Director liability towards creditors: interim dividends and the “personal serious reproach” threshold

The judgments

The question

A Dutch BV or NV shields its shareholders and directors from the company’s debts. Creditors who end up unpaid nevertheless try to reach the people behind the company, and Dutch law gives them several routes: a bankruptcy trustee (curator) can claim the deficit in the estate from the directors for manifestly improper management; a distribution made without the required financial room can be void and reclaimed; payments that prejudice creditors can be avoided under the Bankruptcy Act (Faillissementswet, “Fw”); and any individual creditor can sue a director or shareholder in tort under Article 6:162 of the Civil Code. Each route has its own threshold, and the threshold for personal liability in tort is deliberately high.

The two Supreme Court judgments reviewed here sit at either end of that landscape. The first, of 23 September 2016, concerns a family company that paid out all its free reserves as an interim dividend on the day its shares were sold, and went bankrupt four months later. The second, of 12 June 2026, concerns a Belgian bank that remained the only creditor of a Dutch investment company in wind-down, and sued the company’s indirect director personally. In both cases a court of appeal had decided against the claimant or the director, and in both the Supreme Court quashed the judgment and referred the case to another court of appeal. Read together, they show what founders, group CFOs and foreign shareholders of Dutch entities need to document when money leaves a company that has creditors.

The legal framework

Distributions under Article 2:216, before and after 1 October 2012

The 2016 judgment applies Article 2:216 of the Civil Code as it read on 29 February 2008, before the Act simplifying and making BV law more flexible (Wet vereenvoudiging en flexibilisering BV-recht, Stb. 2012, 299) entered into force on 1 October 2012 (Supreme Court, para. 3.5.3). The Advocate General set out the wording that applied between 1 October 2004 and 1 October 2012 (AG Timmerman, para. 2.11). In our translation:

• paragraph 2: the company may make distributions to the shareholders and others entitled to the distributable profit only in so far as its equity exceeds the paid-up and called-up part of the capital plus the reserves that must be maintained by law or under the articles of association;
• paragraph 3: profit is distributed after the adoption of the annual accounts showing that the distribution is permitted;
• paragraph 4: the company may make interim distributions only if the articles of association permit this and the requirement of paragraph 2 is met.

The current text of Article 2:216 works differently. Under paragraph 1 the general meeting determines distributions “in so far as the equity exceeds the reserves that must be maintained by law or under the articles of association”; the reference to paid-up and called-up capital has gone. Paragraph 2 adds that a resolution to make a distribution has no effect until the management board approves it, and that the board may refuse approval only if it knows or should reasonably foresee that after the distribution the company will be unable to continue paying its debts as they fall due. Paragraph 3 makes directors who knew or should reasonably have foreseen this jointly and severally liable to the company for the shortfall caused by the distribution, and makes a recipient who knew or should reasonably have foreseen it liable up to the amount received. The current text has no separate paragraph on interim distributions. What follows about the 2016 judgment therefore concerns the old wording; we link to the current text only for orientation.

For the NV, our current text of Article 2:105 still follows the model that the old BV provision used: a capital-plus-reserves test (paragraph 2), distribution of profit after adoption of the accounts (paragraph 3), and interim distributions only if the articles permit them and the test is met “as shown by an interim statement of assets and liabilities” dated no earlier than the first day of the third month before the month in which the resolution is announced, signed by the directors and filed with the trade register within eight days (paragraph 4). Under paragraph 8 a shareholder who knew or ought to have known that a distribution was not permitted must repay it. The Advocate General in the 2016 case pointed to the NV rules as closely related to the old BV regime (AG Timmerman, footnote to para. 2.12).

Liability towards the bankrupt estate: Article 2:248

Under Article 2:248(1), if the company goes bankrupt, each director is jointly and severally liable to the estate for the debts that cannot be paid from the other assets “if the management board has manifestly improperly performed its duties and it is plausible that this is an important cause of the bankruptcy”. The court may reduce the amount (paragraph 4), and a person who determined the company’s policy as if he were a director is treated as one (paragraph 7). The courts in the 2016 case paraphrased paragraph 1 in the terms of our current text (Court of Appeal Arnhem-Leeuwarden, para. 4.4). The NV equivalent is Article 2:138.

