the liability of supervisory directors

The duty of the supervisory board is to supervise the policies of the management board and the general affairs of the company and its affiliated enterprise. It shall assist the management board with advice. In discharging their role, the supervisory board members shall be guided by the interests of the company and its affiliated enterprise (article 2:140 paragraph 2 and 2:250 paragraph 2 of the Dutch Civil Code).

The liability of supervisory directors is derived from the liability of directors; without liability of a director, no liability of a supervisory director either. As with the liability of directors, a distinction can be made between internal liability, liability in case of bankruptcy and liability towards third parties.

internal liability

The collective responsibility and joint and several liability of article 2:9 of the Dutch Civil Code also applies to supervisory directors (article 2:149 and 2:259 of the Dutch Civil Code). The standard is that a supervisory director must be able to be blamed 'seriously'. Because supervisory directors have a supervisory task, application of this standard leads to a higher threshold for liability (than for directors). 

In the event of improper performance of duties (article 2:9 of the Dutch Civil Code), supervisory board members are collectively responsible and jointly and severally liable to the company. An individual supervisory board member can excuse himself by proving that he is not to blame for the improper performance of duties and that he has not been negligent in taking measures to avert the consequences thereof.

liability in case of bankruptcy

Via the passerelle clauses of article 2:149 and 2:259 of the Dutch Civil Code, supervisory directors (in the event of bankruptcy) can also be held liable by a trustee for apparent improper performance of duties in the three years preceding the bankruptcy if it is likely that improper performance of duties was an important cause of the bankruptcy.

Paragraph 2 of article 2:248 of the Dutch Civil Code stipulates that the board fulfilled its duties improperly, if the management board did not fulfil its obligations to keep proper records or to file the annual accounts on time. These rules do not apply to supervisory directors.The fulfilment of these obligations should, however, be monitored by the supervisory board members.

liability towards third parties

Finally, a liability of a supervisory director can also be based on tort (article 6:162 of the Dutch Civil Code), if an individual supervisory director has personally acted in a seriously culpable manner. Joint and several liability for the collective and individual indemnification are therefore not relevant.

The supervisory role of a supervisory director therefore requires an active attitude on his part. For example, a supervisory director is required to actively request information from the management board and, where necessary, take drastic measures, such as suspending a director. Failure to do so may lead to personal liability on the part of the supervisory director.

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