Directors’ liability in case of bankruptcy

Directors’ liability in case of bankruptcy

Are you, as a director, held liable by a curator for improper administration? We can help you!

It often happens that a curator holds the director of a legal entity (such as a limited partnership, association or foundation) personally liable for debts that remain unpaid in bankruptcy (the so-called bankruptcy deficit). In case of maladministration, the curator may hold the director liable for the bankruptcy deficit.

Ultimately, such cases often get resolved between the curator and the directors. If a settlement is not possible, it is brought before the court in proceedings in order for the judge to decide whether the director is responsible. In addition to the person who is registered at the Chamber of Commerce as a director at the time of bankruptcy, former directors can also be held liable for acts during their administration. The same applies to persons who are not officially in charge, but who do act as managers.

Whether there has been maladministration always depends on the circumstances. Some cases of maladministration are legally defined: failure to satisfy the filing obligation of the accounting obligation. A curator will always examine whether the accounts of a company are properly maintained (the accounting obligation), and whether the financial statements are filed with the Chamber of Commerce in a timely manner (the filing obligation). If that is not the case, the director is automatically guilty of 'maladministration’ according to the law. Subject to prima facie evidence, the maladministration is suspected to be the cause of the bankruptcy.

Examples of recent questions to our lawyers in the field of a director’s liability in bankruptcy:

  • The bankruptcy curator of my bankrupt limited liability company makes me personally liable because the statements have not been filed in a timely manner. That appears to be the mistake of my accountant. Am I now at risk? If so, can I address my accountant on the matter?
  • A creditor is attempting to hold me, as a director, personally liable for his damages. Can he do that, without the curator’s input?
  • Together with another director of a bankrupt limited liability company I have been held liable to the curator for acts committed by my fellow director. I knew nothing of it. Am I now at risk?
  • The curator makes me, as a director, liable for financial statements that are not timely filed. How can I prove that the bankruptcy of the company is not due to my actions?
  • I am a director of a bankrupt limited liability company. The curator alleges that I have received a management fee before the bankruptcy and demands that amount back. I have paid all salaries neatly; why should I not entitled be to my management fee?
  • The curator alleges that I, as a director of the company, have continued trading for too long while the company was making a loss. Therefore the debts are too high. The curator is trying to make me responsible for those debts. Is that justified?

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