Liabilities of the Members of the Board of Directors of Capital Companies Under Turkish and Belgian Laws
ADMD Law Office / Camille Balfroid
Considering the significant role endorsed by board members within companies, it is important that directors know in which situations they may encounter civil or criminal liabilities for their actions. In general, the rules regarding the responsibilities of board members are part of corporate governance code of conduct. However, in many countries such as Turkey and Belgium liability rules applying to directors are integrated within the legislation directly. This brief information note targets to summarize the liabilities of the members of the boards of directors of the capital companies in Turkey and in Belgium.
In February 2011, the New Turkish Commercial Code, Law No. 6102 (New TCC), was published in the Official Legal Journal (Gazette) and entered into force as of the first of July 2012. The New TCC is elaborated on the basis of corporate governance principles. The New Law aims at extending the scope of corporate governance further than publicly traded companies as the new rules it provides for shall apply to all enterprises.
Modifications to the management structure of joint stock corporations and limited liability companies have been introduced by the New TCC. The management of joint stock corporations is undertaken by the general assembly of shareholders and the board of directors. The board of directors shall be composed of at least one member and legal entities represented by an individual may be part of the board. Moreover, in comparison with the previously enforced commercial code (Old TCC), there is no requirement to integrate shareholders within the board of directors. Regarding limited liability companies, it is the general assembly of shareholders which is the supreme body. The general assembly may be composed from one up to fifty shareholders. It is within the power of the shareholders to appoint the managers of the company. The board may be composed by one or more members however, at least one of the members shall be appointed among the shareholders who should have unlimited authority to represent and bind the company in its operations.
The approach endorsed by the New TCC is based on four significant pillars: (i) full transparency; (ii) fairness; (iii) accountability and; (iv) responsibility.
In the perspective of modernizing the regime of responsibility applicable under the Old Turkish Commercial Code, Law No. 6762 (Old TCC), the New TCC brought major changes and clarifications regarding the liabilities of board members.
1.1. The Civil Liabilities of Company Directors in Turkey
In general, the board members of a company are responsible for the management and the representation of the company. The directors owe a duty of care and loyalty to the company which compel them to act prudently diligently and to always pursue the interests of the company and its shareholders in the performance of their roles and tasks. They also have a duty of confidentiality, non-competition and they shall avoid conflicts of interests. Directors shall be liable for violation of their obligations stemming from the law and the articles of association of the company (AoA).
Under the Old TCC, the members of the board of a company were capable of being liable for breach of their duties when damage was incurred by the company or its shareholders. Moreover, the abolished law provided for a system of joint liability.
Indeed, under the Old TCC, directors could not be held personally liable for transactions or agreements realized on behalf of the company but in breach of their duties. Article 366 of the Old TCC provided that board members were capable of being held jointly and severally liable for the following acts and transactions, listed exhaustively:
- Where the company records indicate that shareholders have paid for their shares, but in fact no payment, or sufficient payment, has been made;
- Where the company has distributed dividends that are more than the distributable profit;
- Where books required that to be maintained do not exist or have not been properly maintained;
- Where, in the absence of justification or excuse, shareholders’ decisions have not been implemented; and
- Where the board has negligently or intentionally failed to perform its duties delegated by the laws and the governing documents of the company.
In the preceding cases, directors would have been found jointly responsible for breach of their duties unless they could prove that they did not commit any fault. Thus, in this system, the burden of proof regarding the element of fault rested on the directors.
The New TCC has brought significant change in this regime. First, Article 553 of the TCC is now formulated as follows:
« In the event that founders, board members, managers and liquidation officers breach their liabilities defined by the law and articles of association due to their fault, they shall be deemed responsible for the loss they cause against the company, shareholders and company creditors. »
This new system enables creditors to bring a claim for damages directly against the board members, incorporators and managers. Hence, this provision is especially targeting creditors who are now entitled to bring a tort action. However, scholars have agreed that the scope of Article 553 New TCC is limited to the direct damages that third parties have suffered as a result of the duties of board members.
Moreover, Article 553 significantly changes the burden of proof regarding the element of fault for board members. Accordingly, where the Old TCC set forth that the burden of proof rested upon the board members to prove that they are faultless and to be exempt from liability, Article 553 now states that such burden of proof rests on the claimant to prove that the breach of duties by the director(s) constitute a fault which is the direct cause of the incurred damage. Thus, in addition to demonstrating the damage and the causal link, the claimant will also be required to prove to the Court that such actions of the directors do in fact, constitute fault/negligence.