Liability towards an individual creditor: Article 6:162 and Article 2:9

Outside bankruptcy, an unpaid creditor has no statutory claim against the director and must rely on tort, Article 6:162 of the Civil Code. The Court of Appeal Amsterdam and Advocate General Valk restated the test from HR 8 December 2006, ECLI:NL:HR:2006:AZ0758, which they call Ontvanger/Roelofsen (Court of Appeal Amsterdam, paras 5.7–5.9; AG Valk, para. 3.3). A director may be liable alongside the company if he (i) acted on the company’s behalf, or (ii) brought about or permitted the company’s failure to perform its obligations; in both cases only where, “also having regard to his duty of proper performance of duties as referred to in Article 2:9”, a sufficiently serious reproach can be made against him personally. Our text of Article 2:9(1) provides that each director owes the legal person the proper performance of his duties. For type (i) the courts apply the test the lower courts call the Beklamel norm: the director knew or should reasonably have understood, when entering into the obligation, that the company would not perform and would offer no recourse. For type (ii), serious reproach can in any event exist if the director knew or should reasonably have understood that the conduct he brought about or permitted would lead to non-performance without recourse; “other circumstances” may also found it.

Indirect directors: Article 2:11

Where a legal person is a director, Article 2:11 provides that its liability “also rests jointly and severally on each person who is a director of the first-mentioned legal person at the time the liability arises”. Both cases involve this structure: a holding company as director, and its own director as the natural person sued alongside it.

Supreme Court, 23 September 2016: an interim dividend on the day of a share sale

Facts

A holding BV, whose sole shareholder and director was a natural person, had carried on a business since 2004. On 29 May 2007 A B.V. was incorporated and the holding’s assets and liabilities were contributed to it with retroactive effect to 1 January 2007; the holding became A’s sole shareholder and director. An interim balance sheet at 30 June 2007 showed free reserves of €225,735 and a result for the current year of €55,301. Provisional 2007 figures dated 15 February 2008 showed free reserves at the end of 2007 of €231,539 and an after-tax result of €61,105 (Supreme Court, para. 3.1).

On 29 February 2008 the holding sold the shares in A for €350,000 to B B.V., owned and managed by the director’s brother; ABN AMRO Bank financed the whole price. The same day, just before the transfer, the holding as sole shareholder resolved to distribute an interim dividend of €225,735, “being the undistributed reserves as at 30 June 2007”: €165,000 was paid to the holding through a notary’s client account, and €60,735 was converted into a subordinated loan from the holding to A, for which B and the brother also became jointly and severally liable. On paper A borrowed €167,000 from the brother; in fact the brothers’ mother paid €165,000 through the notary to the holding, for the brother, as an advance on his share of the inheritance. The €60,735 loan carried interest, was repayable from 1 April 2008, and was subordinated under Article 3:277 of the Civil Code to ABN AMRO’s claims on the brother and B. A was granted a provisional suspension of payments on 6 June 2008 and declared bankrupt on 24 June 2008 (para. 3.1).

The trustee claimed, primarily, that the holding and its director were jointly and severally liable for the deficit under Article 2:248(1) in conjunction with Article 2:11; in the alternative, damages in tort towards the creditors; and further in the alternative, a declaration that the dividend resolution and payment were void or annulled and repayment of the €165,000, relying on Article 2:216(2)–(4) (old) and Articles 42 and 47 Fw (para. 3.2.1).

The district court

The District Court Arnhem found that the free reserves were not real. A debtor list dated 29 February 2008 totalled €468,295.62, of which €125,048 had been paid according to a handwritten note, leaving €343,247 outstanding; €150,000 had been passed to a collection agency, and handwritten remarks such as “case”, “do nothing with it” and “will be written off” appeared next to claims of more than €244,000. The dividend had been based “against better knowledge” on outdated figures (judgment of 23 May 2012, para. 4.8). A had hardly any liquid funds; the dividend was financed with new loans, which reduced its borrowing capacity, solvency and liquidity (paras 4.10–4.12). No reasonably acting director would have acted in this way, and the conduct was an important cause of the bankruptcy: the suspension of payments came about three months after the dividend and the bankruptcy within a month after that (paras 4.13 and 4.16); the director was jointly liable under Article 2:11 (para. 4.7). In its final judgment of 31 October 2012 the court refused to reduce liability under Article 2:248(4), because the holding, as recipient of the dividend, was the only party that had benefited in full (para. 2.4), rejected the other grounds for reduction (paras 2.5–2.7), and ordered the defendants to pay the deficit, to be assessed in separate damages proceedings.

