Bankruptcy
Act
TITLE 1 BANKRUPTCY
Chapter 1 Declaration of Bankruptcy
Article 1 Request for a bankruptcy order
- 1. A debtor who
is in a situation where he has stopped to pay his due and demandable debts
shall be declared bankrupt by court order, rendered either upon his own
request or upon the request of one or more of his creditors*).
- 2. The bankruptcy
order may also be rendered for reasons of public interest or upon the
request of the Public Prosecution Service.
*) A debtor who applies for his own
bankruptcy has to make plausible to the court that he is no longer able
to pay off his debts. When a creditor applies for the bankruptcy of
the debtor he must, briefly, prove the same. In practice this means,
although not formally required, that such creditor must not only submit
his own claim(s), but he has to make plausible as well that the debtor
is in default of performing at least one other claim of another creditor
('supporting claim'). Only then the court is able to asses that the
debtor has stopped to pay his due and demandable debts. So it's not
possible for a creditor to lodge a petition for bankruptcy when the
debtor only fails to comply with this creditor's claim(s). In such event
the creditor can only try to acquire an enforceable judgment against
the debtor (to be obtained after normal proceedings) which makes him
entitled to foreclose the debtor's property, from which he, subsequently,
may recover his claim(s).
Article 2 Court where a request for a bankruptcy order must be lodged
- 1. The bankruptcy
order is rendered by the District Court within whose district the domicile
of the debtor is located.
- 2. If the debtor
has left the Netherlands, the District Court within whose district his
last domicile was located, has jurisdiction.
- 3. With respect
to partners of a general partnership (‘vennooptschap onder firma’)*),
the District Court within whose district the (registered) office of that
general partnership is located, shall have jurisdiction as well.
- 4. If the debtor
has no domicile within the Netherlands, yet he conducts a professional
practice or business there, the District Court within whose district his
(registered) office is located, shall have jurisdiction.
- 5. If, in the
events referred to in paragraph 3 and 4, bankruptcy orders are rendered
by more than one District Court having jurisdiction on different dates,
only the first bankruptcy order will have legal effect. If bankruptcy
orders of different District Courts are rendered on the same date, only
the bankruptcy order of the District Court listed first in the Official
Bulletin of Acts and Orders ('Staatsblad') shall have legal effect.
*) The same applies to a limited
partnership ('commanditaire vennootschap') in respect of the
fully liable partners.
Article 3 Immediate additional request for the application of the Debt
Repayment Scheme
- 1. If a request
for a bankruptcy order concerns a debtor who is a natural person and who
has not requested for the application of the Debt Repayment Scheme referred
to in Title III,
then the clerk of the court shall immediately notify him by letter that
he may lodge a request as meant in Article
284 within fourteen days of the date on which such letter was sent.
- 2. A hearing on the request for a bankruptcy
order shall be stayed until the period referred to in paragraph 1 has
expired.
Article 3a Request for a bankruptcy order and for a Debt Repayment Scheme
order
- 1. If a request for a bankruptcy order and
a request for the application of the Debt Repayment Scheme referred to
in Title III are
pending at the same time, the latter shall be heard first.
- 2. The hearing of the request for a bankruptcy
order shall be stayed until the court has given a final and binding decision
on the request for the application of the Debt Repayment Scheme.
- 3. The request for a bankruptcy order shall
lapse by operation of law upon a judgment ordering the definitive application
of the Debt Repayment Scheme.
Article 3b Request for bankruptcy when the debtor already falls under
the scope of a Debt Repayment Scheme
Articles 3 and
3a shall not be
applied if a request for a bankruptcy order concerns a debtor to whom
the Debt Repayment Scheme already applies.
Article 4 Formal requirements for a request for a bankruptcy order
- 1. The request for a bankruptcy order is
made and the petition therefore is lodged with the clerk of the District
Court and shall be heard in chambers as soon as possible. The Public Prosecution
Service shall be heard upon such a request. If the request for a bankruptcy
order is made by the debtor himself and he is a natural person, then the
clerk of the District Court shall immediately notify him that he may lodge,
without prejudice to Article
15b, paragraph 1, a request for the application of the Debt Repayment
Scheme as referred to in Article
284.
- 2. A debtor who is married or has entered
into a registered partnership may only file a request for a bankruptcy
order in respect of himself with the cooperation of his spouse or, respectively,
his registered partner, unless any community of property has been excluded
between the spouses or, respectively, the registered partners.
