Netherlands

BREAKING: Coronavirus (COVID-19) considerations for directors

1. What are the key issues for directors during the COVID-19 crisis?

Financial and business challenges

During the COVID-19 crisis, directors will face several challenges. Companies may encounter solvency issues due to delayed payment streams. Existing operations including supply and distribution chains, and internal processes such as accounting, reporting and HR management, may be disrupted. One of the company’s key priorities becomes taking measures to ensure safe working conditions for the company’s staff and stakeholders. The short and long-term strategy of companies may change as a result of the crisis. Directors will need to find a way to continue the business of the company while serving the company’s best interest. It is unclear when the current lockdown rules will be relaxed or exited and when, how and in what timeframe the economy will recover. During the COVID-19 crisis, directors need to be proactive and may want to consider the following action:  

  • carefully assess the short and long-term financial sustainability of the company
  • investigate different scenarios (ranging from best to worst-case scenario), and make plans to cope with these scenarios
  • ensure that all information on which projections and/or decisions are based is properly documented
  • evaluate dividend distributions to shareholders and assess whether these would lead to financial distress
  • adopt an appropriate internal and external communication strategy
  • determine which emergency measures offered by the Dutch government are relevant for the company (see below) and
  • seek specialist advice, both legal and financial, if the company’s solvency is in question.

Board and shareholder meetings and corporate housekeeping

Due to the ban on public gatherings and the social distancing rules, it may be difficult for directors to hold their regular meetings. There is no restriction under Dutch law on holding virtual board meetings, but the company’s articles of association may provide otherwise. Directors should assess the possible methods of communication with the company’s shareholders, taking into account any upcoming general meetings or required shareholder approvals. Many shareholder approvals may be obtained by written resolutions, but directors should check the company’s articles of association for any restrictions in relation to board and/or shareholder meetings. Furthermore, directors should take into account the new temporary legislation that entered into force on 24 April 2020. This temporary act allows the management board to decide that the annual general meeting of shareholders is held by electronic means of communication (e.g. audio, video, virtual platforms).

During this crisis, the importance of proper corporate housekeeping and communication should be emphasised. Directors should keep each other informed, keep a clear record of their decision-making, including all considerations and information relevant for the decisions, and ensure that such records are available from other corporate bodies as well.

2. What government relief measures have been made available to directors?

In considering the issues noted above, directors need to be aware of the measures that have been announced by the Dutch government to assist companies through the crisis, and determine which ones are relevant to their company.

In the Netherlands, the most relevant measures for companies include:

  • emergency finance facilities for SMEs and large businesses (e.g. business loan guarantee scheme (GO), SME credit guarantee scheme (BMKB-C), and extended export credit insurance schemes)
  • the Temporary Emergency Bridging Measure to Preserve Employment (NOW), a subsidy introduced by the Dutch government to cover wage costs for those businesses hit by the current crisis
  • compensation for entrepreneurs in affected sectors (TOGS), such as retail, hospitality and leisure, and
  • deferment of tax payments.

These relief measures are covered in more detail in other CMS publications (see our COVID-19 page) and can also be viewed here. More generally, directors’ duties remain as before, as set out in the rest of this guide. The key duty is to manage the company in accordance with the company’s best interests, and this should be the guiding principle for all actions taken by directors.

3. What changes have been made to directors’ duties as a consequence of the COVID-19 crisis?

New temporary legislation containing temporary measures within the scope of the Ministry of Justice and Security as a result of the COVID-19 pandemic entered into force on 24 April 2020. The temporary legislation addresses inter alia the corporate governance challenges that Dutch companies may encounter due to the crisis.

Pursuant to this new legislation, management boards may extend the deadline for filing the company’s annual accounts. Generally, the management board must prepare the annual accounts within 5 months after the end of the financial year. The general meeting has the authority to extend this deadline by another 5 months. If the management board decides to make use of the 5 months’ extension, the general meeting no longer has the authority to extend the deadline (i.e. no cumulative extension is possible). The obligation for directors to file the annual accounts within 12 months following the end of the financial year remains in force. This measure will expire on 1 September 2020.

