Who determines whether a director has a conflict of interest? The Dutch Supreme Court provides clarity

Introduction

In the Getir case (ECLI:NL:HR:2026:592), the Dutch Supreme Court has clarified a long-debated issue: it is not the director concerned, but the other members of the board who determine whether a conflict of interest exists that prevents participation in decision-making.

Background

Getir B.V. is the holding company of an international rapid delivery group with Turkish roots. The founders, referred to as the Founder Directors, held approximately 21% of the shares and served on the board as non-executive directors. The main financier, Mubadala, which is by far the largest shareholder with approximately 29%, had already provided more than USD 450 million in financing.

At the end of December 2024, it became clear that Getir would face a funding shortfall as of January 2025, rising to USD 58 million by mid-March 2025. Mubadala withdrew from previously agreed arrangements regarding a so-called Hive-Out, under which the Founder Directors would acquire the Turkish core operations, and instead presented the board with a take-it-or-leave-it acquisition offer.

The executive directors concluded that the Founder Directors had a conflict of interest. They had a personal interest in the performance of the agreements set out in the term sheet, whereas the company’s interests required acceptance of the transaction proposed by Mubadala. On 7 and 10 January 2025, the executive directors adopted the key resolutions in the absence of the Founder Directors. These resolutions were subsequently approved by the general meeting of shareholders with more than 59% of the votes.

The Founder Directors initiated proceedings before the Enterprise Chamber, which rejected their request for immediate relief. In cassation, they argued that the Enterprise Chamber had failed to recognise that it is for the director concerned to assess whether they may participate in the decision-making.

Legal framework

Article 2:239(6) of the Dutch Civil Code, for private companies, and Article 2:129(6) for public companies, provides that a director must not participate in deliberations or decision-making if they have a direct or indirect personal interest that conflicts with the interests of the company.

The applicable test, derived from the Supreme Court’s Bruil judgment of 2007, is whether it can reasonably be doubted that the director is guided solely by the interests of the company and its affiliated business.

Failure to comply with the conflict of interest rules may have far-reaching consequences. A board resolution adopted in breach of Article 2:239(6) of the Dutch Civil Code may be null and void or voidable. In addition, such a breach may constitute grounds for doubting proper management or for establishing mismanagement in inquiry proceedings, and may give rise to personal liability of the director concerned under Article 2:9 and Article 6:162 of the Dutch Civil Code.

However, the law does not explicitly specify who determines whether a conflict of interest exists.

Who determines whether there is a conflict of interest?

The Supreme Court has now filled this gap. A director who may have a conflict of interest has an active duty to disclose. They must act with full transparency and report the potential conflict to their fellow directors.

If there is disagreement as to whether a conflict of interest actually exists, it is not for the director concerned to decide, but for the other directors to make that determination. If they conclude that exclusion is necessary, they must ensure that the director concerned does not participate in the deliberations or decision-making.

Notably, the Supreme Court held that this rule also applies where the director concerned has not reported their potential conflict of interest at all. In other words, a director’s silence does not prevent the other directors from intervening on their own initiative.

What does this mean in practice?

The ruling clearly shifts responsibility to the other directors. They not only have the authority to exclude a fellow director with a conflict of interest from the decision-making process, but they also bear responsibility for doing so.

This is no small task. In boards where shareholders have appointed their own representatives, such as in private equity structures, joint ventures, or investment arrangements like that of Getir, business and personal interests often overlap. In such situations, the risk of conflicts of interest is greatest, while in practice, the threshold for confronting a fellow director is often highest.

The Supreme Court removes that barrier. It is now up to the other directors to take action, even if the director concerned believes there is no issue.