On July 1 2016 an Act regarding director disqualification entered into force in the Netherlands. The Act was included in the Dutch Bankruptcy Act. The new rules, together with an act revising the law on criminal sanctions for bankruptcy fraud, are aimed at combatting bankruptcy fraud. The disqualification rules try to prevent at an earlier stage fraudulent directors (‘bestuurders’) from continuing their business by simply setting up a new company. Both an insolvency practitioner (‘IP’) (appointed by the court over the insolvent entity) and the public prosecutor may request a civil ban on directorship. They can do so if during or in the three years preceding the insolvency of a legal person: (i) the director is liable for improper management as referred to in Article 2:138 and 2:248 Dutch Civil Code, (ii) s/he has deliberately performed legal acts or has permitted or made possible these acts, whereby creditors are significantly disadvantaged and which acts have been nullified by the court in accordance with Articles 42 or 47 of the Bankruptcy Act (‘faillissementspauliana’), (iii) the director has seriously failed in the fulfillment of his or her duties to inform or to cooperate with the IP, (iv) s/he has at least twice previously been involved in an insolvency of a legal person and can be personally blamed for this, and (v) whether the director has been fined because s/he has violated applicable tax legislation and has been found to be liable. The Act descibes in quite some detail the persons to which the new rules aply, the procedure to be followed and the consequnces of any decision by the court with regard to the management of the company. The court may impose on a director (including a ‘shadow director’ or an actual company policymaker) a ban for a maximum period of five years. If the judgment has become legally binding, the respective director will be deleted from the Commercial Register and the ban will be registered for the duration for which it is given. In this way the disqualification will become public. The result is that the director during the period of the ban may not execise his duties as a director or supervisory director at all.
Incidentally, a director or supervisory director may also relieve himself or herself by showing – generally - that s/he has not been negligent in taking measures. With the new rules, the Netherlands is one of the last EU Member States to include director disqualification rules. From a recent study, coordinated by Leeds University, it follows that only Greece and Italy do not have rules on the topic, whilst it also reveals that there are quite some differences in, for example, the acts that can lead to disqualification, the persons subject to it, the registration of a ban and the length of such a ban (in France, Spain and the UK up to fifteen years, in Bulgaria for an indefinite time!, see p. 65ff).
Now, what would happen if a director, disqualified in the Netherlands, were to seek a similar position in, say, Germany or Sweden? This is certainly a possibility under the on-going globalisation of companies and under the freedom of persons to move to another Member State. The Leeds study (p. 75) concludes that in the EU there are ‘… only a few, if any, checks on whether a person who represents himself or herself for appointment as a director in one Member State is disqualified in another.’ Regarding the registration in the Netherlands of foreign legal entities, this will be rejected by the Chamber of Commerce if it appears that such a legal entity is controlled by a person who in the Netherlands is subject to a disqualification order. A Dutch disqualification order, however, does not stand in the way of someone becoming a director of a legal person established elsewhere in the EU. The EU does not have a system of mutual recognition of these qualification orders, unless it can be argued that the judgment of the court can be regarded as an order ‘… which derives directly from the insolvency proceedings and is closely linked with them’. However, under the new Dutch rules, there seems to be no duty for the IP to obtain recognition of such a judgement, let alone that in practice the disqualified director will not inform an IP about his whereabouts. If, under certain circumstances, the order would indeed be eligible for recognition, the next phase is execution in the Member State concerned. There is quite some uncertainly regarding this latter topic, as well as regarding ‘cross-border issues in the area of director’s liability and disqualifications’. Article 90(3) of the EU Insolvency Regulation (recast) (Regulation No. 2015/848 of May 20, 2015, OJ. L 141) provides that the European Commission shall submit a study to the Council, the European Parliament and the European and Social Committee no later than 1 January 2016. Now, more than nine months after this date, there is still the sound of silence.