NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
bankruptcy. If the board fails to keep proper account - ing records or fails to timely publish annual accounts, it has performed its duties improperly, and it is pre - sumed that the improper performance of duties is an important cause of the bankruptcy. This means that the improper performance is considered an irrefutable fact, but the directors may try to prove that this was not an important cause of the bankruptcy. Concurrence of Actions Whether there is a concurrence of claims by the trus - tee and an individual creditor based on the same facts, and whether this is permissible, depends on the claims brought. An example could be a situation where a trustee holds a director liable for the bank - ruptcy deficit because the board of directors improp - erly performed its duties and this can be seen as an important cause of the bankruptcy, and an individual creditor holds the director liable because they acted wrongfully towards them directly. In this situation, the director can be held liable by both the trustee in bank - ruptcy and the individual creditor. The trustee’s role is strictly to act on behalf of all creditors collectively. In the event that some, but not all, creditors incurred damage due to the mismanagement of the directors, these creditors must try themselves to obtain com - pensation from the wrongdoers; there is no role for the trustee here. In a different situation, a trustee may bring a wrongful act claim against a director for the benefit of the com - pany’s aggrieved collective creditors. The opportunity also remains for an individual creditor to bring this claim itself against the director based on the same facts. In this case, a proper liquidation of the estate requires that the court first decide on the wrongful act claim of the trustee and then decide on the individual creditors’ claim. 7.3 Duties and Personal Liability of Officers The task of the supervisory board is to supervise the policy of the board of directors and the general state of affairs of the company and its affiliated business. In addition, the supervisory board acts as an adviser to the board of directors. In performing their duties, the supervisory board members shall focus on the inter - ests of the company and its affiliated business (see 7.1 Duties of Directors ).
In principle, supervisory board members should super - vise in general terms, but under special circumstances the supervisory board should intensify its supervision – for example, when the company is in financial dif - ficulties, or when a substantial restructuring will take place. In performing its duties, the supervisory board can make use of various statutory powers, such as the power to suspend directors. In addition, the com - pany’s articles of association may also assign tasks and powers to the supervisory board. The statutory rules on directors’ liability have been declared applicable by analogy to supervisory board members (see 7.2 Personal Liability of Directors ). These provisions are interpreted taking into account the (entirely different) duties of supervisory board members. For example, supervisory board members may be jointly and severally liable for the bankruptcy deficit if they manifestly performed their supervisory duties improperly and this was an important cause of the company’s bankruptcy, or if the supervisory board allows the mismanagement of the directors to con - tinue without any (critical) advice and does not use its power to suspend a director. In general, it seems fair to state that supervisory directors will not be liable if there is no basis for directors’ liability. 7.4 Other Consequences for Directors and Officers Besides personal liability, wrongful acts by a director in their capacity can also lead to a director’s disqualifi - cation under civil law ( bestuursverbod ). At the request of the trustee in bankruptcy or the public prosecutor, the court may impose a disqualification on a director of a company when, for example, during the bank - ruptcy or in the three years prior to the bankruptcy of the company, the director was held liable for a bank - ruptcy deficit because they improperly performed their duties and this was an important cause of the bank - ruptcy, or when they acted fraudulently as a result of which creditors were prejudiced and these acts were avoided by the court. Wrongful actions by a director in their capacity may also lead to criminal liability. A director of a legal enti - ty may be punished with imprisonment for up to six years or a fine if, for example, they, knowing that this would prejudice the recovery possibilities of one or
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