Another novelty regarding the New TCC is the abolition of the system of joint liability of board members. Under the new regime, where more than one director shall be responsible for a damage incurred by the company, its shareholders or creditors, each member of the board may be found liable pro rata to the degree of their negligence. This mechanism of differentiated liabilities generates situations where directors who acted with due care will not carry responsibility for the damage and those who are involved will be liable as per their own negligence. Liability is therefore no longer joint but personal.
In this context, one shall note the clarification brought to the definition of the duty of care by the New TCC. Previously, the Old TCC required directors to act as prudent company executives in the performance of their roles and tasks. The level of care expected was determined by reference to articles contained in the Turkish Code of Obligations, which were ambiguous. Now, the New TCC states that board members should act as cautious executives and protect the interests of the company while undertaking their duties by abiding the principle of good faith. It also states that a cautious executive shall make business judgments that are deemed to be in accordance with corporate governance principles. Accordingly, Article 553/3 states that directors shall not be held liable for violations of the Law, AoA or for fraudulent activities that fall beyond their control.
Finally, the last significant change brought by the New TCC regarding the responsibility of the board concerns the delegation of power by the directors, where the Law previously allowed the Board members to delegate management and representation powers to third parties. Article 367 of the New TCC authorizes directors to delegate some management powers, partially or entirely, to other board members or third parties. However, the following conditions needs to be fulfilled for such delegation: (i) the AoA of the company shall contain provisions regarding the delegation of powers and (ii) the board of directors shall adopt an internal directive defining the duties, positions and reporting chain applicable within the company. In addition, Article 370 of the New TCC provides that although directors are allowed to delegate their representation powers, at least one board member must always have full representation powers for the company. This differs from the general rule under which it is assumed that two directors possess the representation power unless it has been stated otherwise by the AoA or the board is composed of a single member.
On the other hand, the New TCC sets forth certain powers that directors cannot delegate to third parties:
- Establishment of the required organization for financial planning, necessary for the accounting, auditing and management of the company.
- Determination of the company’s organization plan.
- Appointment and dismissal of managers and persons at the same status as the managers and authorized signatories.
- High level auditing of managers and representatives with regard to their compliance with laws, AoA, internal directives and written instructions of the BoD.
- High-level company management and related orders and instructions for such management
- Keeping a share ledger, a board resolution ledger and a general assembly meeting books, preparing annual activity report and declaration of corporate governance and submitting the same to the general assembly, preparing general assembly meeting minutes and enforcing general assembly meeting resolutions.
- In case of insolvency, submitting the relevant notifications to the court.
In situations where directors have delegated their powers, the rule is that it is the delegate who will be liable for the damages incurred by the company, its shareholders or creditors. The board members who delegated their functions will only be held responsible if it can be proved that they did not act with a reasonable duty of care when choosing their delegate. Moreover, if they delegate any of the powers listed above or powers that cannot be transferred as per the relevant provisions of the AoA, such delegation will be illegal and the director who delegated powers to third parties shall be liable for all damages arising from such delegation of powers.
1.2. The Criminal Liabilities of Company Directors in Turkey
In accordance with Article 20 of the Turkish Criminal Code, Law No. 5237, criminal liability shall be personal. Consequently, no individual be responsible for the acts of someone else. In Turkey, this rule also applies to legal entities which do not bear criminal liability for offences committed by their organs.
Thus, as a matter of principle under Turkish law, directors and managers shall not be held criminally liable for illegal acts performed by other directors or employees of the company. The New TCC provides that directors along with any other persons shall be criminally liable for the following actions, resulting either from an act or an omission:
- Inaccurate/false documents, information and declarations
- Misrepresentation of company share capital and being aware of the incapability to satisfy capital undertaking
- The irregularity in valuation of in-kind capital
- The failure to duly keep company books
- The failure to launch company web site
- The breach of confidentiality duty
- The collection of capital from the public without the permission of the Capital Markets Board with the aim or promise of establishing companies, increasing capital and using this money contrary to the aim of collection
On the other hand, there is no system of criminal liability for companies in Turkey. If a director or an employee commits an act which is against the law, that individual shall be the sole responsible for such actions and shall be the only one sentenced. However, Turkish law provides for specific situations where security measures can be taken against companies. Article 60 of the Turkish Criminal Code states that security measures may take the form of: (i) cancellation of the commercial operation license or (ii) seizure of goods or earnings. These measures shall only be applied in the circumstances provided by the law such as fraudulency, blackmailing, offences against the economy, the environment or the government and nation.
