Consiglio di amministrazione di una società olandese: doveri, poteri e responsabilità

The board of directors (bestuur) of a Dutch company manages the company and represents it towards third parties, under Articles 2:129 and 2:130 of the Dutch Civil Code (BW) for an nv and Articles 2:239 and 2:240 BW for a bv. Each director must act in the interest of the company and its business, not in the interest of the shareholder who appointed them, and can be held personally liable if a serious reproach (ernstig verwijt) can be made against them.

This page explains what the board of a Dutch bv (private limited company) or nv (public limited company) does, how one-tier and two-tier boards work, which decisions belong to the shareholders, and where personal liability arises. The rules are those of Book 2 BW; the fiduciary concepts of American or English company law do not apply here.

What does the board of a Dutch company do?

The board runs the company: every power that the law or the articles of association do not give to another body belongs to the board. Under Article 2:239 BW (bv) that covers strategy, day-to-day operations, the accounts and the representation of the company.

Under Article 2:240 BW the board represents the company, and unless the articles provide otherwise each individual director may do so alone. The articles can require two signatures or limit representation to certain directors. Such a restriction must be in the articles and registered with the trade register of the Chamber of Commerce (KVK); a limit agreed only in a board regulation or shareholders’ agreement generally does not bind a third party acting in good faith.

Is there a split between board and management?

No. In a standard Dutch bv the board is the management: the directors both set the course and run the business. Supervision is a separate task for a supervisory board or for non-executive directors.

Under Article 2:9 BW every director carries responsibility for the general course of affairs. A division of tasks within the board is allowed and counts when an individual director defends themselves, but each director must keep informed about matters assigned to colleagues and intervene where necessary.

One-tier or two-tier board: what is the difference?

In a two-tier structure the management board runs the company and a separate supervisory board (raad van commissarissen) supervises and advises it. In a one-tier structure executive and non-executive directors sit on one board, as allowed by Article 2:239a BW (bv) and Article 2:129a BW (nv).

In a one-tier board the supervisory task cannot be taken away from the non-executive directors. The chairmanship, nominations for the appointment of directors and the setting of executive pay cannot be assigned to an executive director, and non-executive directors must be natural persons. Neither model is better by definition; what matters is that supervision is actually exercised, as our article on the ruolo dei consigli di sorveglianza in una situazione di crisi spettacoli.

Which standard must a director meet?

Article 2:9 BW requires every director to perform their task properly. A director is jointly and severally liable to the company for mismanagement unless no serious reproach can be made against them, taking into account the tasks assigned to others, and they were not negligent in taking measures to avert the consequences.

The courts weigh all circumstances: the nature of the business, the risks, the division of tasks, the information available and how a reasonably competent director would have acted. Two consequences follow. Not knowing what a colleague did is not automatically a defence. And a director who disagrees must do more than object privately: record the dissent in the minutes, escalate to the supervisory board or the general meeting, and resign where the matter is serious enough.

Cosa succede se un direttore ha un conflitto di interessi?

The director does not take part in the deliberation and decision. Under Article 2:239(6) BW (bv) and Article 2:129(6) BW (nv), a director with a direct or indirect personal interest that conflicts with the interest of the company and its business must abstain.

If no board resolution can then be taken, the supervisory board decides; without a supervisory board, the general meeting decides, unless the articles provide otherwise. The rule does not forbid the transaction, but a resolution taken in breach of it can be challenged. Minute the conflict, the abstention and the body that decided. Our overview of the Dutch quadro di governance aziendale shows how these safeguards fit together.

Who appoints and dismisses the directors?

In a bv the general meeting appoints the directors, after the first directors named in the deed of incorporation (Article 2:242 BW). The articles may give the right to appoint at least one director to the holders of a particular class of shares, which is how investors secure a board seat.

Under Article 2:244 BW the body that appoints may suspend and dismiss a director at any time. No cause is required for the corporate dismissal itself. If the company has a works council, it must be given the opportunity to advise on the appointment or dismissal of a director of the enterprise, at a time when its advice can still influence the decision (Article 30 of the Works Councils Act, WOR).

What happens to the employment contract of a dismissed director?

A statutory director who is also employed loses the employment contract as a rule together with the corporate position. Article 7:671(1)(e) BW excludes such a director from the requirement of UWV permission or a court decision before dismissal.

A reasonable ground for dismissal is still required, and the director keeps the right to a transition payment (transitievergoeding) and, if the employer acted seriously culpably, fair compensation from the subdistrict court (kantonrechter). The director must be heard before the general meeting decides. Our article on the licenziamento di un amministratore di società explains the procedure; the terms owners usually agree on are set out in our note on l'accordo tra gli azionisti.

What does the board decide and what do the shareholders decide?