The court of appeal

The Court of Appeal Arnhem-Leeuwarden reversed. It accepted the standard that, under the law before 1 October 2012, directors who cooperate in preparing and executing a dividend resolution perform their duties manifestly improperly if the reasonably foreseeable consequence is that creditors can no longer be paid in full, citing HR 6 February 2004, ECLI:NL:HR:2004:AO3045 (para. 4.4). But the dividend formed part of an acquisition structure chosen on the accountant’s advice with the buyer’s consent (para. 4.5). The provisional 2007 accounts contained, for the first time, a provision for doubtful debtors of €45,091 (paras 4.6–4.7). Taking the defendants’ figure that more than €190,000 of the €468,295 had been paid, about €270,000 was outstanding; long payment terms were common in construction, and the handwritten notes did not show that the claims were uncollectable (para. 4.7). Although no interim balance sheet at 29 February 2008 had been drawn up, the reserves could be assumed to be at least the 30 June 2007 amount (para. 4.8). The dividend did not use A’s liquid funds, and borrowing capacity had already been fully used before it (para. 4.9). There was no manifestly improper management and no important cause of the bankruptcy (para. 4.10), no tort (para. 4.12), no nullity under Article 2:216 (para. 4.13), and, while the resolution was a gratuitous act within Article 42 Fw, the company had not known and need not have known that creditors would be prejudiced (para. 4.14).

The Advocate General

Advocate General Timmerman proposed quashing the judgment. The complaints about the valuation of receivables succeeded: the trustee had explained his figures with a list the defendants had not contested, and the referral of €238,878 to a collection agency indicated that collection was at least problematic (paras 2.2–2.3). He relied on the judgment he calls Montedison (HR 28 April 2000, ECLI:NL:HR:2000:AA5658), from which it follows that a resolution to make an interim distribution can be a tort “in so far as the free reserves are not really present” (para. 2.3). On nullity, he rejected the trustee’s strict view that an interim dividend is always repayable where no final accounts are ever adopted: the recipient may have no influence over that, for example after selling its shares, and the creditor is protected by tort, citing Montedison and Nimox (HR 8 November 1991, ECLI:NL:HR:1991:ZC0401) (para. 2.12). He went further:

I am of the opinion that a breach of Article 2:216(2) and (4) is not sanctioned by nullity of the distribution (resolution) as long as no annual accounts audited by an accountant have been adopted from which the impermissibility of the distribution appears. (…) That does not mean that a breach of these paragraphs is without significance. A breach of these paragraphs can contribute to the conclusion that the receiving shareholder/director acted unlawfully towards the creditors.

Finally, the court of appeal should have applied the statutory presumption of knowledge of prejudice in Articles 43 and 45 Fw (para. 2.15).

The grounds and the Supreme Court’s reasoning

Receivables and free reserves (ground 1). The Supreme Court held incomprehensible the court of appeal’s finding that the trustee had “not further explained” his position that only €125,048 had been paid, leaving €343,247 on 29 February 2008, with only €53,000 collected afterwards; he had referred to an uncontested list of open items (para. 3.3.3). The court of appeal had also not adequately explained why no write-down or provision was needed, given the trustee’s case that €244,000 concerned problem debtors and €238,878 had been passed to a collection agency (para. 3.3.5). Its finding that the free reserves on 29 February 2008 were at least the 30 June 2007 amount therefore fell (paras 3.3.5–3.3.6).

Tort (ground 2). Because the court of appeal had rejected the tort claim on the same grounds, that ground succeeded too (para. 3.4.2).