1.3.The Liabilities for Tax and Public Receivables of Company Directors in Turkey
Even though it is not included in the TCC, an important source of liability for board members concern tax and public receivables such as social security premiums.
Regarding taxes, Article 10 of the Tax Procedural Law provides that the authorized representatives of the company are compelled to fulfil tax obligations. This includes the directors of the company as well as the individuals to whom power has been duly delegated. In cases where taxes and related receivables have not been paid to the governments by the company, the authorized representatives shall endorse liability on their private assets in cases where the assets of the company did not allow the taxes to be paid partially or totally.
Concerning other forms of public receivables, Article 35 of the Law on the Procedures of Collection of Public Receivables states that authorized representatives shall also be accountable in situations where the assets of the company are not sufficient to recover public debts other than taxes. The public receivables at stake will thus be collected from the private assets of these representatives.
Board members and their delegates shall be severally and jointly liable for taxes and public receivables that have accrued in their office terms.
The management structure of companies varies for joint stock companies and limited liability companies. Joint stock companies are managed by a board of directors composed of at least three persons appointed by the general assembly of shareholders. The number of directors may be reduced to two if there are only two shareholders in the company. Nevertheless, the directors of the corporation may, but are not required to be shareholders of the company, and may also be legal entities as long as a permanent representative is assigned. Board members may be appointed for a term of six years which is renewable. On the other hand, limited liability companies are managed by managers who have the power to act alone and do not need to stand as a board unless set forth by the AoA. The managers may, but are not required to be shareholders and legal entities may also be appointed as managers. Managers of limited liability companies may be appointed for an indefinite period.
There are different legal grounds under which board members can be held liable in Belgium. Directors may encounter criminal as well as civil liabilities. In function of the basis on which they are found to be responsible, different persons are entitled to bring a claim for liability and shall bring the proof of various elements. One of the particularity of the Belgian system is to recognize the criminal liability of companies and legal entities.
2.1. The Civil Liabilities of Company Directors in Belgium
There are three main grounds on which members of the board may encounter civil liability under Belgian law. In addition, there are also specific bases providing for the legal accountability of directors in certain situations. However, as a general rule, the claimant shall always bring the proof of three factors for responsibility to be upheld by the court: a fault, a damage and a causal link between the two.
Under Article 527 of the Belgian Companies Code (BCC), board members can be found liable for a fault in the management of the company. Such fault essentially concerns a breach of the duty of care of the director where the damage was incurred as a result of the failure of the director to act as a reasonable and prudent company executive. It should be noted that thisis an individual responsibility and each board member may only be held liable for his own actions and faults. It should also be noted that directors are only liable and accountable for such actions to the company and its shareholders. Indeed, a liability claim for mismanagement can only be filed against directors by the company itself, on the basis of a simple majority decision of the general assembly of shareholders.
In addition, Article 528 of BCC states that members of the board may encounter liability for violations of the BCC or the company AoA. Accordingly, directors shall be jointly and severally liable. However, a board member can rebut his responsibility if he/she can prove that he/she:
- did not participate in committing the violation;
- was not otherwise negligent; and
- had no knowledge of the violation, or informed the shareholders of it at the first shareholders’ meeting following the date on which he/she became aware of it.
Moreover, for this kind of breach, Article 528 BCC provides that directors are accountable to the company and its shareholders, along with third parties. It is important to note that corporate principles are not directly embedded in the BCC such that in cases where directors have breached these principles, third parties, such as creditors, are only able to claim damages if the principles were part of the AoA of the company or if the court finds that the breach constitutes a tort.
Finally, the board members may also be found liable in situations where they committed a tort. Article 1352 of the Belgian Civil Code states that any person who suffers a loss that results from a tort is entitled to claim damages. A tort is considered to occur when the respondent violated extra-contractual obligations or did not act like a reasonable and prudent person. This is an individual liability. It is the claimant who carries the burden to prove the existence of such a fault as well as his loss and the causal link between the two. This action may eventually serve creditors to sue directors where the latter have breached their duty of care or loyalty. Additionally, as further explained below, this action may also be used by the company itself to claim damages from directors in situations where the criminal liability of the company has been upheld.
2.2. The Criminal Liabilities of Company Directors in Belgium
Under Article 3 of the Belgian Criminal Code, board members of a capital company may encounter criminal liability when the acts they committed constitute an offence. On the other hand, Article 5 of the Belgian Criminal Code recognizes the liability of legal persons such as companies.