The general meeting decides on the matters the law or the articles reserve to it; everything else belongs to the board. Reserved matters include amending the articles, issuing shares, appointing and dismissing directors, adopting the annual accounts, distributions, and resolving on a merger, demerger, conversion or dissolution.

Under Article 2:239(3) BW the articles may make board resolutions subject to the approval of another body of the company. A resolution taken without an approval required by the articles is defective under company law. Breach of an approval right that exists only in a shareholders’ agreement leads to a contractual claim between the parties. Directors should know which of the two applies.

Must the board follow instructions from shareholders?

Only if the articles provide for instructions, and only if the instruction does not conflict with the interest of the company and its business (Article 2:239(4) BW). A director who carries out a harmful instruction cannot hide behind it. This is a recurring issue when a Dutch subsidiary is directed from a foreign parent.

Why are distributions a director’s risk?

A shareholders’ resolution to pay a distribution has no effect until the board approves it. Under Article 2:216(2) BW the board must refuse if it knows or should reasonably foresee that the company will not be able to continue paying its due debts after the distribution.

If the company cannot keep paying its due debts after the payment, directors who knew or should have foreseen this are jointly and severally liable for the shortfall, with statutory interest from the day of the distribution (Article 2:216(3) BW). A written liquidity test, covering at least the next twelve months as is common practice, is the cheapest protection a board can have.

Annual accounts: which deadlines apply?

The board of a bv prepares the annual accounts within five months of the end of the financial year; the general meeting may extend this by up to five months on special grounds (Article 2:210(1) BW). The accounts must be filed with the trade register within eight days of adoption and in any event no later than twelve months after the end of the financial year (Article 2:394 BW).

A trap for small companies: if all shareholders are also directors, signature of the accounts by all directors and supervisory directors also counts as adoption, provided the other persons entitled to attend meetings have been able to see the accounts and have agreed to this method (Article 2:210(5) BW). The eight-day filing period then runs from signature. Late filing is an economic offence and, in a bankruptcy, triggers the presumption described below.

Quando un amministratore è personalmente responsabile?

Personal liability runs along three separate routes: towards the company, towards the bankruptcy estate and towards third parties. Each route has its own test.

Responsabilità nei confronti dell'azienda

The company, or a trustee in bankruptcy acting for it, can claim from a director for improper performance under Article 2:9 BW. The serious-reproach standard applies. This route is used for self-dealing, reckless commitments and a persistent failure to supervise.

Responsabilità in caso di fallimento

Under Article 2:248 BW each director is jointly and severally liable for the deficit in the estate if the board has manifestly performed its task improperly and this is plausibly an important cause of the bankruptcy. Only conduct in the three years before the bankruptcy counts.

If the board did not keep proper accounts (Article 2:10 BW) or did not file the annual accounts on time (Article 2:394 BW), improper performance is established, and it is presumed that this was an important cause of the bankruptcy. An unimportant delay is disregarded, but the director has to show that it was unimportant. That is why the administration and the filing calendar are two items every director should check personally.

Liability towards creditors and other third parties

A creditor can sue a director in tort (Article 6:162 BW) if the director personally acted wrongfully. Typical examples are committing the company to an obligation while knowing it cannot pay and offers no recourse, or making sure an existing creditor is not paid by moving assets elsewhere. A sufficiently serious personal reproach is required; the company defaulting is not enough.

A holding company as director does not shield the person behind it: under Article 2:11 BW the liability of a legal entity acting as director also rests jointly and severally on its own directors. Our article on the responsabilità degli amministratori analizza questi percorsi in modo più dettagliato.

Do an indemnity and D&O insurance protect you?

Partly. An indemnity from the company is only worth what the company is worth, and in a bankruptcy that is often very little. A directors’ and officers’ (D&O) policy excludes intent and often deliberate breach; check the cover for group companies, territories and the run-off period after you leave the board when you join, not when a claim arrives.

Which compliance duties sit with the board?

The board does not operate controls itself, but it must make sure adequate controls exist and work. Afterwards, the court judges this on the documents: what the board asked for, what it was told and what it did.

Under the General Data Protection Regulation (GDPR) the company must be able to demonstrate compliance, and the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) can impose fines. The Cyberbeveiligingswet, which implements the EU NIS2 Directive, has been in force since 15 August 2026. Entities within its scope must register, take appropriate risk-management measures and report significant incidents in stages, starting with an early warning within 24 hours. The management body itself must approve and oversee these measures, so the first step is a documented assessment of whether the company falls within scope.

What rights does the works council have?

A company that normally employs at least 50 people must set up a works council (ondernemingsraad) under Article 2 WOR. The works council has a right to advise on major decisions such as a transfer of control, a reorganisation, a major investment or significant credit (Article 25 WOR), and a right of consent on personnel schemes such as working hours, pay systems and health and safety rules (Article 27 WOR).