Nullity (ground 3). The trustee argued that the interim dividend was void simply because no final annual accounts would be adopted showing sufficient free reserves. The Supreme Court disagreed and laid down the test:

In answering the question whether, in a specific case, the requirement in Article 2:216(4) in conjunction with (2) (old) (…) that a company making an interim distribution has the necessary financial room has been met, the adopted annual accounts of the company must be taken as the starting point. (…) the mere fact that no final annual accounts have been or will be adopted showing that the company has sufficient free reserves (…) does not mean that the interim distribution and the resolution underlying it are void (…). In such a case it must be examined, on the basis of the financial data concerning the company that are available, whether at the time of the interim distribution the requirements of Article 2:216(2) (old) were met. Only if they were not is there ground for nullity of the dividend resolution, with the consequence that the interim distribution was paid without legal ground.

It then added a remark that reaches beyond the old wording:

It should be noted that, even if the dividend resolution as such meets the requirements of Article 2:216(2) (old), the circumstances of the case may lead to the conclusion that the shareholders and directors of the company involved in the interim distribution acted unlawfully towards the creditors of that company (…), or that there was manifestly improper management within the meaning of Article 2:248(1) (…).

The Court cited HR 8 November 1991 (ZC0401), HR 28 April 2000 (AA5658) and HR 6 February 2004 (AO3045) for these propositions. Because the free-reserve finding had fallen, the nullity question had to be re-examined as well: the court after referral must again investigate whether A’s free reserves at the time of payment were at least the 30 June 2007 amount (para. 3.5.6). Here the Court parted company with the Advocate General, who had considered that ground 3.2 should fail because nullity required adopted, audited accounts.

Bankruptcy-law avoidance (ground 3.3). The court of appeal had accepted that the dividend was a voluntary act without consideration under Article 42 Fw. The holding owned all the shares in A and was its director, the individual was sole shareholder and director of the holding, and the payment took place less than a year before the bankruptcy. On those facts the court of appeal should have applied the special rules on the burden of proof in Article 43(1), opening words and under 5(a) and (d), Fw and Article 45 Fw, under which knowledge of prejudice is presumed subject to rebuttal (paras 3.5.7–3.5.8).

The remaining complaints failed without further reasons under Article 81(1) of the Judiciary (Organisation) Act (para. 3.6).

Outcome

The Supreme Court quashed the judgment of 20 January 2015, referred the case to the Court of Appeal ’s-Hertogenbosch, and ordered the respondents, who had not appeared in cassation, to pay the costs of the cassation proceedings, assessed at €2,096.02 in disbursements and €2,600 in fees, plus statutory interest if not paid within fourteen days (para. 4).

Supreme Court, 12 June 2026: the indirect director, the bank and the wind-down

Facts

Financiële Participaties Amsterdam N.V. (FPA), an investment company, had two directors, one of which was Energieweg 1 en 2 Holding B.V. (Energieweg); Energieweg’s director, a Belgian resident anonymised in the judgment, was thus FPA’s indirect director (Supreme Court, para. 2.1(i)). On 8 March 2007 Bank Degroof Petercam N.V. lent €2,000,000 to FPA and SSN Holding B.V., jointly and severally, repayable in full on 15 March 2012; the credit was used to buy shares in Parnassus Participatiefonds (District Court Amsterdam, paras 2.3–2.4; Court of Appeal Amsterdam, para. 4.4). The bank was also a former joint-venture partner and a minority shareholder of FPA (District Court Amsterdam, paras 2.5 and 2.8; Supreme Court, para. 2.1(v)).

FPA stopped performing; the bank sent demands in 2010, 2011 and 2012. On 6 November 2013 FPA replied that it was “technically insolvent” and could not make a repayment proposal (para. 2.1(iii)–(iv); District Court Amsterdam, para. 2.11). On 19 November 2015 FPA’s general meeting recorded that equity had been “very negative” for several years and authorised the management to wind up assets and liabilities and then liquidate FPA or let it continue dormant (para. 2.1(v)). In March 2018 companies connected with the indirect director, including Eikofin BVBA, of which he is the sole director, forgave loans to FPA totalling more than €900,000 (para. 2.1(vi)).

