Directors liability for distributions to shareholders according to the new Dutch (Flex-) BV act
PhD student: Mr R.E.H. Canisius
Promotors: Prof C.A. Schwarz, Dr J. Hamers
Duration: 1/3/2013 - 28/2/2015
PhD defence: Maastricht, 10/12/2014
Since the Act on Simplification and Flexibilisation of rules governing Dutch BV\'s has entered into force, creditor protection is no longer based on a system with a threshold capital requirement for the Dutch BV. The new system revolves around article 2:216 DCC. Following this article, the management board now has a right of veto in respect of distributions to shareholders. The board can only exercise this right if it is aware, or reasonable should be aware that the company will not be able to continue to pay its due en payable debts. The main question of this study is whether or not article 2:216 DCC is sufficiently understandable and workable in practice. The interpretation of the new liability standard is a matter to be developed in case law. In this study we will provide a clear inside on the explanation and use of article 2:216 DCC. Most probably, the responsibility of the management board for distributions will result in an increased risk of liability. In this study we will point out the possibilities for a board member to limit or prevent the risk for liability. Furthermore we will explain the meaning of article 2:216 DCC as opposed to the other grounds of liability following from Dutch law. Article 2:216 DCC creates a tension between the shareholders and the board. We shall look at the extent to which the new distribution test provides a discretionary competence for the management board. We question whether this discretionary competence of the board disturbs the relationship between the general assembly and the management board.
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