Business owners, take note! Selective payments can lead to liability

Corporate Law

30 January 2025

Business owners, take note! Selective payments can lead to liability

Stelt u zich eens voor: u werkt al jaren met dezelfde zelfstandige. Hij stuurt facturen, factureert btw en heeft een eigen kvk-nummer. Toch krijgt u in 2026 ineens vragen van de Belastingdienst over de aard van uw samenwerking. Hoe heeft het zo ver kunnen komen?

As a business owner, you naturally hope to never end up in a situation of bankruptcy or forced liquidation. But should it happen anyway, it is crucial to know exactly what your responsibilities are as a director. A recent ruling by the Amsterdam Court of Appeal provides clear insights into director liability for selective payments during the liquidation of a company. In this blog we discuss the main points of this ruling and explain what this means for you as a business owner.

What was at issue?

The conflict began when the Belgian bank Degroof Petercam had granted a credit facility of 2 million euros to the Dutch investment institution FPA. When this credit was not repaid, and FPA decided to liquidate, a dispute arose. During the winding-up of the company, some creditors were paid, while Bank Degroof — also a creditor — was completely ignored. And what turned out to be the case? The payments made were mainly in favour of parties affiliated with the business owner (indirect director of FPA). The bank subsequently went to court and held the business owner personally liable.

How did the Court of Appeal rule?

The district court had earlier ruled that the director could not be personally blamed for anything. But the Amsterdam Court of Appeal overturned that ruling. The Court of Appeal found that the business owner (indirect director) had acted with serious personal culpability by knowingly engaging in the selective payment of creditors. The Court of Appeal’s ruling makes clear that directors can be held personally liable if they act with serious culpability. In this case, the director’s conduct was so damaging to Bank Degroof that the Court of Appeal decided to hold him personally liable.

Selective payment and equal treatment of creditors?

Selective payment means that certain creditors are paid, while others — often without good reason — are passed over. This is not inherently prohibited, but in a pressing financial situation or a liquidation, directors have limited room for manoeuvre. Directors must treat creditors as equally as possible, and may not make payments that serve exclusively their own interests.

In this case, the director used the settlement amount of 4.3 million euros that the company had received to pay creditors affiliated with himself. Bank Degroof was kept out of the picture and was not informed about the settlement of the debts.

During a liquidation, a director may not simply choose which creditors get paid. If there are insufficient resources to pay everyone, directors must act transparently and fairly towards all parties involved.

Open and fair conduct by directors during liquidation.

It is the director’s duty to communicate openly and honestly with creditors. In this case, the indirect director did not keep Bank Degroof informed of important developments, such as the settlement agreement and how the proceeds were spent.

When a company decides to liquidate, the director’s ability to make independent financial decisions is limited. The interests of all creditors must be central, not the director’s personal interest.

Conclusion

This ruling by the Amsterdam Court of Appeal shows that directors must act carefully, and must therefore communicate transparently and fairly during the liquidation of a company. Equal treatment of creditors is also essential to prevent legal problems. The interest of the company and its creditors must always come first — personal interests should play no role.

Do you have questions about director liability or liquidation? Feel free to contact us for professional advice. This will help you avoid running into problems as a director. Contact us directly via info@thelegalcompany.nl or call 020 345 0152.

This article was published on 30 January 2025.

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Nothing changes as much as legislation and regulations. Please note that our blogs may no longer align with current legislation and regulations and may therefore be outdated. If you have questions or an issue relating to this blog, or wish to obtain legal assistance, please contact us.

De afgelopen jaren stonden in het teken van de Wet VBAR, het wetsvoorstel dat een einde moest maken aan onduidelijkheid over de zzp’er. Het kabinet heeft delen van dat voorstel inmiddels geschrapt. Op het eerste gezicht is dat goed nieuws: minder regels, minder administratieve last. Maar in de praktijk blijven dezelfde toetsen overeind.

“De inhoud van de samenwerking is leidend, niet wat er op papier staat.”

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Voor uw praktijk betekent dit drie dingen. Een: leg de samenwerking duidelijk vast, met aandacht voor de inhoud. Twee: voorkom dat een zzp’er feitelijk werkt als werknemer. Drie: wees voorbereid op een controle, en weet hoe u de relatie kunt herzien als dat moet.

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