Meanwhile, at the level of Weaver B.V., an indirect subsidiary of FPA, the indirect director had been held jointly and severally liable alongside Weaver towards a creditor, Alstonville Properties B.V., for frustrating its recourse through a restructuring of Weaver’s assets. Weaver and the indirect director sought recourse against the law firm that had advised on that restructuring, financed by Eikofin at 10% interest. A settlement with Alstonville in May 2018 provided that any proceeds from the claim against the law firm would be shared with Alstonville, and Eikofin guaranteed €1,000,000 payable to Alstonville in any event (para. 2.1(vii)–(ix)). On 21 August 2018 the bank demanded €2,683,836.28 from FPA and held its directors personally liable (para. 2.1(x)). The law firm eventually paid €4.3 million, of which Alstonville received €2,825,135 and Eikofin €1,475,135 (para. 2.1(xi); the Supreme Court dates this settlement to April 2022, the Court of Appeal’s statement of facts to 4 April 2021).

The bank claimed €2,775,845 plus statutory interest from Energieweg and the indirect director jointly and severally, and a declaration that they had acted unlawfully (para. 2.2).

The district court

The District Court Amsterdam first established jurisdiction under Article 25 of the Brussels I bis Regulation and the application of Dutch law under Article 14(1)(a) of the Rome II Regulation, because the parties had agreed on the Amsterdam court for these proceedings and, during settlement talks, on Dutch law, departing from the choice of forum and of Belgian law in Article 16 of the credit agreement (paras 4.2–4.3). It ordered FPA to pay €2,775,845 with statutory interest from 15 June 2021, rejecting defences of prescription, waiver by conduct, an alleged “gentlemen’s agreement” and set-off (paras 4.6–4.18 and 5.1). It dismissed the claims against the directors. The bank had not substantiated that the indirect director knew in March 2007 that the credit could not be repaid (paras 4.22–4.23). On selective payment, the court stated the rule that a director is in principle free to decide which creditors to pay, citing HR 26 March 2010, ECLI:NL:HR:2010:BK9654, but that this freedom is more limited once the company has decided to cease its activities and lacks the means to pay all creditors; related creditors may then in principle not be preferred, citing HR 12 June 1998, ECLI:NL:HR:1998:ZC2669 (para. 4.25). The payments made were limited running costs to external parties, made possible by shareholder loans that were later forgiven, and the indirect director had produced bank statements and ledgers (para. 4.26).

The court of appeal

FPA did not appeal, so its own liability was final (Court of Appeal Amsterdam, para. 5.3). The Court of Appeal Amsterdam upheld the rejection of Beklamel liability (paras 5.12–5.16), a finding not challenged in cassation (AG Valk, para. 3.11). It explained the high threshold by the need for directors to have room to take risky decisions in the company’s interest without fear of liability (para. 5.10). But it then found personal serious reproach on the basis of six circumstances: the 2015 wind-down resolution, which limited the director’s “payment autonomy” (paras 5.22–5.24); the forgiveness of related-party loans and payment of more than €20,000 in operating costs, leaving the bank as FPA’s only creditor and Alstonville as Weaver’s (paras 5.25–5.27); the handling of the Weaver and law-firm claims entirely out of the bank’s sight, the bank being informed only in December 2018 (paras 5.28–5.29); the use of the settlement proceeds to discharge the director’s own exposure and pay Eikofin (paras 5.30–5.31); the failure to keep the interests of himself, Weaver and FPA separate and to show “the greatest possible openness” to the bank as minority shareholder (paras 5.32–5.33); and the absence of any provision for the bank, an offer of €50,000 in 2020 being “mustard after the meal” (para. 5.34). It concluded that the director had brought about or permitted FPA’s non-performance and should seriously have reckoned with a substantial unpaid claim remaining (para. 5.35), and that he had put the bank “with its back against the wall”, preventing it from petitioning for FPA’s bankruptcy (para. 5.37). It declared that Energieweg and the director had acted unlawfully and ordered them, jointly and severally, to pay damages to be assessed in separate proceedings, with costs of €12,405.66 at first instance and €14,717.86 on appeal (paras 5.56–5.61 and 6.1–6.2).

The Advocate General

Advocate General Valk proposed dismissing the appeal with summary reasons under Article 81 of the Judiciary (Organisation) Act (para. 1.2). He read the Ontvanger/Roelofsen categories as “rules of thumb” within the open duty of care of Article 6:162, and allowed courts to vary the required degree of foreseeability, provided they give fuller reasons (paras 3.4–3.8). He stressed the limit:

Personal liability of directors remains an exception to the principle that only the legal person itself, with its assets, is liable for its debts. Directors must also be allowed latitude in taking decisions in their capacity as director of the legal person. That is why the threshold of a serious personal reproach is essential.

