According to article 2:56, paragraph 1 of the CSA, “The [directors] are liable to the legal person for faults committed in the performance of their duties. The same applies to third parties insofar as the fault committed is of an extra-contractual nature. However, they are only liable for decisions, acts or behaviour which manifestly exceed the margin within which normally prudent and diligent directors placed in the same circumstances might reasonably have a different opinion.
This liability applies to every member of an administrative body, as well as to the delegate for day-to-day management, and to any person who has actually held the power of management (called a “de facto director”).
It is, however, possible to escape liability. How can this be done? Firstly, it must be shown that the person did not take part in the wrongdoing (e.g. the director protested against the wrongful decision, or was not present at the meeting for a justified reason). Secondly, the misconduct must be reported to the other members of the administrative body.
There are ceilings on the amounts to be paid in the event of liability.
However, these ceilings are not applicable in cases of habitual (as opposed to accidental) minor negligence, serious negligence, fraudulent or malicious intent, certain fiscal responsibilities (taxes: ONSS, VAT, etc.).
Another way of limiting directors’ liability is to take out specialist insurance in this area.