In the event a company is declared bankrupt and it appears that the company has not filed its annual accounts with the Dutch Trade Register in a timely manner, there is a binding presumption – which cannot be challenged or proven wrong – that there has been apparent negligence and a further presumption that such apparent negligence has to a significant extent caused the bankruptcy. Directors may be held liable for the company's debts if such improper management (i.e. failing to file the annual accounts timely) has taken place within 3 years prior to the company’s bankruptcy. Pursuant to the new temporary legislation, this binding presumption will not apply if the directors can adequately demonstrate that the failure to file the company’s annual accounts on time is a result of the COVID-19 pandemic. This measure will expire on 1 September 2023.

Directors duties and responsibilities

1. What form does the board of directors take?

In the Netherlands, the management structure of a company is generally based on a two-tier board system. This consists of a management board (“raad van bestuur”), which is the executive body, and a separate supervisory board (“raad van commissarissen”), which advises and supervises the management board. A member of a management board is usually called a “directeur” or “bestuurder” and a member of a supervisory board is generally referred to as a “commissaris”.

A supervisory board is optional for most Dutch companies but mandatory for large companies (“structuurvennootschappen”). As a rule, a supervisory board is mandatory when:

  • the company’s issued capital plus reserves amounts to at least EUR 16 million
  • the company (or the group to which it belongs) has a works council, and
  • the company and the group to which it belongs collectively employ at least 100 people within the Netherlands.

As of 1 January 2013, Dutch law provides for the possibility of a one-tier board system. In a one-tier board, the board is made up of executives, who are responsible for the company’s general governance and day-to-day business, and non-executives, who are responsible for both supervision and the company’s general governance. The corporate body appointing the directors determines whether a director will be an executive or a non-executive director. To implement a one-tier board, the articles of association must be amended to provide that the management tasks are divided among executive directors and non-executive directors. Executive directors may not occupy the position of chairman of the board. Furthermore, executive directors may not participate in the decision-making process regarding the appointment of other directors or their own remuneration.

2. What is the role of non-executive or supervisory directors?

Essentially, supervisory directors supervise and advise the management board in relation to the company’s business. Like members of management boards, supervisory directors must act in accordance with the company’s best interests. The supervisory board is not authorised to represent or bind the company towards third parties. The company’s articles of association may subject certain resolutions of the management board to the supervisory board’s prior approval. A mandatory supervisory board within a large company has the right to appoint, dismiss and suspend directors of the management board.

The role of non-executive directors depends on the allocation of duties within the one-tier board. Generally, non-executive directors have a supervising role. Non-executive directors are allowed to nominate candidates for a position as (non-)executive director within the board and will resolve on the remuneration of the executive directors. One of the non-executive directors will occupy the position of chairman of the board.

3. Who can be appointed as a director?

There are no legal restrictions on who can become a director. The articles of association may contain specific requirements in respect of the eligibility of directors and the right to nominate candidates. A company – whether incorporated in the Netherlands or elsewhere – can also be appointed as a director.

For a company not applying the one-tier board system, there is a minimum of 1 and no maximum to the number of directors that the company may have, except for any minimum or maximum prescribed by the articles of association. A company with a one-tier board must have at least 1 executive director and 1 non-executive director.

An individual director is not required to be resident in the Netherlands and there is no nationality requirement, unless otherwise required by the articles of association. If the articles of association contain such a requirement, discriminating between Dutch citizens and citizens of other EU countries is not permitted.

As per 1 January 2016, legislation came into force in order to fight bankruptcy fraud. It is possible to impose a restriction on a fraudulent director of a bankrupt company on becoming a director of another company or incorporating a new company. The public prosecutor or receiver in bankruptcy can request such a ban in court, except in the case of criminal prosecution. If the court has imposed a ban, the individual concerned is not allowed to be a director, supervisory board member, proxy holder or any other authorised representative of any Dutch legal entity. The ban will remain in force for a maximum of five years. Any appointment made despite a ban having been imposed is void.

4. How is a director appointed?

A director is normally appointed by the general meeting of shareholders. If the company has a mandatory supervisory board, qualifies as a large company and is not subject to certain exceptions provided by law, the directors are appointed by such supervisory board. The supervisory board must in this case notify the shareholders’ meeting of any proposed nomination.

