Səhmdar məsuliyyəti: Holland BV üçün nə vaxt şəxsən məsuliyyət daşıyırsınız?

As a shareholder of a Dutch private limited company (besloten vennootschap, BV) you are in principle not personally liable for the company’s debts: under Article 2:175 of the Dutch Civil Code (BW), your risk is limited to what you must pay on your shares. The main exceptions are a 403 declaration or personal guarantee, a distribution you should have known the company could not afford, an unlawful act towards creditors, and acting as if you were a director, which can make you liable for the deficit in bankruptcy.

Below we set out where limited liability ends, which articles of Book 2 BW apply, and what you can do to keep your private assets out of reach. Article 2:64 BW contains the same basic rule for the public limited company (naamloze vennootschap, NV); this page focuses on the BV, the form most foreign shareholders use.

What does limited liability mean for a shareholder?

The BV is a separate legal entity: it enters into contracts, owns assets and incurs debts in its own name. Under Article 2:175(1) BW, a shareholder is not personally liable for what is done in the company’s name and does not have to contribute to losses beyond the amount that must be paid on the shares.

The rules for the BV are in Articles 2:175 to 2:284 BW. The board (yaxşı) manages the company, a supervisory board (raad van commissarissen) may supervise it, and shareholders exercise their influence in the general meeting (algemene vergadering). Under Article 2:217 BW, the general meeting holds all powers not given to the board or others, within the limits of the law and the articles of association. As long as you stay within that role, your risk of personal liability is small.

Which obligations do you have as a shareholder?

Your obligations come from three sources: the law, the articles of association (statuten) and any shareholders’ agreement. Whether you can be held liable depends first on which obligations you actually have.

Paying up your shares

Under Article 2:191 BW, the nominal amount must be paid when the share is issued, but it can be agreed that payment follows later or when the company calls it up. That deferral does not help in bankruptcy: under Article 2:193 BW, the bankruptcy trustee (kurator) can call up and collect all outstanding payments on shares, whatever the articles or the arrangement say.

Extra obligations in the articles of association

Under Article 2:192(1) BW, the articles can attach contractual obligations to shareholdership, set requirements for who may hold shares, or require a shareholder to offer and transfer shares in specified cases. Such an obligation cannot be imposed against your will, not even under a condition or a time limit. If you voted against the amendment, it does not bind you; if you agreed, a breach can make you liable for damages.

The shareholders’ agreement

Səhmdarların razılaşması (aandeelhoudersovereenkomst) binds only the parties who signed it. If you breach it, for example a non-compete clause, a transfer restriction or a financing commitment, you can be liable for damages under Article 6:74 BW, and many agreements add a fixed penalty for each breach.

Can a parent company become liable for its subsidiary’s debts?

Yes, through a 403 declaration (403-verklaring). Under Article 2:403(1)(f) BW, the parent declares in writing that it is jointly and severally liable for the debts arising from the subsidiary’s legal acts, so that the subsidiary does not have to publish full annual accounts.

Creditors of the subsidiary can then claim directly from the parent. Under Article 2:404 BW, the declaration can be withdrawn by filing a statement with the trade register, but liability continues for debts from legal acts performed before the withdrawal can be relied on. A personal guarantee given by a shareholder works in the same way: it creates liability that the ordinary rules do not.

When are you liable for a distribution the company could not afford?

Under Article 2:216(3) BW, a shareholder who received a distribution while knowing, or reasonably having to foresee, that the company could not keep paying its due debts afterwards must compensate the resulting shortfall. That obligation is limited to the amount you received, plus statutory interest from the day of the distribution.

Under Article 2:216(2) BW, a distribution resolution has no effect until the board approves it, and the board must refuse if it knows or should foresee that the company cannot keep paying its due debts. Directors who approve anyway are jointly and severally liable towards the company for the shortfall. Under Article 2:216(4) BW, a person who determined the company’s policy as if they were a director is treated as a director for this liability.

When are you liable for an unlawful act towards creditors?

Apart from your specific obligations, you can be liable under the general rule on unlawful acts (onrechtmatige daad) in Article 6:162 BW. The bar is high: the creditor must show that you can personally be blamed for the damage.

Selling your shares to a buyer who strips the company

If you sell your shares while you know, or have serious reason to suspect, that the buyer will strip the company and leave creditors unpaid, the sale can be unlawful towards those creditors. Whether you are liable depends on what you knew, what you should have known and what you did to investigate the buyer; a price or plans that seem too good to be true call for a closer check.

