Directors’ liability and corona
preface
The corona crisis chops there, also economically seen, hard at. It number bankruptcies in middle and small company takes to and probably shall there in the walk from 2020 yet a big number businesses bankrupt. To directors’ liability in case of bankruptcy to appearance is it matter Which entrepreneurs their Affairs, and than in particular a number formal aspects, good on order to have. The question is whether our legislator intends to remove some of the sharp points from those formal issues in the context of the formal aspects of the corona crisis and in the context of the emergency legislation put forward in this context. And than have got I it in particular about the so-called accounting obligation and the publication obligation. What this last regarding turns out from research Which less than 50% from the companies subject to publication in 2018 to be Financial Statements about 2016 within the applicable terms Bee the Chamber of Commerce deposited has. In case of bankruptcy can Which until great issues lead.
How sat it also again with directors’ liability?
The matter from directors’ liability Bee bankruptcy is regularly in art. 2:248 BW. As a result paragraph 1 of Which article is every driver from a bankrupt partnership towards the estate jointly and severally liable for the price of the debts, in front of so far That not from liquidation from the others benefit can turn into satisfied, in the event that it board to be task apparently unseemly has fulfilled and plausible is Which Which a important cause is from it bankruptcy. Two important elements in That text to be the “improper task fulfillment” and “the assumption Which That impossible taskfulfillment a important cause is from it bankruptcy”.
Member 2 from aforementioned article fills thereafter in what by definition is becoming seen as “improper task fulfillment”. When a driver not has satisfied On the accounting obligation (from art. 2:10 BW) or On the publicationcommitment (from art. 2:394 BW), than has it board to be task unseemly fulfilled. In short, when one of those both obligations (or both obligations) not is/to be fulfilled than state irrefutable fixed Which talk is from improper task fulfillment. Counter-evidence is than not possible. Furthermore applies Which when is certain Which there talk is from improper task fulfillment, That improper task fulfillment is becoming suspected a important cause to to be from it bankruptcy. And against this last is well rebuttal possible. In other words: thereby is well talk from a refutable rightsuspect.
Administrative obligation
Art. 2:10 BW says Which the administration from a partnership such must to be Which from there at all times the rights and obligations from the partnership could / could become known. In short, a driver from a partnership must there in front of to care Which there a good accountancy/administration is becoming lined. A adequate administration mfoot meet On the requirements from clarity, reliability and controllability and exists not only from the financial data but also from not-financial data That job to have on the assets and on everything concerning the activities from the legal person.
Publication obligation
Art. 2:394 BW writes in front of Which appearance 12 months after ending from a financial year a legal person her Financial Statements, management report and others data public should make through this one pieces down to to lay Bee it Business Register from the Chamber of Commerce. In short, it board from the partnership has maximum 12 months to the Financial Statements to to do draw up, this one good to approve and this one thereafter Bee the Chamber of Commerce to deposit.
Government measures corona
Ask is or the government in the temporary Law Covid-19 Gravytitie and Safety, also well the Corona Emergency law called, measures hits to the administrative obligation and/or the publication obligation to “soften”. What regarding the administrative obligation is Which absolutely not it case. That commitment state and is becoming not softens. The corona crisis can therefore never quoted turn into as soothing circumstance why not or not fully On the administrative obligation is satisfied.
What regarding the publication obligation coming the legislator the driver from a company well to meet. In That emergency law is concerning the publication obligation the following determination included:
“In deviation from art. 2:248 member 2 BW is becoming a absenteeism from the commitment from art. 2:394 BW until disclosure from the Financial Statements That job has on it most recent locked financial year not in consideration taken, in the event that Which to due is On the effects from the outbreak from Covid-19”.
Please note: this one allowance applies So only in front of it most recent locked financial year and not in front of earlier locked financial years. When it not timely public to make from the Financial Statements it consequence is from the outbreak from it coronavirus than applies Which absenteeism not as a irrefutable suspect from apparent improper task fulfillment. However, the concerning driver serves well On to show Which it absenteeism from the publication obligation to due is On the effects from the outbreak from it coronavirus. A driver can So not suffice with a single reference to the corona crisis, but must On the hand from the circumstances demonstrate Which he through it coronavirus the commitment not is can keep up. Therefor serve concrete facts and circumstances to turn into asked. According to the memorial from explanation must thereby thought turn into On situations Which a General Meeting of Shareholders as a result of the coronacrisis not has can Get on and therefore the Financial Statements not fixedasked could turn into or that the Financial Statements not could turn into lined up or established through disease from the accountant. In short: well a allowance what regarding the publication obligation but not what regarding the accounting obligation.
It rebuttable suspect in the form from a Others important cause from it bankruptcy
When is certain Which talk is from improper task fulfillment (because acted is in struggle with the administrative obligation and/or the publication obligation or because otherwise talk is from improper taskfulfillling) serves yet tested to turn into or the concerning improper task fulfillment seen must turn into as a important cause from it bankruptcy. Bee improper task fulfillment as a result of to trade in struggle with the administrative obligation and / or publication obligation is becoming suspected Which Which a important cause from it bankruptcy is, but is rebuttal possible. When otherwise talk is from improper task fulfillment than lies the burden of proof in front of the rack Which That improper task fulfillment a important cause is from it bankruptcy Bee the curator.
A driver That through the curator is becoming addressed due to violation from the administrationduty en/or the publication obligation can it legal suspect Which Which a important cause from it bankruptcy is disprove through plausible to to make Which Others facts or circumstances than That improper task fulfillment a important cause from it bankruptcy to be been. Not necessary is Which the addressed driver “proves” Which Others facts or circumstances a important cause from itbankruptcy. Hecan with it suffice Which “plausible to to make”. In a standard judgment from 2006 (from Peels Construction materials) has the High Council considered Which “not necessary is Which proven is becoming Which it maladministration not also a important cause is been from it bankruptcy, but only Which plausible is becoming made Which Others facts or circumstances (also) a important cause to be been”.
But then those other facts and circumstances must not be facts and circumstances that can themselves be regarded as manifestly improper performance of tasks; after all, as a driver you get into the drip from the rain.
Moral from it story is Which you as driver from a partnership both the administrative obligation as the publicationduty must keep up and furthermore also no actions serves to perform That no reasonable thinking driver below the same circumstances thus would conductedand. The legislator enter the emergency law in connection with the corona crisis what the publication obligation regarding well additional respite at which applies Which you not can suffice with reference to the corona crisis as cause in front of it not or to late to publish from the required pieces, but clearly serves to to make why you like consequence from the coronavirus outbreak not On That commitment has can meet.
Need advice?
Should you ask to have about directors’ liability hesitate than not to to contact with lawyers Peter Kostons or Lotte Oostdam from U.S office.
This blog post was posted on June 11, 2020
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