If the company has a works council, the works council should have the opportunity to render non-binding advice on the contemplated appointment before the appointment is made. The management board is therefore required to give the works council prior notice of any proposed candidate for appointment to the board. The works council’s rights are more extensive if it concerns a large company where the supervisory board is mandatory.

Notification of the appointment, together with the signature of the director, must be filed by the company with the Dutch Trade Register. The Dutch Trade Register will also require a certified copy of the director’s passport and certain personal details, including his/her full name, nationality, date of birth, and (evidence of his/her) residential address. Disclosure of this information to the Dutch Trade Register is compulsory. The information held by the Dutch Trade Register is publicly available subject to payment of a fee, but residential addresses of directors can only be viewed by certain designated professional organisations such as lawyers, civil-law notaries and public authorities (such as tax authorities and courts). The filings with the Dutch Trade Register in relation to newly appointed directors can also be performed by a Dutch civil-law notary.

Directors are usually appointed for an indefinite period of time. Appointments for limited periods and reappointments are possible.

A director of a large company is prohibited from holding more than two supervisory positions at another large company or a Dutch foundation. In any event, such director may not occupy the position of chairman of such a supervisory board. If an appointment causes an executive director or a non-executive director to hold more than the maximum number of supervisory positions, that appointment is null and void. However, this does not affect the validity of decisions taken by that director.

5. How is a director removed from office?

A director may resign his/her office at any time by notifying the company. If the director has an employment agreement with the company, such notice will automatically lead to termination of the employment relationship. Such resignation may, however, constitute a breach of the employment agreement.

A director can be removed from office at any time. Removal requires a resolution of the shareholders. If the company has a mandatory supervisory board, the directors are normally removed by such board. The supervisory board must seek the opinion of the general meeting of shareholders prior to the removal. The director should be informed of the reasons for the proposed removal and be given the opportunity to give his/her views on the proposed removal prior to any contentious removal.

If the company has a works council, the works council should be granted the opportunity to render non-binding advice on any proposed removal.

If the director has an employment agreement with the company, the agreement usually terminates upon his/her removal from the board. The contractual notice period agreed in the employment agreement must be respected. If the company does not respect the contractual notice period, it must pay fixed damages to the director. In such a case, the director cannot be required to comply with any non-compete obligations in his/her employment agreement. If termination of the employment agreement is deemed to have been obviously unreasonable, unjustified or improper, the director may also be entitled to damages. In most cases a settlement is reached regarding the effective date of termination and the financial compensation. A director can also be suspended.

Any resignation, suspension or removal of a director must be notified to the Dutch Trade Register.

6. What authority does a director have to represent the company?

Each director has the authority to represent the company. The articles of association may provide that the company may only be represented by 2 or more directors, acting jointly or with certain third parties. Such joint authority to represent the company must be registered with the Dutch Trade Register to be effective towards third parties. 

The full board is always authorised to represent the company. Although the articles of association may require internal approval for specific resolutions, they cannot limit the external transactional powers of the directors in respect of specific matters or in respect of the size or nature of any one transaction. Consequently, non-compliance with these internal approval regulations will not affect the validity of the transactions transacted by directors, but may lead to liability towards the company.

7. How does the board operate in practice?

The board may adopt internal working rules which describe the duties, responsibilities and powers of each director as well as the rules applicable to board meetings. The adoption thereof can be made subject to prior supervisory board or shareholders’ approval in the articles of association. When adopting internal working rules, the points below should be taken into account.

Directors, as members of the board, jointly have all the powers to manage the company, except for those limited powers which by law are, or may be, attributed to the shareholders or to the supervisory board. Those limited powers may include the right of prior approval of certain decisions of the board. For listed and certain other large companies, approval of the shareholders is always required in respect of a number of important decisions regarding the core identity of the company.

The members of the board have collective responsibilities. They share responsibility for all decisions and acts of the board and for the acts of each individual director.

The main direction of a company’s policy and its financial management and any other important decisions must be agreed by the board as a whole. Certain specific duties of the board may be allocated among the directors in or pursuant to the articles of association. For instance, tasks can be divided between executive and non-executive directors in a company with a one-tier board. The basic rule of collective responsibility will continue to apply and each director can in principle be held liable for mismanagement. In the event of mismanagement an individual director can avoid liability if he/she proves that the mismanagement was not attributable to him/her – taking into account the duties allocated to him/her – and that, in addition, he/she was not negligent in taking action to prevent mismanagement by the board.