- 3. In the event of a general partnership
(‘vennootschap onder firma’)*),
the application for a bankruptcy order must list the names and addresses
of each of the partners who are jointly and severally liable for the debts
of the general partnership.
- 4. The request for a bankruptcy order must
contain such information that the court is able to determine whether it
has jurisdiction on the basis of the European
Regulation mentioned in Article
5, paragraph 3.
- 5. The bankruptcy order shall be pronounced
in open court and is enforceable immediately, notwithstanding any appeal
or contrary legal action.
*) The same applies to a limited
partnership ('commanditaire vennootschap') in respect of the
fully liable partners.
Article 5 Requests must be lodged by an advocate
- 1. The requests (petitions) referred to
in the preceding Article
and in Articles 8,
9, 10,
11, 15c,
paragraph 2, 67,
155, 166,
198 and 206
must be lodged by an advocate (solicitor admitted to the Bar).
- 2. Paragraph 1 does not apply to an appeal
instituted against an order of the magistrate ('rechter-commissaris')
through which the liquidator ('curator') becomes authorised
to terminate an employment contract.
- 3. Requests (petitions) made pursuant to
Article 33 of European
Regulation EC/No 1346/2000 of 29 May 2000 on insolvency proceedings
must be lodged by an advocate (solicitor admitted to the Bar).
Article 6 Rendering of the bankruptcy order
- 1. The District Court may order that the
debtor is to be summoned to be heard in court, either in person or through
a representative authorized as such by written procuration (power of attorney).
In such event, the clerk of the court shall ensure that the debtor is
summoned in the way as provided by Order in Council for this purpose.
Where main insolvency proceedings have been opened outside the Netherlands
pursuant to Article 3, paragraph 1, of the European
Regulation mentioned in Article
5, paragraph 3, the clerk of the court shall, without delay, notify
the liquidator in these main insolvency proceedings in writing of the
request for a bankruptcy order filed at a Dutch Court, indicating as well
that he may express his views about this request within a period to be
set by the Dutch court.
- 2. If the debtor, who is summoned to be
heard in court, is married or has entered into a registered partnership,
his spouse or, respectively, his registered partner may also appear in
court, either in person or through a representative authorized as such
by written procuration (power of attorney).
- 3. The bankruptcy order shall be rendered
if, after a brief investigation, there appear to be facts and circumstances
from which follows that the debtor is in a situation where he has stopped
to pay his due and demandable debts and, where the request for the bankruptcy
order is made by a creditor, that this creditor has a claim against the
debtor*).
- 4. Where the jurisdiction of the Dutch court
is based on the European
Regulation mentioned in Article
5, paragraph 3, then the bankruptcy order will specify whether the
ordered bankruptcy in the Netherlands concerns main insolvency proceedings
or territorial insolvency proceedings within the meaning of that European
Regulation.
*) A debtor who applies for his own
bankruptcy has to make plausible to the court that he is no longer able
to pay off his debts. When a creditor applies for the bankruptcy of
the debtor he must, briefly, prove the same. In practice this means,
although not formally required, that such creditor must not only submit
his own claim(s), but he has to make plausible as well that the debtor
is in default of performing at least one other claim of another creditor
('supporting claim'). Only then the court is able to asses that the
debtor has stopped to pay his due and demandable debts. So it's not
possible for a creditor to lodge a petition for bankruptcy when the
debtor only fails to comply with this creditor's claim(s). In such event
the creditor can only try to acquire an enforceable judgment against
the debtor (to be obtained after normal proceedings) which makes him
entitled to foreclose the debtor's property, from which he, subsequently,
may recover his claim(s).
Article 7 Right to seal off the property of the debtor pending the investigations
- 1. Pending the investigations, the District
Court may, if so requested, grant the petitioner the right to seal off
the property (estate) of the debtor. It may do so subject to security
given for such amount as it may determine.
- 2. The seals shall be affixed by a notary
assigned when the right to seal off the debtor’s property (estate)
was granted by the court. The assets referred to in Article
21 shall not be sealed; a brief description thereof shall be included
in the official report.
Article 8 Appeal or objection by the debtor against the bankruptcy order
- 1. The debtor who has been declared bankrupt
after he had been heard on a request for his bankruptcy has a right to
appeal against the bankruptcy order during a period of eight days after
the date of that order.
