Recital (61)

Where Member States allow directors to take measures to protect the interests of the general body of creditors, other than by discharging their duty to submit a request for the opening of insolvency proceedings, they should also lay down provisions that ensure that directors are liable for any damage caused to the creditors resulting from any deterioration in the recovery value of the company compared to the situation that would have existed had a request for the opening of insolvency proceedings been submitted. In such cases, the creditors should be put in the position they would have been in had the request to open insolvency proceedings been submitted by the directors within the time limit set by the Member States. It should be possible for Member States to provide for the release of directors from such liability where and to the extent that those directors are able to demonstrate, on the basis of objective circumstances and information that was ascertainable at the time the measures concerned were taken, that such measures were reasonably likely to secure an equivalent or better outcome for creditors than the outcome resulting from the submission of a request for the opening of insolvency proceedings. In such situations, national law on the discharge of the burden of proof should apply.