8. What contractual relationship does the director have with the company?

Appointment as a director does not in itself constitute a contract with the company or entitle a director to remuneration. Unless the articles of association provide otherwise, the shareholders have the right to decide on the remuneration of the directors. For listed and certain other large companies, it is in any case mandatory for the shareholders to determine the directors’ remuneration policy.

Besides the directorship, a director may also have a contractual relationship with the company:

  • as a consultant providing services under a consultancy agreement
  • through a company or firm which contracts with the company to provide the director’s services (management agreement)
  • as an employee under an employment agreement.

The tax treatment of these options is different in each case. Termination of any such contract will not automatically terminate the director’s directorship. Termination of the directorship, on the other hand, will automatically terminate the employment agreement and may constitute termination of the consultancy or management agreement. Furthermore, termination of the directorship may constitute a breach of the consultancy agreement, management agreement or employment agreement.

9. What rules apply in respect of conflicts of interest?

A conflict of interest will only affect the company’s internal decision-making process and not a director’s ability to represent the company externally. Neither a management board member nor a supervisory board member may participate in any deliberations or decision-making processes involving a matter in relation to which he/she has a direct or indirect interest which conflicts with the interests of the company. If the management board is unable to take a decision due to a conflict of interest on the part of all its board members, the decision must be taken by the supervisory board. If there is no supervisory board or if all supervisory board members are conflicted as well, the decision must be taken by the general meeting of shareholders, unless the articles of association provide otherwise.

10. What other general duties does a director have?

The board is entrusted with the management and representation of the company. This is a collective responsibility, for which each individual director is liable. Directors must act in the best interest of the company. As mentioned before, directors may allocate the management tasks among themselves, but the principle of collective responsibility entails that the directors must always resolve collectively on the main direction of a company’s policy and its financial management and on important issues.

Each director is under a duty of care vis-à-vis the company to “properly” perform his/her part of the management tasks assigned to him/her. The director is under a duty to use all reasonable endeavours to achieve this, but he/she does not have to guarantee any results.

In case of improper performance, a director is, in principle, only liable for losses of the company in cases of serious mismanagement. From case law, it seems to follow that for some cases a more severe test will be applied, i.e. would any other competent director, acting reasonably, have made the same decisions?

In a one-tier board structure, the above-mentioned basic rule of collective responsibility applies in a similar way. Non-executive directors may find it easier, though, to avoid liability for mismanagement by pointing to the allocation of tasks and their role within such a management board.

Directors are also subject to a duty of care. This duty is derived from the principle that all those involved with the company pursuant to the law or its articles of association must apply the principles of reasonableness and fairness in their dealings with each other.

11. To whom does the director owe duties?

The director’s duties are owed to the company itself, rather than to its shareholders. Directors must at all times act in accordance with the interests of the company (“vennootschappelijk belang”).

12. How do the director’s duties change if the company is in financial difficulties?

Directors may be held personally liable if they undertake or enter into obligations on behalf of the company when the directors know or should have known that the company will not be able to meet such obligations. If a company is in financial difficulties, the directors should make sure that the company’s financial information is up to date and should thoroughly assess whether the company will be able to meet new obligations. The director’s duties will not significantly change when the company is in financial difficulties, but there are some duties that become more important when a company is in financial distress. Directors should maintain the company’s financial records properly and ensure that the company’s annual accounts are prepared and filed with the Dutch Trade Register on time. Furthermore, the directors should properly maintain the company’s corporate housekeeping (i.e. adopting and documenting resolutions in accordance with Dutch law, the company’s articles of association and, if applicable, board regulations).

As soon as the directors are aware that a company is in financial difficulty, they should seek external advice.

13. What potential liabilities can a director incur?

A distinction should be made between liability towards the company (internal liability) and liability towards third parties (external liability), including in either case a receiver in bankruptcy acting as their representative. For each of these two situations, only the most common types of liability of directors will be discussed.

