On 27 February 2025, Guberna and Chapter Zero Brussels co-hosted a webinar where Lauren Rasking (Counsel, A&O Shearman) and Gauthier Fievet (Knowledge Lawyer, A&O Shearman) analysed the impact of Book 6 of the new Belgian Civil Code on directors’ duties and liabilities.
Key changes in Book 6
Book 6 on extracontractual liability came into effect 1 January 2025, applying to liability-triggering events occurring after that date, even if they relate to prior agreements.
Notable changes include (i) allowing concurrent claims based on contract and tort between contracting parties, and (ii) the abolition of the so-called quasi-immunity previously enjoyed by auxiliaries, including directors.
Increased exposure for directors to extracontractual claims of the company’s creditors
Under the previous legal framework, directors were largely shielded from direct liability towards the company’s contractual creditors.
Book 6 abolishes this quasi-immunity, allowing creditors to sue the directors – including "de facto" directors – of their contractual debtor on an extracontractual basis.
Conditions for liability
For a claim to succeed, the creditor must establish:
An extracontractual fault of the director, i.e. show that the director failed to act as a reasonably prudent and diligent director would have under similar circumstances, exceeding the acceptable range of differing opinions among such directors.
Causation and damage, i.e. prove that the director’s breach of duty of care caused the company to breach its contractual obligations, resulting in damage to the creditor.
Available defences
Except in cases involving harm to a person's physical or psychological integrity or wilful misconduct, directors:
may rely on statutory provisions (e.g. the caps of article 2:57 BCCA, the 5-year limitation period or the marginal assessment of the fault) ;
may invoke defences arising from their contractual relationship with the company, and the contractual relationship between the company and the creditor, such as a waiver of liability against the auxiliary in the main contract.
Additionally, directors may argue that they do not meet the criteria of an auxiliary as some legal scholars contend that a director is not always considered an auxiliary – particularly if they do not materially execute the contract between the company and the third party.
A director who did not participate in a wrongful board decision can avoid joint and several liability by formally reporting the alleged fault to all the other members of the board and, if applicable, the supervisory board (art. 2:56 BCCA).
Mitigators
In light of these changes, the speakers recommended that directors take proactive steps to protect themselves, such as reviewing their D&O insurance coverage, securing top-down indemnification agreements from a parent company and ensuring the inclusion of waiver clauses in current and future commercial agreements of the company.
Q&A highlights
The panel discussion, moderated by Sandra Gobert (Executive Director of Guberna), explored several practical questions including:
The effectiveness of interim discharge as a defence mechanism;
Whether the new rules could be used to hold directors accountable for environmental damage; and
Potential differences in liability between executive and non-executive directors.
Conclusion
While the liability threshold remains unchanged, the pool of potential claimants has widened to include the company’s contractual creditors.
However, the new regime provides directors with certain defences against a liability claim. Proactive measures, such as reviewing insurance policies, embedding protective clauses in the company’s commercial contracts and securing top-down indemnification agreements from a parent company, can further shield directors from personal exposure.
This discussion will continue in a second webinar on 26 March at 5pm, where Gauthier van Thuyne and Axel de Backer will examine the impact of the EU’s sustainability and reporting requirements on directors’ roles, responsibilities, and liabilities.
by Lauren Rasking and Gauthier Fievet, A&O Shearman