Improving your own position shortly before bankruptcy

A shareholder who is also a creditor sometimes arranges to be paid first, for example by repaying a shareholder loan or taking company assets as security. Under Article 42 of the Bankruptcy Act (Faillissementswet), the trustee can annul a voluntary legal act that the debtor knew or should have known would prejudice creditors. In serious cases, the shareholder can also be liable under Article 6:162 BW.

When are you treated as a director?

If you in fact determine the company’s policy as if you were a director, the law treats you as one. Under Article 2:248(7) BW (and Article 2:138(7) BW for the NV), such a de facto policy-maker (feitelijk beleidsbepaler) faces the same bankruptcy liability as a formal director.

Shareholders may give instructions to the board. Under Article 2:239(4) BW, the articles can provide that the board must follow instructions from another body, such as the general meeting, unless they conflict with the interests of the company and its business. The risk arises when you go further and run the daily business yourself: negotiating contracts, deciding on payments or managing staff.

What happens if the company goes bankrupt?

Under Article 2:248(1) BW, each director is jointly and severally liable towards the bankrupt estate for the deficit if the board manifestly failed to perform its duties properly (kennelijk onbehoorlijk bestuur) and this is likely to be an important cause of the bankruptcy. Jointly and severally liable (hoofdelijk aansprakelijk) means each liable person can be claimed for the full amount.

Under Article 2:248(2) BW, improper management is established, and presumed to be an important cause, if the board did not keep proper accounts under Article 2:10 BW or did not file the annual accounts on time under Article 2:394 BW; minor failures are disregarded. A director escapes liability only by proving that the improper management cannot be blamed on them and that they were not negligent in preventing its consequences (paragraph 3).

The court can reduce the amount if it is disproportionate (paragraph 4), and only improper performance in the three years before the bankruptcy counts (paragraph 6). For a shareholder, this liability only arises through the de facto policy-maker rule; an ordinary shareholder loses what was paid on the shares, but private assets stay out of reach.

Səhmdar olaraq nəyi yoxlamalısınız?

• Have you paid up your shares in full, and if not, how much is still outstanding under Article 2:191 BW?
• Do the articles of association or a shareholders’ agreement impose extra obligations on you, such as financing or a non-compete?
• Has a 403 declaration been filed with the trade register, or have you signed a personal guarantee?
• Before a distribution: has the board tested in writing whether the company can keep paying its due debts afterwards?
• Do your instructions run through the general meeting, or are you in fact managing the business yourself?
• If you sell your shares: have you investigated the buyer and its plans for the company?

What should you check as a creditor or trustee?

• Is there a 403 declaration or a guarantee that allows a direct claim against the parent company or shareholder?
• Were distributions made at a time the company could no longer pay its due debts, so that Article 2:216(3) BW applies?
• Were shareholder loans repaid or security given shortly before the bankruptcy, so that Article 42 Bankruptcy Act may apply?
• Did a shareholder in fact run the business, so that Article 2:248(7) BW may apply?
• Were the accounts kept and the annual accounts filed on time under Articles 2:10 and 2:394 BW?

What can we do for you with shareholder liability?

Bizim korporativ vəkillər advise shareholders, parent companies, creditors and directors. In practice, we:

• review your articles of association and shareholders’ agreement for obligations that reach beyond your shares;
• check whether a 403 declaration or guarantee exists and draft its withdrawal under Article 2:404 BW;
• document the distribution test before a dividend is paid;
• draft instructions to the board that stay within Article 2:239(4) BW;
• investigate a prospective buyer before you sell your shares;
• assess and respond to a claim from a creditor or a bankruptcy trustee.

xülasə

• Under Articles 2:175 and 2:64 BW, a shareholder of a BV or NV is not personally liable for the company’s debts beyond what must be paid on the shares.
• Extra obligations can come from the articles (only with your consent, Article 2:192 BW), a shareholders’ agreement, a guarantee or a 403 declaration.
• Under Article 2:216(3) BW, you must repay a distribution you knew or should have foreseen the company could not afford, up to the amount received plus statutory interest.
• If you act as a de facto director, Article 2:248(7) BW makes you liable for the deficit in bankruptcy like a formal director.

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