In his view the court of appeal had applied a “hybrid” norm: a duty to inform, consult and investigate, combined with foreseeability of non-payment, triggered by the fact that only two large external creditors remained in the group and the director had a personal interest in paying one of them (paras 3.18–3.21). There is no general duty to inform every creditor about a settlement with a third party, but the care required of a director can in the circumstances create one (para. 3.109). The court of appeal had distinguished FPA and Weaver correctly: the bank did not have to be paid ahead of Weaver’s creditors, but its legitimate interests had to be taken into account in Weaver’s wind-down (para. 3.48). The statutory conflict-of-interest rules in Article 2:239(6) and Article 2:129(6) did not displace that duty of care (para. 3.82). Loss of the chance to petition for bankruptcy mattered because a trustee would have investigated (para. 3.119).

The Supreme Court

The Supreme Court grouped the complaints of grounds 2, 4, 5 and 6 (para. 3.1). They argued, among other things, that no rule of law obliged the director to inform the bank of the Alstonville and law-firm proceedings; that the court of appeal had not distinguished FPA from its granddaughter Weaver and had in effect treated the “FPA structure” as one; that Weaver was bound to use its assets to pay its own creditors; that restricted payment autonomy was irrelevant because FPA had made no payments after the 2015 resolution; that the loan forgiveness benefited FPA; and that the bank could still recover against FPA’s only asset, its indirect interest in Weaver.

The Court began with the threshold:

In dealing with the complaints set out in 3.1, the Supreme Court states first that, in general, a high threshold applies to the personal liability of directors.

It cited HR 30 January 2026, ECLI:NL:HR:2026:128, para. 4.1.2; HR 5 September 2014, ECLI:NL:HR:2014:2628, para. 3.5.2; HR 5 September 2014, ECLI:NL:HR:2014:2627, para. 4.2; and HR 20 June 2008, ECLI:NL:HR:2008:BC4959, para. 5.3. It then fixed three starting points from what the court of appeal had, and had not, found: Weaver was not found liable to the bank for FPA’s credit; Weaver’s position consisted only of its debt to Alstonville (for which the director was jointly liable), its debt to Eikofin for legal costs, and its recourse claim against the law firm; and there was no finding that Weaver, in paying €2,825,135 to Alstonville and €1,475,135 to Eikofin, paid them more than was due to them as its creditors (para. 3.2.1). Against that background:

(…) the court of appeal’s judgment is incomprehensible without further reasoning (i) that FPA was obliged to involve Bank Degroof in, or at least to inform it earlier about, Weaver’s recourse claim against the law firm and the law-firm settlement, and that [the director] can be personally seriously reproached in that respect, and (ii) that [the director] as indirect director of FPA brought about or permitted that FPA could no longer perform its obligations and that Bank Degroof’s claim remained unpaid and unrecoverable.

The second finding was all the more incomprehensible because FPA’s general meeting had already resolved in 2015 to wind up the company on account of its negative equity with no prospect of improvement (para. 3.2.2). The Court then took the remaining circumstances apart:

• Restricted payment autonomy. It could not support the judgment, because the court of appeal had not found any payment by FPA after the wind-down resolution that conflicted with a restricted payment autonomy, nor that the director had restricted autonomy as director of Weaver, and the bank was not Weaver’s creditor (para. 3.2.3).
• Loan forgiveness and operating costs. It was not apparent, without further reasoning, how they had adversely affected FPA’s ability to pay the bank (para. 3.2.4).
• Use of the settlement proceeds. The finding that they were used to avert the director’s own liability was inadequately reasoned, because the court of appeal had not considered that Weaver was paying its own debt to Alstonville, which in turn ended the director’s joint liability, nor the argument that between the director and Weaver it was Weaver that had to bear that debt. Nor had it explained why Weaver should have spent the proceeds otherwise than on paying Alstonville and Eikofin, or why the director, as indirect director of FPA, could be reproached for how Weaver spent them (para. 3.2.5).
• “Balanced” protection of both creditors. This ignored the distinction between FPA as the bank’s debtor and Weaver as Alstonville’s debtor, or at least it was unclear what the court of appeal meant (para. 3.2.6).
• Failure to make provision for the bank. For the same reason, the finding that the director should have made a “concrete provision” for the bank or investigated a solution was incomprehensible or unclear (para. 3.2.7).