- 2. If he has not been heard, he has the
right to lodge an objection against the bankruptcy order within fourteen
days after the date of that order. If he finds himself outside the Netherlands
at the time that the bankruptcy order was rendered, then this period is
extended to one month.
- 3. The debtor may appeal against the judgment,
given upon his objection, within eight days from the date of that judgment.
- 4. The appeal and the objection must be
made by means of a written request (petition) lodged with the clerk of
the court that must be seised. The President of that court shall immediately
set the date and time for the matter to be heard. No later than on the
fourth day following the day on which the debtor lodged his request (petition),
the debtor must have notified the advocate (solicitor admitted to the
Bar) who lodged the request for the bankruptcy order, of the objection
or appeal made, and of the time set for the hearing, which notification
must be made by means of a bailiff’s writ officially served on that
advocate (solicitor admitted to the Bar),
- 5. Towards the creditor who has sought the
debtor’s bankruptcy this notification shall serve as a summons to
appear in court.
- 6. The matter will be heard as provided for
in Article 4.
Article 9 Possibility of appeal for the petitioner
- 1. If a request for a bankruptcy order is
rejected, an appeal against that decision may be filed within eight days
following the date of rejection.
- 2. The same applies if a bankruptcy order
is nullified as a result of an objection made against it as referred to
in Article 8, in which case the
clerk of the Court of Appeal before which the appeal proceedings were
instituted shall, without delay, notify the clerk of the court which ordered
the nullification of the bankruptcy order.
- 3. The appeal proceedings shall be instituted
and heard as provided under Articles
4 and 6.
Article 10 Others who may make an objection against the bankruptcy order
- 1. Each creditor, with the exception of
the creditor who requested for the bankruptcy order, and each interested
party has the right to lodge an objection against the bankruptcy order
within eight days from the date of that order.
- 2. The objection is made by written request
(petition), lodged with the clerk of the court which rendered the bankruptcy
order.
- 3. The presiding judge of that court shall
immediately set the date and time for the hearing. No later than on the
fourth day following the day on which the petitioner lodged his request
(petition), the petitioner must have notified the debtor and, where the
bankruptcy order has been requested for by a creditor, the advocate (solicitor
admitted to the Bar) who lodged the request for the bankruptcy order on
behalf of this creditor, of the objection against the bankruptcy order
and of the time set for the hearing, which notification must be made by
means of a bailiff’s writ which has been officially served on that
debtor and, respectively, that advocate (solicitor admitted to the Bar).
- 4. Towards the debtor and that creditor
this notification shall serve as a summons to appear in court.
- 5. The matter will be heard as provided
for in Article 4.
Article 11 Possibility of appeal for others than the petitioner
- 1. A creditor or interested party whose
objection against the bankruptcy order as referred to in the preceding
Article has been rejected by the District Court, has the right to
appeal against this decision within eight days from the date of rejection.
- 2. The same right of appeal belongs to the
debtor, the creditor who requested for the bankruptcy order and the Public
Prosecution Service if the bankruptcy order is nullified as a result of
an objection made against it as referred to in Article
10, in which case Article 9, paragraph
2 shall apply.
- 3. The appeal proceedings shall be instituted
and heard as provided for in Articles
4 and 6.
- 4. If the objection has been lodged with
the Court of Appeal, any further appeal shall be excluded.
Article 12 Appeal in cassation
- 1. The debtor, the creditor who requested
for the bankruptcy order, the creditor or interested party as referred
to in Article 10, and the Public
Prosecution Service have the right to lodge an appeal in cassation (appeal
to the Supreme Court) against the judgment rendered by the Court of Appeal
within eight days after the date of that judgment.
- 2. The appeal in cassation shall be lodged
and heard as provided for in Articles
4, 6 and 8.
- 3. If the appeal in cassation is made against
a judgment of a Court of Appeal in which a bankruptcy order has been nullified,
the clerk of the Supreme Court shall, without delay, notify the clerk
of that Court of Appeal.
Article 13 Acts already performed by the liquidator remain valid and binding
for the debtor
- 1. If a bankruptcy order has been nullified
as a result of an objection, an appeal or an appeal in cassation made
against it, all acts performed by the liquidator ('curator')
prior to or on the day on which a publication in accordance with Article
15 was made, shall nevertheless remain valid and binding for the debtor.
- 2. Pending an objection, an appeal or an
appeal in cassation, no consultations for a final arrangement (composition)
with the creditors can take place, nor is it possible to proceed to a
winding-up (liquidation) without the consent of the debtor.