In order for liability towards the company for mismanagement to arise, there must be serious negligence on the part of the director. As already stated, a more severe test may be applied in specific cases. As a general rule, the responsibility of the board towards the company is of a collective nature, but each director is also responsible to the company for proper performance of the specific duties assigned to him/her.

If a matter falls within the scope of responsibility of two or more directors, they are jointly and severally liable for mismanagement, unless a director is able to prove that the relevant shortcoming is not attributable to him/her. In order to satisfy this burden of proof, the relevant director must show that he/she was not personally negligent and that he/she did not fail in his/her duty to take action to avoid or prevent the consequences of the mismanagement. Certain important matters are by definition always part of the tasks and duties of each director, including but not limited to the main direction of a company’s policy and its financial management.

Taxes

If the company is unable to pay certain of its taxes or social premiums, it must notify the relevant authorities of its inability to pay within 14 days after the due date. In the absence of such notification, or if the inability to pay is caused by apparent negligence of the management board, the directors are jointly and severally liable for the relevant taxes and social premiums. Individual directors have the right to exculpate themselves, but in practice exculpation will only be possible in exceptional circumstances. If the company is declared bankrupt, the directors are personally liable for the deficit in bankruptcy if the bankruptcy is to a significant extent caused by the apparent negligence of the management board during a three-year period prior to the date of bankruptcy.

Financial records

If the company has not kept proper financial records or has not filed its annual accounts with the Dutch Trade Register in a timely manner, i.e. at the latest 12 months after the end of the financial year, there is a binding presumption – which cannot be challenged or proven wrong – that there has been apparent negligence and a further presumption that such apparent negligence has to a significant extent caused the bankruptcy. Directors may be held liable for the company's debts if such improper management (i.e. failing to file the annual accounts timely) has taken place within 3 years prior to the company’s bankruptcy. the company’s bankruptcy. Again, individual directors have the right to exculpate themselves, but in practice exculpation will only be possible in exceptional circumstances. Except in certain combinations of complex and unusual circumstances, current Dutch law does not provide for shareholders’ derivative suits. A breach of the duty of care may give rise to an action by the company or the receiver in bankruptcy against the management board or members thereof for mismanagement.

Tort

An important legal basis for liability of the directors towards third parties is tort (“onrechtmatige daad”). Creditors of the company, for example, may hold a director liable on the basis of tort if he/she entered into a transaction on behalf of the company when he/she knew, or reasonably should have known, that the company would not be able to fulfill its obligations under that transaction. Directors may also incur personal liability in the event of environmental pollution, fraudulent transfer of assets, unjustified inequality in the treatment of creditors, erroneous or misleading financial statements, a misleading prospectus or certain breaches of the competition law, for example. Establishing such personal liability for failure by directors to assess the admissibility of dividend distributions is being contemplated.

Distributions

The distribution of dividends and reserves requires the prior approval of the management board. The management board must refuse approval if it knows or can reasonably foresee that the company will not be able to continue to meet its liabilities after the distribution. The consequence of wrongful approval is joint and several liability of the directors for the deficit caused by the distribution. The recipients of a distribution can be held liable for compensation if they did not act in good faith, meaning if they knew or could have reasonably foreseen that the company would not be able to continue to meet its liabilities after the distribution.

Criminal law

Under Dutch criminal law, a company can commit crimes. The individual who is directly responsible for the criminal behaviour of the company may also commit a crime. Accordingly, members of the management board may, in the event of personal liability for mismanagement under civil law, sometimes also face criminal sanctions.

In specific instances, some form of director’s liability may also arise: (i) in respect of individuals who, without being appointed, effectively manage the company as if they were directors; (ii) for an individual who is the director of a company that is also a director; or (iii) for supervisory directors.

14. How can a director limit his/her liability?

No statutory provision or case law exists which relates directly to the validity and enforceability of indemnities by the company. Indemnification clauses are rare because their effectiveness is generally considered to be limited. A company is permitted to take out directors’ insurance on behalf of its directors. Insurance policies usually contain many exclusions and limitations (such as in the event of deliberate or fraudulent acts on the part of a director).

Picture of Roman Tarlavsky
Roman Tarlavski
Partner
Amsterdam
Picture of Lisanne van der Velden
Lisanne van der Velden
Advocaat
Amsterdam