A shareholder of a Netherlands company limited by shares has limited liability. The Dutch Civil Code stipulates that shareholders are under the obligation to make payment to the company for the shares they acquire. If the shareholder fails to do so, he will be held liable. As a general rule the shareholder is not liable for the acts and omissions of the company.
The main rule in Dutch Company Law is that a shareholder is not obliged to do more than to pay up his share in the legal person. So whoever takes a share in a private company risks only losing the value of his share. This principle is laid down in Section 2:81 of the Dutch Civil Code: "A shareholder cannot, even by amending the articles of association, be obliged to impose any obligation above the payment up to the nominal amount of the share against his will."
The legal person in which the share is held participates independently in legal transactions and is in principle liable for its own debts. So the shareholder is not. Legal entities were created for this. Book 2 of the Netherlands Civil Code therefore does not contain a general liability ground for shareholders as those for directors and supervisory directors. There are a number of exceptions to this main rule. This article deals with some of those exceptions, where a shareholder can be held liable.
Article 2: 216 paragraph 3 of the Netherlands Civil Code stipulates that a person who received a dividend payment while he knew or should reasonably have foreseen that after the distribution the company could not continue to pay its due debts is obliged to compensate for the shortfall that was due to the distribution. has arisen, each for at most the amount or the value of the benefit received by him, with the statutory interest from the day of the benefit. This provision aims to prevent the irresponsible emptying of the company.
A second statutory liability of shareholders is liability based on the 403 statement, named after article 4:403 of the Netherlands Civil Code.
This is a written statement of the (indirect) shareholder filed with the Chamber of Commerce, in which he declares that he is jointly and severally liable for the debts arising from legal acts of the legal person. The 403 statement discharges the subsidiary from the obligation to publish its own financial statements, but does entail liability for the shareholder.
The most important exception to the limited liability of shareholders is found in tort law (Section 6: 162 Netherlands Civil Code). Those who act carelessly can be held liable for this. This open standard therefore makes it possible for shareholders to be held liable on a wide variety of grounds. However, it appears from legal literature and case law that this concerns four situations in particular, which I will discuss below.
First, there is the situation in which the shareholder has been involved in raising a creditor's legitimate expectations of the company's creditworthiness.
Liability comes into play here if there is a tight group structure between the shareholder and the company, as a result of which the shareholder has 'intervention power', whereby the shareholder has also interfered intensively with the policy of the (subsidiary) company.
If a financing that is necessary for the company has been stopped by the shareholder or if he has ensured that financing has been discontinued, this may constitute liability. So the more dependent the company is on the shareholder, the faster liability can be an issue.
Then there is the situation where the shareholder wrongfully improves his own position vis-à-vis other creditors. This often happens shortly before bankruptcy, but can also lead to liability in other cases.
Finally, the shareholder is often also a director of the company. In those cases, liability of the shareholder in his capacity as director is a more obvious choice than in his capacity as shareholder. See the article about this directors' liability.
Our lawyers regularly advise and litigate on liability of directors, shareholders and supervisory directors. Call or mail us so we can discuss your case with you without obligation. We are there to help. It is not without reason that our motto is: "Your problem, our concern." Call us today.
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