Directors’ liability in Belgium

A director is liable to the company for faults committed in the performance of their duties, and to third parties in so far as the fault is non-contractual. Article 2:51 of the Code of Companies and Associations requires every member of a management body to perform the task entrusted to them properly.

The court reviews a board decision only at the margin. Liability arises only for decisions, acts or conduct that fall manifestly outside the range within which normally prudent and diligent directors, placed in the same circumstances, could reasonably disagree (article 2:56 of the Code). The same provision reaches every person who holds or has held actual management power, so the de facto director and the former director as well.

Where the management body forms a collegiate board, liability is joint and several. A director who took no part in the fault is released from it if they reported it to all other members and the report was entered in the minutes. An oral reservation without minutes leaves nothing behind. See also our page for company directors.

Article 2:57 of the Code of Companies and Associations caps it at 125,000 euros, 250,000 euros, 1 million euros, 3 million euros or 12 million euros, depending on the average turnover and the average balance sheet total of the legal entity over the three financial years before the claim. The highest step also applies to every public interest entity, whatever its size.

The cap is not an amount per director. It applies to all liable persons together, and per fact or set of facts, whatever the number of claimants.

In a fraud file the cap usually disappears. Article 2:57, § 3, 1°, removes the limit for a slight fault that occurs habitually rather than accidentally, for gross fault, for fraudulent intent and for intent to harm.

A clause that covers you in advance changes nothing. Article 2:58 forbids the legal entity and its subsidiaries from exonerating or indemnifying a director in advance, and treats any clause to the contrary as unwritten. Our preventive advice for shareholders measures that margin before a conflict starts.

A discharge covers the director only if the annual accounts do not conceal the true position of the company. Article 5:98, second paragraph, adds a second condition in a private limited company: operations contrary to the articles of association or to the Code must have been specifically stated in the notice convening the meeting. In a public limited company those breaches must appear expressly on the agenda of the general meeting (article 7:149).

A discharge that has been granted does not block the minority claim. Shareholders of a private limited company holding at least 10 % of the issued shares on the day of the discharge decision may bring a claim against the management body on behalf of the company (article 5:104). In a public limited company the threshold is 1 % of the votes (article 7:157). Only shareholders who did not approve the discharge, or approved it invalidly, may bring that claim.

The limitation period is five years. Article 2:143, § 1, bars claims against members of the management body five years after the operations, or five years after their discovery where those operations were deliberately concealed. That last part is what counts in a corporate dispute in which figures were kept back.

The bankruptcy trustee can have you declared personally liable for the shortfall where a serious and manifest fault on your part contributed to the bankruptcy (article XX.225 of the Code of Economic Law). Any form of serious tax fraud, organised or not, counts in any event as such a fault.

For the smallest companies the claim does not exist. It is excluded where the bankrupt company had an average turnover below 620,000 euros and a balance sheet total at the end of the last financial year of no more than 370,000 euros.

An injured creditor may act as well, but not straight away. The creditor must first put the trustee on notice, and may only bring the claim where the trustee has not done so within one month. Article XX.227 of the same Code separately targets the director who knew or ought to have known that there was manifestly no reasonable prospect of avoiding bankruptcy. That claim belongs to the trustee alone.

The cap in article 2:57 only helps in part. It covers liability under article XX.227, but not liability under article XX.225. Claims under articles XX.225, XX.226 and XX.227 go to the insolvency court and nowhere else. We handle those files under conflict management after bankruptcy and liquidation.

You stand beside your company in a criminal file as soon as you carry out the conduct yourself, have it carried out, or knowingly and deliberately contribute to it. Article 16 of the new Criminal Code holds no one responsible except for their own conduct.

Prosecution of the company does not rule out prosecution of the director. Article 18, third paragraph, says so expressly, and the Law of 11 July 2018 abolished the non-cumulation rule with effect from 30 July 2018. Watch the date of the facts as well. The new Criminal Code entered into force on 1 September 2026, and for facts before that day the Criminal Code of 8 June 1867 still applies, unless the new law is more favourable. Our criminal liability audit measures that risk before a file opens.

One offence targets the director directly. Article 476 of the new Criminal Code, formerly article 492bis, punishes the de facto or de jure director of a private legal entity who, with fraudulent intent, uses the assets or the credit of that entity for personal purposes.

A delegation of powers shifts that responsibility only on conditions. A company that has in no way contributed personally to the offence can shift it where the company shows that it delegated its obligations and powers to a person with the required competence, authority and means. The transfer is allowed only where the legislature or the regulator permits it, even if only by implication, and the person who delegates carries the burden of proof. Where the law imposes an obligation personally, no delegation helps. Once an investigation is running, our criminal defence of the company takes over.

Yes. Article 18, third paragraph, of the new Criminal Code provides that the criminal liability of the legal entity does not exclude that of the director. The Law of 11 July 2018 abolished the non-cumulation rule with effect from 30 July 2018, so the court no longer has to work out which of the two committed the graver fault. Expect the public prosecutor to pursue both.

For a slight fault that occurs habitually rather than accidentally, for gross fault, for fraudulent intent and for intent to harm. That is what article 2:57, § 3, 1°, of the Code of Companies and Associations provides. The cap covers liability under article XX.227 of the Code of Economic Law, but not liability under article XX.225, the serious and manifest fault that contributed to a bankruptcy.

Only where the annual accounts do not conceal the true position of the company. In a private limited company the discharge is valid only if operations contrary to the articles of association or to the Code were specifically stated in the notice convening the meeting (article 5:98). In a public limited company those breaches must appear expressly on the agenda of the general meeting (article 7:149).

The delegate must have the required competence, authority and means. The transfer is then allowed only where the legislature or the regulator permits it, even if only by implication. The burden of proof lies with the person who delegates, not with the public prosecutor. The Court of Cassation set out those rules on 5 May 2021 and confirmed them on 11 January 2023.

For five years. Article 2:143, § 1, of the Code of Companies and Associations bars claims against members of the management body five years after the operations connected with their duties. Where those operations were deliberately concealed, the period only starts on their discovery. In a fraud file that last rule is the one that counts.