If the board departs from the works council’s advice, the works council can appeal to the Enterprise Chamber of the Amsterdam Court of Appeal (Article 26 WOR), which can order the decision to be withdrawn and its consequences undone. Build the consultation into the timetable of a transaction from the start.

When does the large company regime apply?

The large company regime (structuurregime) applies to companies that meet statutory criteria on capital and reserves, a works council and the number of employees in the Netherlands for a continuous period. Such a company must have a supervisory board with enhanced powers, including the appointment and dismissal of the management board in the full regime. The capital threshold is set by decree and changes from time to time, and exemptions and a mitigated regime exist for international groups, so check the current figures before concluding that the regime does or does not apply.

Which governance and reporting rules apply?

The Dutch Corporate Governance Code, last revised in 2022, applies to listed companies on a comply-or-explain basis. Unlisted companies are not bound by it, but investors and supervisory boards often use it as a benchmark.

Since 1 January 2022 listed companies must meet a gender quota for their supervisory boards, and large companies must set targets for the gender balance of the board, the supervisory board and senior management and report on them. For EU sustainability reporting (CSRD), check whether the Dutch implementing legislation is in force for your company before stating in the annual report that you report under it; the European rules have recently been amended.

Does the same apply to foundations and associations?

Largely, yes. Since the Act on management and supervision of legal entities (Wet bestuur en toezicht rechtspersonen) the same duty of proper performance (Article 2:9 BW), the conflict-of-interest rule and the option of a one-tier board also apply to a foundation (stichting) and an association (vereniging).

A foundation has no shareholders, so its articles must contain a workable mechanism for appointing and dismissing directors. Where a foundation holds shares, as a trust office foundation (stichting administratiekantoor) does, its board votes in line with the foundation’s object, not the wishes of the certificate holders. Family structures of this kind are discussed in our note on consulenza family office.

How do you document board decisions?

Book 2 BW says little about board procedure and leaves it to the articles and a board regulation. In a liability case the file is the evidence, so four habits matter. Resolutions outside a meeting are allowed where the articles permit it.

• Circulate the papers before the meeting, so each director can show they could form a view.
• Minute the substance, not only the outcome: alternatives, risks and the information relied on.
• Record conflicts, abstentions and which body decided instead.
• Record dissent in terms; a minute saying “decided unanimously” will be read as exactly that years later.

Che cosa dovresti verificare in qualità di regista?

Review these points at least once a year; they cover most liability claims we see.

• The articles are current and any restriction on representation is registered with the KVK.
• The administration meets Article 2:10 BW and the annual accounts are filed within the Article 2:394 BW deadlines.
• Every distribution is preceded by a written test under Article 2:216(2) BW.
• Conflicts of interest are disclosed and abstentions are minuted.
• Works council advice is built into the timetable of any reorganisation or acquisition.
• Your D&O policy and indemnity are current, including run-off cover.

Che cosa dovresti verificare in qualità di azionista?

Shareholders control the board mainly through the articles and the general meeting, so check that those instruments say what you think they say.

• Which board resolutions need your approval under the articles, not only under the shareholders’ agreement (Article 2:239(3) BW).
• Whether the articles allow you to give the board instructions (Article 2:239(4) BW).
• Whether your class of shares carries a right to appoint a director (Article 2:242 BW).
• Whether the management or employment agreement with each director fixes notice periods and post-contractual restrictions.
• Whether the annual accounts were adopted and filed within twelve months of the year end.

What can we do for you with your company’s board?

studio legale commerciale advises boards, supervisory boards, shareholders and individual directors of Dutch companies, foundations and associations.

• We review your articles of association and board regulation and draft amendments for the notary.
• We prepare the conflict-of-interest procedure and the minutes for a related-party transaction.
• We carry out and document the distribution test under Article 2:216 BW with your financial team.
• We guide the appointment or dismissal of a statutory director, including the works council’s advice and the employment-law side.
• We assess a liability claim against you under Article 2:9, 2:248 or 6:162 BW and draft your response.
• We review your D&O policy and indemnity agreement for gaps.

Sintesi

• The board manages and represents a Dutch bv or nv (Articles 2:239-2:240 and 2:129-2:130 BW) and must serve the interest of the company and its business.
• All directors share responsibility; a director is liable only if a serious reproach can be made (Article 2:9 BW).
• A conflicted director must abstain; the supervisory board or general meeting then decides.
• Late filing of the annual accounts or poor administration creates a presumption of liability in bankruptcy (Article 2:248 BW).
• The works council must be consulted on major decisions and on the appointment or dismissal of a director (Articles 25 and 30 WOR).

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