D&O insurance and the new BCC

Allen & Overy LLP
Contact

Allen & Overy LLP

On 1 May 2019, the much discussed new Belgian Code on Companies and Associations (the new BCC) entered into force in Belgium. This eAlert focuses specifically on the new rules on directors' liability that are applicable to the members of the many governance structures available under the new BCC, and the impact on D&O insurance.

Applicability of the new rules

The new rules on directors' liability are immediately applicable (i) to legal entities that are incorporated as from 1 May 2019 and (ii) to existing legal entities that have explicitly chosen to be subject to the new BCC with immediate effect. For existing legal entities, the new rules on directors' liability are applicable as from 1 January 2020. The new BCC stipulates that the triggering point for determining whether the old or new BCC applies is the date on which the director committed a wrong.

Key changes concerning directors' liability

Apart from clarifying certain existing rules under the old BCC, the new BCC also creates brand-new rules on directors' liability. This makes the new BCC a more complete codification of the rules on directors' liability.

Please note that the same directors' liability regime applies to members of a management body, to daily managers, and also to de facto directors, which are all other persons that have or had real management power over the legal entity. Moreover, it also applies to the directors of associations and foundations.

The new provisions on directors' liability in the new BCC relate to the following topics:

  • A liability cap on directors' liability

The most noteworthy change to directors' liability under the new BCC is that liability is capped. Five different caps exist ranging from EUR 125,000.00 to a maximum of EUR 12 million. The applicable cap depends on the size of the company, based on its turnover and its total balance sheet, which is calculated as an average over the three previous financial years.

The liability caps do not apply to certain specific types of wrongdoings, such as habitual minor errors, serious errors and fraudulent wrongdoing. In fact, as a result of these exceptions, the caps only apply to occasional minor errors. However, in practice, directors' liability claims are not often made for these types of errors.
Furthermore, a director’s liability is not capped in the specific context of unpaid corporate income tax, social security contributions or VAT, and in the context of a bankruptcy where under certain circumstances directors are jointly liable for the company’s unpaid social security contributions.

  • Strict rules on a legal entity exempting, waiving or indemnifying their directors' liabilities

The new BCC prohibits all mechanisms pursuant to which a company exempts or exonerates its directors from liability in advance, both as regards the company and third parties. Moreover, it is now prohibited for a company to indemnify its own directors in advance for their liabilities to the company or to third parties. This prohibition applies to the legal entity indemnifying its own directors and its subsidiaries or other controlled entities indemnifying the directors of the parent company or the controlling entities. However (and importantly), top-down indemnification remains possible. A parent or controlling entity is still entitled to indemnify the directors of a subsidiary or controlled entity. Also third parties may continue to indemnify directors against liabilities incurred to the legal entity or third parties.

The provisions that clarify and codify previous rules relate to the following topics:

  • A positive description of management duties

The new BCC introduces a positive description of the directors' management duties, setting out that the directors have the obligation to “properly” perform the duties that are assigned to them.

  • Joint liability as the default liability

The new BCC has adopted joint liability as the default rule. Directors that are organised in a collegial governance body will be jointly liable for all management and supervisory wrongdoings committed in the performance of their duties. Even if the directors are not organised in a collegial governance body, directors will remain jointly liable for all damages arising from breaches of the new BCC or the articles of association. However, if the director had no part in the breach, and the board of directors was notified of the breach by that director, that director will not be held jointly liable.

  • The limitation period of 5 years for directors' liability

Under the new BCC, it is clarified that the five-year limitation period applies to the sole manager, to directors, and also to daily managers, permanent representatives of director-legal entities and to the de facto directors. The five year limitation period also applies to associations and foundations.

  • The discharge of directors

There is now an explicit legal basis for the discharge of the members of the executive committee (if the articles of association permit a dual management structure). Additionally, the new BCC includes an explicit legal basis for the discharge of members of non-profit organisations.

Impact on D&O Insurance

A D&O insurance covering directors' liability is often included within the traditional insurance package of a company. Such insurance covers the general liability of directors and often also includes defence costs related to such liability.

Under the new BCC, there are no particular changes with regard to D&O insurance, which remains a non-mandatory insurance. However, D&O insurance might still be impacted by the new BCC as a result of the following developments:

  • The (limited) impact of the liability cap regime on D&O insurance

The new liability caps were introduced by the Belgian legislator with the intention of increasing the insurability of directors' liability. By setting specific caps on the liability of directors, the insured risk can more easily be assessed by insurance companies, which in turn could decrease the D&O insurance premiums and hence make D&O insurance more widely accessible to directors.

However, it is doubtful whether that objective will be met in practice in view of the many different exceptions to the liability caps. As stated above, the many exceptions to the liability caps result in the caps only applying to occasional minor errors.

However, D&O insurance typically insures wrongdoing that is much broader than occasional minor errors. For example, serious errors, habitual minor errors and gross negligence may be insured under a D&O insurance policy, and may not be limited to the amounts of the liability caps.

Arguing that the insured limits under a D&O insurance policy should be equal to the amounts of the liability caps is thus an over-simplification. This is because directors can be held liable for a very broad range of errors which are in most cases not capped, so D&O insurance policies will continue to play a very important role.

  • The liability caps apply per fact or per set of facts triggering directors' liability, regardless of the number of claimants or the number of claims. Interestingly, the first come, first serve rule applies here: once the cap has been reached, other victims will no longer receive compensation for damages arising from the same fact(s). Additionally, in most cases the cap will apply to the entire board as a result of the joint liability principle (see above). Therefore, if one board director has already paid the maximum amount under the cap, no further compensation can be claimed from the other directors of the board.

However, D&O insurance policies typically tend to contain specific insured amounts per claim and per year. These policies are therefore not expressed in terms of facts or a set of facts corresponding to the set-up under the new BCC. Limiting D&O insurance coverage to the amount of the liability cap of the new BCC would provide insufficient protection, since multiple non-related facts giving rise to director’s liability claims could arise in a single year. Only providing coverage up to the amount of the applicable cap in this case would result in insuring directors for one set of facts but then potentially leaving the directors fully exposed to any subsequent liability claims arising from different facts as their coverage will already have been exhausted. It might be that insurers will adjust their policy wording to give effect to the scope of application of the liability caps. However, this is most unlikely as this would change the entire mechanics of a D&O insurance policy.

Conclusion

D&O policies will most likely not be impacted by the new rules applicable to the directors' liability regime under the new BCC. Given the limited scope of application of the liability caps (i.e. occasional minor errors) and the much broader coverage provided by D&O insurance policies, D&O insurance will continue to play a large role even under the new BCC. Having D&O insurance coverage equal the liability caps of the new BCC would provide insufficient protection. Therefore, at first glance, it is doubtful that the legislator’s intention to increase the insurability of directors' liability and lower insurance premiums will succeed.

Furthermore, D&O insurance will become even more important in view of the reduced possibilities of company indemnification mechanisms.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Allen & Overy LLP | Attorney Advertising

Written by:

Allen & Overy LLP
Contact
more
less

Allen & Overy LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.