Conflict of interest in the board: who decides? The Dutch Supreme Court clarifies

Conflict of interest in the board: the practical question that matters

Article 2:239(6) of the Dutch Civil Code (DCC) is clear: a director may not participate in deliberations and decision-making if he has a direct or indirect personal interest that conflicts with the interest of the company. However, the law is silent on an important practical question: who determines whether a conflict of interest exists? Does the director in question decide for himself, or is that for his fellow directors?

The Dutch Supreme Court answered this question on 10 April 2026 in a ruling arising from inquiry proceedings involving Getir B.V., the international delivery app with Turkish roots (ECLI:NL:HR:2026:592).

The facts: Getir and a boardroom conflict

Getir is a holding company for an international group with Turkish origins, with investors including Mubadala (approximately 29% of shares) and the Turkish founders (approximately 21%). By late 2024, Getir faces severe financial difficulties: despite a USD 250 million credit facility, a multi-million dollar funding gap is looming for early 2025.

In December 2024, Mubadala presents an ultimatum: all subsidiaries are to be transferred to Mubadala in exchange for debt cancellation. The founders refuse. On 31 December 2024, the board convenes. The executive directors take the position that both the directors nominated by Mubadala and G Squared, and the directors appointed by the founders, have a conflict of interest in the decision-making regarding the proposed transaction — and exclude them from deliberations and voting.

The founders (applicants in cassation) disagree. They argue that it is for the director concerned to judge whether he has a conflict of interest and whether he must abstain.

The Supreme Court's ruling

The Supreme Court rejects this position and sets out a clear procedure:

Step 1: Disclosure by the director concerned

A director who has a possible conflict of interest must disclose this to his fellow directors. He must be transparent about the nature and extent of his interest. This applies even if the director himself believes there is no conflict of interest — the obligation arises from the possibility of a conflict.

Step 2: Decision by the fellow directors

If a dispute arises as to whether a conflict of interest actually exists, it is not for the director concerned to resolve that question. That decision belongs to the other directors. This also applies if the director failed to disclose his possible conflict of interest on his own initiative: even then, the fellow directors may conclude that a conflict of interest exists.

Step 3: Effective exclusion

If the fellow directors conclude that a conflict of interest exists, they must ensure that the director concerned does not actually participate in the deliberations and decision-making. A formal finding is not enough; the exclusion must be effectively enforced.

Why this ruling makes sense

The Supreme Court thereby confirms what had long been assumed in parliamentary history and legal scholarship. The rationale is clear: a director who may himself decide whether he has a conflict of interest is placed in a position where he can allow his own interests to prevail over those of the company. That is precisely what Article 2:239 DCC seeks to prevent.

Moreover, this ruling aligns with the broader duty of directors to be transparent about circumstances that may affect their independent judgment.

What if the articles of association contain no provision?

The procedure described by the Supreme Court applies as a fallback: it operates where the articles of association or internal regulations contain no rules on the disclosure and determination of a conflict of interest. Articles or regulations may:

• Further elaborate on the disclosure obligation;
• Prescribe additional procedures (such as approval by the general meeting or the supervisory board);
• Specify which other body makes the final determination when the entire board has a conflict of interest.

If the company has no supervisory board and the entire board has a conflict of interest, the decision may be taken by the general meeting, unless the articles provide otherwise.

What does this mean for your company?

Review your articles of association. Do your articles contain a provision on conflicts of interest? If not, the Supreme Court's procedure applies as the default. It is advisable to include explicit rules — particularly for companies with a multiple-member board, multiple shareholders, or complex governance structures.

Document carefully. When fellow directors conclude that a conflict of interest exists, record this properly in the minutes: the disclosure, the discussion, the conclusion, and the actual exclusion of the director concerned.

Do not wait for the director to act first. Even if a director does not spontaneously disclose a possible conflict of interest, the other directors may intervene. You do not have to wait passively.

Consider governance in financial crises. The Getir case illustrates how conflicts of interest in extreme situations can lead to complex boardroom deadlocks. Sound arrangements in advance — in articles and shareholders' agreements — are then crucial.

Conclusion

On 10 April 2026, the Dutch Supreme Court clarified a frequently encountered practical question: it is not the director himself, but his fellow directors who decide whether he has a conflict of interest and is excluded from deliberations and decision-making. This ruling aligns with legislative history and underlines the importance of transparency and sound governance within the board of a Dutch private limited company (BV). Ensure your articles of association are in order on this point.

Ruling

This blog post is based on ECLI:NL:HR:2026:592, judgment of the Dutch Supreme Court of 10 April 2026.