The complaints therefore succeeded (para. 3.3). The other complaints of those grounds needed no discussion, nor did ground 10 in so far as it built on them (para. 3.4). The remaining complaints, which according to the Advocate General’s summary included those on prescription of the bank’s claim (ground 7) and on Energieweg’s liability and Article 2:11 (ground 8), could not lead to cassation and were dismissed without reasons under Article 81(1) of the Judiciary (Organisation) Act (para. 3.5).

Outcome

The Supreme Court quashed the judgment of 8 October 2024, referred the case to the Court of Appeal The Hague, and ordered Bank Degroof to pay the costs of the cassation proceedings, assessed at €1,049.47 in disbursements and €2,600 in fees, plus statutory interest if not paid within fourteen days (para. 4). It did not follow the Advocate General’s conclusion to dismiss.

How the judgments fit together

Different routes, different thresholds. The 2016 case shows the full range of claims a trustee can stack against those behind a company: collective liability under Article 2:248, tort under Article 6:162, nullity under Article 2:216 and avoidance under Articles 42–47 Fw. The 2026 case shows the position of a single creditor outside bankruptcy, with only the tort route and the high threshold of personal serious reproach. Paragraph 3.5.5 of the 2016 judgment links the two: compliance with the statutory distribution test does not by itself protect the shareholders and directors involved against tort liability towards creditors or against Article 2:248.

Economic substance and entity separation. In 2016 the Supreme Court insisted that the courts look at whether the reserves were actually there: a court that accepts receivables passed to a collection agency at full value must explain why no write-down or provision was needed. In 2026 it insisted on legal form: the court of appeal had not found that Weaver owed the bank anything, nor that Weaver paid its own creditors more than was due to them, and without such findings Weaver’s payments to its creditors could not ground a reproach against FPA’s director. These positions are consistent. Both protect the creditors of the entity whose assets are in issue, and both require the court to reason from findings about that entity’s actual position.

Reasoning, not new rules. Most of both judgments quash for inadequate or incomprehensible reasoning. The genuinely normative statements are few: the role of adopted accounts and available figures for interim distributions under the old Article 2:216 (2016, para. 3.5.4), the remark in para. 3.5.5, the duty to apply the presumptions in Articles 43 and 45 Fw in a related-party setting (2016, para. 3.5.8), and the reaffirmed high threshold (2026, para. 3.2.1). The 2026 judgment does not say that a director of a parent can never owe a creditor information about a subsidiary’s dealings; it says that the court of appeal did not explain how such a duty, or the bank’s loss, followed from the facts it had found.

Tensions with the Advocates General. In 2016 the Court followed AG Timmerman in quashing, but did not adopt his view that nullity requires adopted, audited accounts; it allowed nullity to be tested on whatever figures are available. In 2026 it did not follow AG Valk’s reading of the court of appeal’s judgment as a permissible concretisation of the duty of care. The AG’s analysis, that a personal interest of the director can justify a lower foreseeability threshold for liability and a “soft” duty to inform and consult (paras 3.6 and 3.20), was not endorsed, but neither was it rejected in terms.

Open questions. The Court of Appeal The Hague will have to decide whether serious reproach can be established on facts that respect the FPA–Weaver distinction, for example findings that Weaver overpaid Alstonville or Eikofin, or that FPA itself made payments in breach of a restricted payment autonomy. Whether a resolution authorising management to wind up “or” keep the company dormant has the same effect on payment autonomy as a formal dissolution under Article 2:19 is not discussed in any of the decisions. In the 2016 case, the Court of Appeal ’s-Hertogenbosch had to re-examine the free reserves on 29 February 2008, the tort claim, Article 2:248 and the avoidance claim with the reversed burden of proof.

