Delegation of powers: protection for the director

First, the person taking on the delegated task answers for their own wrongful conduct. Second, a delegation is not an agreement exonerating criminal liability: it does not make the delegate liable for offences that the delegating director committed themselves.

Third, a company that in no way personally contributed to the offence can shift its liability, but only where it shows that it delegated its powers to a person with the required competence, authority and means. Fourth, that transfer is only permitted where the legislator or the regulatory authority allows it, even if only implicitly, and the burden of proof rests on the party that delegates.

Where the law imposes a duty personally on a specific director, liability does not disappear through a delegation. The Court applied that in 2023 to site management, which is personally answerable for compliance with workplace welfare rules, regardless of who was assigned the day-to-day execution.

Delegation presupposes a prior analysis of the criminal risks tied to your business operations. Once those risks are identified, we draw up a meaningful delegation plan with you. That certainly applies to preventing negligence offences, but also, especially on a preventive level, to intentional offences. We take account of the specific sector your company operates in.

For most companies, delegation today is more of an obligation than an option: it is a duty of care within the framework of sound corporate governance. Delegation means that responsibilities are clearly defined, and it does not serve as an umbrella over the head of the criminally liable legal entity or the company director.

Director liability also carries its own cap, from 125,000 to 12 million euro depending on your company’s turnover and balance sheet total. That cap falls away entirely, however, in cases of gross fault, fraudulent intent, or a minor fault that occurs habitually rather than by accident: precisely the situations a fraud case usually turns out to involve.

A delegation plan works best alongside a corporate fraud policy that sets out the wider code of conduct, and an aml audit where your company is subject to anti-money laundering legislation. The manager of your whistleblowing procedure ideally also receives their own authority through a documented delegation. We wrote earlier about the new Book 6 of the Civil Code and the wider scope to address directors directly. Back to our page for company directors.

Not automatically. The delegation only works where the company itself did not contribute to the offence and shows that it transferred its powers to a person with the required competence, authority and means. The Court of Cassation also requires that the legislator permits the transfer, if only implicitly, and the burden of proof rests on the party that delegates.

Yes. A delegation does not remove criminal liability for duties the law imposes personally on the delegating director. The Court of Cassation applied that in 2023 to site management, which is personally answerable for compliance with workplace welfare rules, regardless of who was assigned the execution.

Partly. A director is only liable for decisions that fall manifestly outside the margin within which normally prudent directors may reasonably differ, and liability is capped according to turnover and balance sheet total. That cap falls away entirely, however, in cases of gross fault or fraudulent intent, which a fraud case often precisely involves. We gladly check that cap against your own figures.