Law: Book 2 DCC

Article 2:248 DCC: director liability in the bankruptcy of a Dutch BV

If a Dutch BV goes bankrupt, every director is jointly and severally liable for the shortfall if the board manifestly performed its duties improperly and this is an important cause of the bankruptcy. If the duty to keep records or the duty to file has been breached, the improper performance of duties is established and the cause is presumed (paragraph 2). The trustee looks back three years.

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The short answer

Updated 30 October 2026

Key facts

Statutory text	Art. 2:248(1)–(10) DCC, text in force from 1 July 2026; last amended on 1 July 2021 (Management and Supervision of Legal Entities Act)
Equivalent rules	NV: art. 2:138 DCC. Foundation and association: art. 2:300a and art. 2:50a DCC, with the presumption only for a foundation subject to corporate income tax, an association with notarial articles that is subject to corporate income tax, or a statutory financial statement
Period	Improper management in the three years before the bankruptcy (paragraph 6)
Case law	HR 12 July 2013, ECLI:NL:HR:2013:BZ7189: standard for the minor default

Paragraph 1: manifestly improper management as an important cause

1. In the event of the bankruptcy of the company, every director is jointly and severally liable to the estate for the amount of the debts to the extent that these cannot be paid by liquidating the other assets, if the board manifestly performed its duties improperly and it is plausible that this is an important cause of the bankruptcy.
art. 2:248(1) DCC (text in force from 1 July 2026) (unofficial translation)

The trustee brings the claim, for all creditors together. It concerns the shortfall: what the creditors do not get back after all assets have been sold. Two things must be established. The board manifestly performed its duties improperly, that is, in a way that no reasonably thinking board would choose. And that management is an important cause of the bankruptcy, not necessarily the only one. Without the help of paragraph 2, the trustee must prove the manifestly improper management and make it plausible that it was an important cause.

Paragraph 2: the presumption for records and filing

2. If the board has not complied with its obligations under articles 10 or 394, it has performed its duties improperly and it is presumed that improper performance of duties is an important cause of the bankruptcy. The same applies if the company is a fully liable partner of a general partnership or limited partnership and the obligations under article 15i of Book 3 have not been complied with. A minor default is not taken into account.
art. 2:248(2) DCC (text in force from 1 July 2026) (unofficial translation)

Paragraph 2 reverses the burden of proof for two duties: records that comply with art. 2:10 DCC and timely disclosure of the annual accounts under art. 2:394 DCC. If either is breached, the improper performance of duties is established; there is no evidence to the contrary. The cause is presumed. The director can rebut that presumption by making it plausible that something else caused the bankruptcy, for example the loss of the largest customer.

When is a default minor? In the case of 12 July 2013, annual accounts were filed 28 days late. The Supreme Court of the Netherlands (Hoge Raad) held that the default is minor only if in the circumstances of the case it does not point to improper management, especially if there is an acceptable explanation for it. The longer the overrun lasts, the heavier the requirements, and the director must put forward and prove that explanation. That the BV had little activity or few creditors does not count. That the cause lay within the BV's sphere of risk, such as a misunderstanding about who would file, does not rule out an acceptable explanation (ECLI:NL:HR:2013:BZ7189). In that case the Supreme Court quashed the court of appeal's judgment, which had held the default not to be minor. Earlier, on 20 October 2006 (ECLI:NL:HR:2006:AY7916), the Supreme Court had decided that paragraph 2 covers all duties of art. 2:394, not just the deadline. The absence of the auditor's report is not always minor, but it can be under circumstances if it is established that the filed figures were correct.

Paragraphs 3 to 5: defence, reduction and the amount

3. A director is not liable if he proves that the improper performance of duties by the board is not attributable to him and that he was not negligent in taking measures to avert the consequences.
4. The court may reduce the amount for which the directors are liable if it considers this excessive, given the nature and seriousness of the improper performance of duties by the board, the other causes of the bankruptcy and the way in which it was handled. The court may also reduce the amount of the liability of an individual director if it considers this excessive, given the time during which that director held office in the period in which the improper performance of duties took place.
5. If the size of the shortfall is not yet known, the court may, with or without application of the fourth paragraph, order that a statement be drawn up of the shortfall for payment of which it orders the directors, in accordance with the provisions of the sixth title of the second book of the Code of Civil Procedure.
art. 2:248(3)–(5) DCC (text in force from 1 July 2026) (unofficial translation)

The board is collectively responsible, but an individual director can free himself (paragraph 3). That requires two things: the reproach does not apply to him, and he did what he could to limit the consequences. Watching in silence is not enough. The court may reduce the amount, for the whole board or for one director who held office only briefly (paragraph 4). If the shortfall is not yet known, a separate procedure follows to determine it (paragraph 5).

