releases a director from liability towards the company for the management conducted. Its scope is limited: it does not extend to information that does not appear from the annual accounts and was not otherwise disclosed to the general meeting before it adopted them (Staleman/Van de Ven, para. 3.4.1). In bankruptcy, a discharge does not prevent the trustee’s claim under Article 2:248 DCC (Article 2:248(6) DCC).

Which Supreme Court judgments set the standard for directors’ liability?

The tests on this page come from a small number of judgments of the Dutch Supreme Court. You can read them in Dutch on rechtspraak.nl:

HR 10 January 1997, ECLI:NL:HR:1997:ZC2243 (Staleman/Van de Ven): internal liability under Article 2:9 DCC requires serious blame, assessed in light of all circumstances (para. 3.3.1); limited scope of a discharge (para. 3.4.1).
HR 29 November 2002, ECLI:NL:HR:2002:AE7011: acting in breach of provisions of the articles of association that aim to protect the company is a weighty circumstance that in principle establishes liability (para. 3.4.5).
HR 8 December 2006, ECLI:NL:HR:2006:AZ0758 (Ontvanger/Roelofsen): the two main cases of external liability towards a creditor (para. 3.5).
HR 5 September 2014, ECLI:NL:HR:2014:2627: the high threshold for liability alongside the company and the Beklamel test (paras. 4.2 and 4.3).

Late filing of the annual accounts does not automatically make a director liable. But if the board did not comply with Article 2:394 DCC, it has performed its duties improperly and it is presumed that this was an important cause of the bankruptcy, unless the omission is insignificant (Article 2:248(2) DCC). The director can then still try to rebut the presumption or rely on Article 2:248(3) DCC.

Are shareholders liable for the debts of a Dutch company?

As a rule, no. A shareholder of a BV or NV is not personally liable for what is done in the name of the company, and does not have to contribute to the company’s losses beyond the amount that must be paid up on his or her shares (Article 2:175(1) DCC for the BV, Article 2:64(1) DCC for the NV). The articles of association of a BV can attach obligations to shareholdership, but such an obligation cannot be imposed on a shareholder against his or her will (Article 2:192(1) DCC).

A shareholder can be liable on a specific legal ground. Examples:

A shareholder of a BV who received a distribution while he or she knew or should reasonably have foreseen that the company would not be able to continue paying its debts as they fall due afterwards must compensate the shortfall caused by the distribution, up to the amount or value of the distribution received, with statutory interest (Article 2:216(3) DCC).
A person who determined or co-determined the policy of a BV as if he or she were a director is treated as a director for bankruptcy liability (Article 2:248(7) DCC) and for liability for distributions (Article 2:216(4) DCC). This can apply to a shareholder who in fact runs the company.
Like anyone else, a shareholder can be liable for his or her own wrongful act (Article 6:162 DCC).

For disputes between shareholders, see our page on shareholder disputes in the Netherlands.

Frequently asked questions about the liability of a director of a Dutch company

Is a director personally liable for the debts of a Dutch BV?

Not as such. The company is liable for its own debts. A director is only personally liable if a specific legal ground applies. The main grounds are serious blame towards the company (Article 2:9 DCC), a wrongful act towards a creditor for which the director can personally be seriously blamed (Article 6:162 DCC), and manifestly improper management that is plausibly an important cause of the bankruptcy (Article 2:248(1) DCC). Separate rules apply to distributions by a BV (Article 2:216(3) DCC) and to certain unpaid taxes of the company (Article 36 Collection of State Taxes Act 1990).

What is internal directors’ liability?

Internal liability is the liability of a director towards the company itself. The claim is brought by the company or, in bankruptcy, by the trustee (Article 2:248(8) DCC). The basis is Article 2:9 DCC, and the director must be seriously blamed in light of all circumstances (HR 10 January 1997, ECLI:NL:HR:1997:ZC2243, para. 3.3.1).

Are shareholders liable in the Netherlands?

In principle not. A shareholder of a BV or NV is not personally liable for what is done in the name of the company (Article 2:175(1) and 2:64(1) DCC). Exceptions exist, such as receiving a distribution from a BV while knowing or having to foresee that the company could no longer pay its debts as they fall due (Article 2:216(3) DCC), or acting as a de facto director (Article 2:248(7) DCC).

What is a discharge of a director in the Netherlands?

A discharge (décharge) is a release from liability towards the company for the management conducted, usually granted by the general meeting. It does not cover information that does not appear from the annual accounts and was not otherwise disclosed to the general meeting (Staleman/Van de Ven, para. 3.4.1), and it does not prevent a claim by the trustee in bankruptcy under Article 2:248 DCC (Article 2:248(6) DCC).

Does resigning as a director end your liability?

Not for the past. Resigning ends your future responsibilities, but not your liability for what happened while you were in office. In bankruptcy, the claim can be based on improper performance in the three years before the bankruptcy (Article 2:248(6) DCC). The court can reduce the amount for an individual director in view of the time he or she was in office during the period of improper performance (Article 2:248(4) DCC).

What can a director of a Dutch company do to limit liability?

Keep proper accounts and publish the annual accounts on time (Articles 2:10 and 2:394 DCC).
Before the company enters into a significant obligation, check whether it will be able to perform it and pay.
Before approving a distribution, check whether the company will be able to continue paying its debts as they fall due (Article 2:216(2) DCC).
Do not take part in decisions in which you have a conflicting personal interest (Article 2:239(6) DCC).
Record objections and the measures you take if you disagree with the board.

If you are held liable as a director or shareholder, first check the legal basis of the claim, because the tests differ. For an overview of the rules for Dutch companies, see our page on corporate law in the Netherlands.