The Court in Gelderland recently took the following into consideration when accessing the director’s liability in bankruptcy.
If a managing director has failed to comply with his obligation to keep accounting records as referred to in article 2:10 of the Dutch Civil Code or his obligation to publish the annual accounts in good time as referred to in article 2:394 of the Dutch Civil Code, there is an irrefutable presumption that the managing director in question has also otherwise improperly fulfilled his duties as managing director.
In order to be held liable, it must also be plausible that the manifestly improper performance of duties was a major cause of the bankruptcy. If the managing director has not fulfilled the obligation of article 2:10 of the Civil Code and/or the obligation of article 2:394 of the Civil Code, the rebuttable presumption of the latter applies by virtue of article 2:248 paragraph 2 of the Civil Code.
A reasonable interpretation of Article 2:248 paragraph 2 of the Civil Code implies that for the refutation of the presumption laid down therein it is sufficient for the director under appeal to make it plausible that facts and circumstances other than his improper performance of duties were an important cause of the bankruptcy. If the managing director establishes an external cause and the trustee accuses the managing director of having failed to prevent the occurrence of that cause, the managing director will (also) have to establish facts and circumstances and, if necessary, make it plausible that this failure does not constitute improper performance of duties. If he succeeds in doing so, it is up to the trustee to make it plausible on the basis of the first paragraph of Section 2:248 of the Dutch Civil Code that the apparent improper performance of duties was nevertheless also an important cause of the bankruptcy. (HR 30 November 2007, ECLI:NL:HR:2007:BA6773, Blue Tomato).
There is a question of manifestly improper performance of duties if no reasonable thinking director would have acted like this under the same circumstances. There must be serious misconduct. In order to determine whether the director is guilty of serious misconduct, all the circumstances of the case must be taken into account, both as a whole and in relation to each other.
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