Paragraphs 6 to 10: three years back, de facto policymakers and the trustee

6. The claim can only be brought on the basis of improper performance of duties in the period of three years preceding the bankruptcy. A discharge granted to the director does not prevent the claim from being brought. The director is not entitled to set off against a claim on the company.
7. For the application of this article, a person who determined or co-determined the policy of the company is equated with a director, as if he were a director. The claim cannot be brought against an administrator appointed by the court or a director appointed by the Enterprise Chamber of the Amsterdam Court of Appeal as referred to in article 356(c).
8. This article does not affect the trustee's power to bring a claim on the basis of the agreement with the director or on the basis of article 9.
9. If a director is liable under this article and is unable to pay his debt in that respect, the trustee may, for the benefit of the estate, annul by an extrajudicial declaration the legal acts performed by that director without obligation by which the possibility of recourse against him was reduced, if it is plausible that these were performed wholly or almost wholly with the intention of reducing that recourse. Article 45(4) and (5) of Book 3 applies mutatis mutandis.
10. Article 138(10) applies.
art. 2:248(6)–(10) DCC (text in force from 1 July 2026) (unofficial translation)

Three years. Only improper management in the three years before the declaration of bankruptcy counts. A filing that was late in that period falls within it; a default five years earlier does not.
Discharge does not help. A discharge by the general meeting or adoption by signing (art. 2:210(5) DCC) does not stop the trustee.
De facto policymaker. Anyone who determines the policy without being appointed, for example a former director who still approves all purchases, is liable as a director.
Other routes. The trustee can also act on the basis of art. 2:9 DCC or the agreement with the director (paragraph 8), annul legal acts without obligation, such as gifts, by which a director frustrates recourse against himself (paragraph 9), and ask the minister for an advance for the proceedings via art. 2:138(10) DCC.

What each size class must file to avoid paragraph 2

Whether art. 2:394 has been complied with depends on what the class must disclose. If a mandatory component is missing, that too can be a breach. The table shows the classes with their thresholds since financial year 2024.

Class	What must be on file with the KVK	Note
Micro (balance sheet total ≤ € 450.000, net turnover ≤ € 900.000, < 10 employees)	The abbreviated balance sheet with the disclosures below it (art. 2:395a(8) DCC)	A dormant BV without turnover also files
Small (balance sheet total ≤ € 7,5 mln, net turnover ≤ € 15 mln, < 50 employees)	Balance sheet and notes (art. 2:396(8) DCC)	The profit and loss account need not be included
Medium-sized (balance sheet total ≤ € 25 mln, net turnover ≤ € 50 mln, < 250 employees)	Publication documents with auditor's report; management report and other information too, unless they are available for inspection at the office and this is stated in the Business Register (art. 2:394(4) DCC)	Without an auditor's report the filing is incomplete
Large (balance sheet total > € 25 mln, net turnover > € 50 mln, ≥ 250 employees)	The full annual accounts with auditor's report; for the management report and other information the same choice as for medium-sized	As medium-sized

A subsidiary that applies art. 2:403 DCC correctly does not file its own annual accounts. If one condition is missing, the exemption does not apply and not filing is still a breach of art. 2:394.

Which filings count in 2025, 2026 and 2027

Article 2:248 has been unchanged since 1 July 2021. With a financial year equal to the calendar year, the 2023 annual accounts had to be public by 31 December 2024 at the latest, those for 2024 by 31 December 2025 and those for 2025 by 31 December 2026 (art. 2:394(3) DCC). If a BV goes bankrupt in 2027, the trustee assesses the filings that were late or still missing in the three years before. Annual accounts for 2025 filed after 31 December 2026 count in any bankruptcy in the three years after that default.

Case: a construction company, late annual accounts and a bankrupt client

Bouwbedrijf Ruiters BV is declared bankrupt on 1 September 2026. The shortfall in the estate is € 1.400.000. The 2023 annual accounts should have been public by 31 December 2024 at the latest; they were filed on 6 March 2025, 65 days late. The books were in order.

