Quasi-director may be held liable too

 

The members of the board of managing directors are personally and severally liable towards the limited liability company (NV or BV) for any loss caused by the improper performance of duties.

Each member of the board who proves that he cannot be blamed for such improper performance and that the activities concerned fall outside the scope of activities addressed to him, and that he has not been negligent in taking steps to avert the related consequences, is not liable (Section 2:14 subsection 4 Curaçao Civil Code; “CCC”). Therefore, a division of tasks among such members can influence the liability.

 

A claim based on Section 2:14 CCC can be instituted by the NV or BV itself only, or, in case the NV or BV has been declared bankrupt, by a bankruptcy trustee (in Dutch: ‘curator’). When the claim is instituted by the bankruptcy trustee, a member of the board of managing directors may not claim that he was granted any form of discharge from liability by the NV or BV (Section 2:14 subsection 5 CCC).

 

Based on established case law, the obligation of the members of the board of managing directors of an NV or BV to properly carry out their duties, is interpreted in such a manner that liability based on this obligation requires serious blame to be attributed to such members. Therefore, a director of an NV or BV can only be held liable by the NV or BV if serious negligence in the performance of his duties is attributable to him. See the case of Ontvanger v. Roelofsen, Hoge Raad (Dutch Supreme Court) 8 December 2006, JOR 2007, 38. A finding of serious negligence on the part of a director depends on the circumstances of the case. Actions that conflict with specific statutory provisions or the articles of association may constitute improper management rising to a level of serious negligence.

 

A shareholder, supervisory director or even a third party (e.g. a consultant), who is not part of the management board of an NV or BV, yet for a specific period or under certain circumstances, whether or not pursuant to a provision either in the articles of association or in Book 2 of the Curaçao Civil Code, determines or co-determines the policy of the NV or BV as if he were a managing director, shall with regard to such conduct, insofar as his obligations as regards the corporation and third parties are concerned, be considered a managing director (Section 2:138 CCC).

 

Such a policy-maker (“de facto managing director” or “quasi managing director“) also falls within the scope of the provisions on directors’ liability (Sections 2:14 and 2:16 subsection 9 CCC) and may be held liable on the same grounds as a managing director.

 

Karel Frielink

Attorney (Lawyer) / Partner

 

30 August 2013

 

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