In order to find a director criminally liable, three elements should be present: (i) the concrete act which constitutes an offence (material element); (ii) the intention to commit the previous acts (moral element); (iii) the acts should be attributable to the director (culpability).
The offences capable of being committed by board members are the ones set forth at the Criminal Code in addition to particular activities sanctioned by specific labour law provisions. In practice, the criminal liability of directors will often be upheld in situations where board members gave instructions for the offence even though they did not commit the illegal acts themselves. It is important to note once more that criminal liability is personal, and consequently, when several directors are involved in an offence, the court shall determine what the personal responsibility of each board member is on the basis of the facts of the case. Indeed, this appreciation is factual and should be done in accordance with the material facts of the case rather than the AoA which may assign certain duties and responsibilities to specific directors.
Under Belgian law, a company itself may also be held criminally liable. The offence needs to be attributable to company materially and morally. An offence shall be materially imputable to the company if the illegal acts are intrinsically related to the accomplishment of the company objects, to the monitoring of its interests or where the fault has been committed on its account under determined and specific circumstances. In practice, the courts will try verify whether the activities which are alleged to constitute a criminal offence relate to the company’s purpose such as defined in the AoA. Regarding the moral accountability of the company, it shall be proven that the offence results from a deliberate decision taken within the company or from a negligence which occurred within the company. The moral element shall exist on the count of the company itself rather than the natural person who committed the offence.
Article 5, paragraph 2 of the Belgian Criminal Code also addresses the issue of the accumulation of responsibilities for the company and the organ who concretely committed the offence. The principle enshrined in the law is the exclusion of the accumulation of liabilities, where the criminal liability of a company is engaged due to the activities of an identified real person, the person who committed the most severe offence shall be the only one liable. Exception to this principle is made where the natural person was voluntarily and knowingly at fault.
2.3. The Liabilities for Tax and Public Receivables of Company Directors in Belgium
Since 2006, directors may also encounter liability in Belgium for the non-payment of VAT and wage withholding taxes. In addition, they have a specific liability to the Social Security Authorities for all social contributions in some circumstances of bankruptcy.
Concerning VAT, Article 93/11C of the VAT Code provides for the joint liability of directors for the non-payment of VAT provided that it can be proved that such non-payment is due to a management fault (under Article 1382 of the Civil Code). This liability extends to all directors who contributed to such non-payment, whether they are managing directors or de facto directors (i.e. the persons who have exercised actual management powers). Interestingly, the VAT-Code contains a (rebuttable) presumption of fault when at least two or three due debts are not paid within a period of one year (depending on the frequency at which the company has to submit its VAT declaration).
Regarding wage withholding taxes, Article 44/2(4) of the Income Tax Code states that board members are liable (under Article 1382 of the Civil Code) for the non-payment of this contribution arising from their mismanagement. The scope of this provision also includes managing directors, other directors and even de facto directors as long as their involvement in the fault can be proven. There is a (rebuttable) presumption of fault if at least two quarterly or three monthly prepayments per year have not been paid (in function of whether the prepayment is to be paid quarterly or monthly).
Finally, in bankruptcy cases, current and former directors but also all de facto directors may be found liable individually or jointly and severally by the Institute for Social Security for the payment of social security contributions, contributions increases, interest and fixed remuneration. These persons will encounter such a liability only if it can be proven that the bankruptcy of the company is due to their gross negligence.
In Turkey, the Commercial Code was modified in 2012 to integrate better corporate principles within the legislation. The duty of care of board members is now a legal obligation and its scope has been clarified. The New TCC also replaced a system where directors were to be found jointly liable in principle by a regime where individual and proportional liability is the rule. Moreover, it is now the claimant who bears the burden of the proof regarding the elements of negligence instead of compelling board members to establish that they did not breach their duty of care. Finally, the New TCC enables directors to delegate some of their powers and provides for a precise scheme regarding the conditions under which this can be done and the persons who will be accountable for the acts committed by virtue of the delegation.
In comparison, the Belgian system does not possess the same clarity. Indeed, different pieces of legislation provide for the liability of directors. The grounds on which board members may encounter civil liability are spread in the Belgian Company Code and Civil Code. Much precision regarding the scope of each type of responsibility is to be found in case law and the research of scholars and practitioners. A particularity of the Belgian regime is to recognize the criminal liability of companies.
Lastly, it is important to note that under the Turkish and Belgian laws, board members may encounter specific liabilities for the non-payment of taxes and other public receivables such as social security contributions.