Within the period? Yes. The default ran from 1 January to 6 March 2025, within the three years before 1 September 2026 (paragraph 6).
Minor? Erik, director since 2019, points to the accountant who delivered the documents only in February. Whether such a delay lies within the BV's sphere of risk is, according to the Supreme Court, not decisive; the question is whether it is an acceptable explanation. At 65 days heavier requirements apply than at 28, and Erik must prove his explanation. He cannot show why he did not intervene himself after January. The improper performance of duties is then established.
Cause. Erik shows that a client went bankrupt in March 2026 with € 900.000 in unpaid instalments, almost two thirds of the shortfall. If he succeeds in making it plausible that this was the cause and not the board, the presumption lapses. The trustee must then show other manifestly improper management under paragraph 1.
Other persons. Sanne became a director on 1 March 2025 and arranged the filing within a week. She can rely on paragraph 3. Father Gerard, no longer a director, approved all large purchases until the bankruptcy: as a de facto policymaker he can be held liable just like Erik (paragraph 7).

Suppose the court finds the presumption not rebutted. Then Erik and Gerard are jointly and severally liable for € 1.400.000. The court may reduce that amount, for example because the client's bankruptcy played a part (paragraph 4). The discharge the meeting gave Erik in June 2025 changes nothing (paragraph 6).

Misunderstandings about director liability in bankruptcy

“A few weeks late is minor.” Not automatically: in the 2013 case, 28 days and little activity did not make the default minor; what was decisive was whether there was an acceptable explanation.
“The accountant was late, so it does not count.” A delay or misunderstanding at the accountant can be an acceptable explanation, but only if the director proves it, and the longer the overrun, the less likely that is to succeed.
“The BV hardly did anything any more.” Little activity or few creditors does not make a default minor.
“I received a discharge.” A discharge is no obstacle (paragraph 6).
“I resigned.” Anyone who was a director in the period of the improper management can be held liable, within the three years of paragraph 6.

Where the duties in paragraph 2 come from

Article 2:10 DCC: the duty to keep records.
Article 2:394 DCC: the duty to file and the deadlines.
Article 2:210 DCC: preparation and adoption; article 2:216 DCC: liability after a distribution.
What happens if I file late?, late filing and negative equity and bankruptcy.
RJ 170 Going concern; in English: late filing and director liability.

How it works in Jaarrekening.io

Jaarrekening.io calculates for each financial year when the annual accounts must be prepared, adopted and filed, and compiles a publication version with exactly what your size class must disclose. You file yourself or through your accountant; the app sends nothing to the KVK. Afterwards you record the receipt reference in the file, so that you can later show when the documents were on file with the KVK.

Sources

Legal notice: this information is general in nature and does not replace tax or legal advice or an audit by an accountant. The correctness and completeness of the annual accounts remain the responsibility of the board.

Frequently asked questions

When is a director liable in the bankruptcy of a Dutch BV?

When the board manifestly performed its duties improperly and it is plausible that this is an important cause of the bankruptcy (art. 2:248(1) DCC). Every director is then jointly and severally liable to the insolvency estate for the shortfall. The trustee brings the claim, and only improper management in the three years before the bankruptcy counts (para. 6).

What is the consequence of annual accounts filed late in a bankruptcy?

It is then established that the board performed its duties improperly, and it is presumed that this is an important cause of the bankruptcy (art. 2:248(2) DCC). The director can rebut the presumption about the cause by showing that something else caused the bankruptcy. If the default is minor, it does not count.

When is late filing a minor default?

According to the Supreme Court of the Netherlands (Hoge Raad, 12 July 2013, ECLI:NL:HR:2013:BZ7189), when in the circumstances of the case the default does not point to improper management, in particular when there is an acceptable explanation for it. The longer the overrun, the heavier the requirements, and the director must put forward and prove the explanation. Little activity or few creditors is no reason. That the cause lay within the BV's sphere of risk, for example a misunderstanding with the accountant, does not rule out an acceptable explanation.

Does discharge protect a director against liability in bankruptcy?

No. Art. 2:248(6) DCC provides that a discharge granted to the director does not prevent the claim from being brought. This also applies to the discharge resulting from adoption by signing when all shareholders are directors (art. 2:210(5) DCC).

Can a director of a foundation or association be liable in bankruptcy?

Through art. 2:300a and 2:50a DCC, the rules of art. 2:138 DCC, the NV equivalent, also apply to directors of foundations and associations. The presumption for inadequate records or late filing applies there only if the foundation is subject to corporate income tax, the association has notarial articles and is subject to corporate income tax, or the legal entity is legally required to prepare a financial statement equal or equivalent to annual accounts.

What happens if I file late? →Late filing →Article 2:10 DCC →Article 2:394 DCC →Negative equity and bankruptcy →Late filing and director liability →

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