Directorship ... to have sufficient members

The capacity of director of a company or a non-profit organization has legal consequences. Also when you only have this capacity pro forma or as a favor. The Court of Cassation confirms that every individual director is obliged to monitor their fellow directors, even when this was not intended in the mandate.

Late filing of a non-profit organization

The tax authorities turn to the directors of a non-profit organization since the tax return of the non-profit organization was filed too late. One of the directors was shocked, since he was indeed the treasurer of the organization, but he only accepted this mandate in order to reach the minimum number of directors. The concerned also showed that the chairman of the board called the shots. For himself he could demonstrate that since the non-profit organization was established, he never had signed any document nor made any acts of management.

For the Antwerp Court of Appeal it was sufficiently established that 'in the given circumstances the late filing of the tax return cannot be held against the defendant' and liberates the director of his liability.

Tax authorities appeal in cassation

The tax authorities appealed with the Court of Cassation since they believe this nuance is not in the law. And the Court of Cassation follows the tax authorities' restrictive position.

Both based on the old and the new legislation the rule goes that all powers which the law does not explicitly give to the general shareholders meeting, are assigned to the board of directors.
The articles of association can however limit the powers of the board of directors. But these limitations, as well as the division of tasks agreed between the directors, cannot be counteracted against third parties, not even when they are made public.

Besides, the Court states that the management of a non-profit organization should be commissioned to a 'collegial board of directors'. This means that every individual director is obliged to monitor the fellow directors. The fact that a division of tasks was agreed between them, or that a director did not solicit for the director mandate, or even that one director appropriates the management, does not impair this obligation.


You do not escape directors liability just like that. With this judgment the Court of Cassation undermines three common used 'excuses'.

1. The first argument which is often used concerns the divisions of tasks between the directors. When the directors agree that one does finance, the other marketing, another HR ... this does not mean that they escape their joint liability.

2. The second argument is that of a pro forma appointment, or a nomination as a favor (in order to have sufficient members). It happens indeed that a person takes the role of director in order to make sure that there are sufficient members. The fact that this person afterwards doesn't show up anymore, does not release him from the monitoring obligation of the other directors.

3. Subsequent the third excuse: the president calls all the shots. While it is undoubtedly reality and for some directors impossible to monitor the activities (lack of interest, made impossible by other directors), you do not escape from the directors liability.

If you cannot monitor other directors, you should make a written reservation against this way of working or, and that is the most effective, resign.

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