What it means in practice

For boards approving distributions. The 2016 dividend was based on an interim balance sheet eight months old, and no balance sheet was drawn up at the payment date (Court of Appeal Arnhem-Leeuwarden, para. 4.8). Whatever the statutory wording, the Supreme Court’s approach means that the available figures will be tested against the receivables and provisions actually known at the time of payment. Under the current BV text the management board must also approve the distribution and assess whether the company can continue to pay its debts as they fall due (Article 2:216(2)), with personal liability for the shortfall if it should have foreseen otherwise (Article 2:216(3)). For an NV, the interim statement required by Article 2:105(4) must be recent and filed.

For distributions around a share sale or within a family. A dividend financed with new loans and paid to a related shareholder shortly before insolvency invites every route at once. If bankruptcy follows within a year and the parties are related as in the 2016 case, the recipient will have to rebut the presumption that it knew creditors would be prejudiced (paras 3.5.7–3.5.8). Under Article 2:248(6) the trustee’s claim covers improper performance of duties in the three years before the bankruptcy.

For directors of holding structures in wind-down. The 2026 judgment requires a court to take into account that a subsidiary which pays its own debts with its own money is doing what its creditors are entitled to, even where its director personally benefits because his joint liability falls away (para. 3.2.5). It does not protect a director who causes the debtor company itself to prefer related creditors once it has decided to cease its activities; the district court, citing earlier Supreme Court case law, described that limit (para. 4.25), and the Supreme Court’s criticism was precisely that no such payment by FPA had been found (para. 3.2.3). Where a director has a personal stake, the AG’s analysis shows how a court may infer a duty of openness: he connected it with a long-standing line in company law, citing an Enterprise Chamber decision of 26 May 1983 (ECLI:NL:GHAMS:1983:AC8007) that conflicting interests must be kept carefully separate and that the greatest possible openness is a safeguard for that (AG Valk, footnote to para. 3.20). After the 2026 judgment, such a duty needs to be anchored in findings about the entity that owes the creditor.

For creditors and minority shareholders. A claim against a director must identify which company owed what to whom and what that company did. The bank in the 2026 case was also a minority shareholder of FPA; at the appeal hearing the court asked whether it had used all its options as a small shareholder (AG Valk, para. 3.25). The general meeting of an NV is entitled to information under Article 2:107(2), and the inquiry procedure and its thresholds are discussed in our review of Enterprise Chamber inquiry strategy. Cross-border parties should also note that the bank, the director and the group agreed on Dutch courts and Dutch law after the dispute arose (District Court Amsterdam, paras 4.2–4.3).

Documents to keep. - board and shareholder resolutions on each distribution, with the figures used and the date of those figures; - debtor ageing lists, provisions for doubtful debts and collection-agency referrals at the date of payment; - the board’s assessment of whether the company can keep paying its debts (BV) or the filed interim statement (NV); - loan agreements and subordination terms used to fund a distribution; - for a wind-down: the general meeting resolution, a creditor list per entity, every payment and debt forgiveness with the paying entity identified, settlement agreements and correspondence with creditors and shareholders.

Status

The 2016 judgment referred the case to the Court of Appeal ’s-Hertogenbosch; the open-data metadata of the judgment lists no follow-up decision. The 2026 judgment referred the case to the Court of Appeal The Hague; it was given on 12 June 2026 and no further decision appears in its metadata. FPA’s own liability to the bank of €2,775,845 plus interest is final, as FPA did not appeal the district court’s judgment (Court of Appeal Amsterdam, para. 5.3).

The law on BV distributions has changed since the facts of the 2016 case: Article 2:216 in its current form, introduced by the reform of 1 October 2012, adds management board approval, a liquidity test and statutory liability for directors and recipients. The Supreme Court’s guidance in para. 3.5.4 was given on the old text; its remark in para. 3.5.5 about tort and Article 2:248 is not tied to that wording. The NV rules in Article 2:105 still follow the older model.

Provisions discussed

• Civil Code, Book 2: Art. 2:216, Art. 2:248
• Civil Code, Book 2: Art. 2:9, Art. 2:11

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How to cite

Case law review by BCA EU, for information. Quotations from the judgments are our translations; only the original texts published by the courts are authoritative. Judgments checked on the official sources on 30 October 2026. This page is not legal or tax advice.