Article 13a Termination of an employment agreement when the bankruptcy
order has been nullified
If the bankruptcy order has been nullified, then the termination of an
employment agreement by the liquidator ('curator') shall be governed,
in derogation from Article
13, paragraph 1, by the statutory or agreed rules applicable outside
bankruptcy, on the understanding that the periods referred to in Article
683, paragraph 1 and 2, of Book 7 of the Civil Code, and in Article
9, paragraph 3, of the Extraordinary Labour Relations Decree ('Buitengewoon
Besluit Arbeidsverhoudingen'), shall start to run as of the moment
on which the bankruptcy order was nullified.
Article 14 Appointment of magistrate and liquidator in bankruptcy; publication
of information
- 1. The bankruptcy order shall provide for
the appointment of one of the members of the District Court as magistrate
in bankruptcy ('rechter-commissaris'), and the appointment of
one or more liquidators ('curators'). The court which renders
the bankruptcy order shall in that order also charge the liquidator ('curator')
with the opening of letters and telegrams addressed to the bankrupt debtor.
The District Court shall mention in its judgment the precise time, as
to the exact minute, on which the debtor has been declared bankrupt.
- 2. The mail transport company or mail transport
companies that have been designated as provider of general mail services,
and other certified mail transport companies as meant in the Mail Act
2009 ('Postwet 2009'), shall, without delay, be informed by the
clerk of the court of the charge as referred to in the previous paragraph.
- 3. An extract of the bankruptcy order, listing
the name, address or office and profession of the bankrupt debtor, as
well as the name of the magistrate ('rechter-commissaris'), the
name and address or office of the liquidator ('curator'), the
date of the bankruptcy order and, if a provisional creditors committee
has been appointed, the names, professions and addresses or offices of
all members of that committee, shall immediately be published by the liquidator
('curator') in the Government Gazette ('Staatscourant').
- 4. Upon the request of a liquidator in insolvency
proceedings opened pursuant to Article 3, paragraph 1 or 2, of the European
Regulation mentioned in Article
5, paragraph 3, the clerk of the District Court at the Hague shall
immediately publish in the Government Gazette ('Staatscourant')
the data referred to in Article 21 of that European
Regulation. Such a publication is made in any event if the debtor
has an establishment in the Netherlands in the meaning of Article 1, under
point (h), of the before mentioned European
Regulation. The data meant in the first sentence of the present paragraph,
shall be provided by the clerk of the court in the Dutch, English, German
or French language.
Article 15 Consequences of the nullification of a bankruptcy order
- 1. As soon as a bankruptcy order has been
nullified as a result of an objection, an appeal or an appeal in cassation,
and, in the first two cases, the time limit for appeal or appeal in cassation
has expired without any appeal, the liquidator ('curator') and
the mail transport company or mail transport companies that have been
designated as provider of general mail services and other certified mail
transport companies as meant in the Mail Act 2009 ('Postwet 2009'),
shall be notified by the clerk of the court which ordered the nullification
of that court order.
- 2. Where a bankruptcy order has been nullified
on an appeal or an appeal in cassation, a similar notification shall be
given to the clerk of the court which rendered the bankruptcy order.
- 3. The court which ordered the nullification
of a bankruptcy order shall also determine the amount of the costs of
bankruptcy and the remuneration of the liquidator ('curator').
It shall charge this amount to the party who requested for the bankruptcy
order or to the debtor, or to both, in a proportion to be determined by
the court. No appeal or other remedy (action) is available against this
decision. An enforcement order shall be issued in this respect for the
benefit of the liquidator ('curator').
Article 15a Bankruptcy order rendered on appeal or appeal in cassation
If the bankruptcy order is rendered on an appeal or an appeal in cassation,
as a result of which the judgment in which the request for a bankruptcy
order was rejected has been nullified, the clerk of the court which rendered
the bankruptcy order shall notify the clerk of the court where the request
was lodged.
Article 15b Conversion of bankruptcy into the Debt Repayment Scheme
- 1. If the bankrupt debtor reasonably is
not to blame for not lodging a request for the application of the Dept
Repayment Scheme within the period meant in Article
3, paragraph 1, or if he has been declared bankrupt upon his own request,
then the District Court may, until the verification meeting has been held
or, where no verification meeting will be held, until the magistrate ('rechter-commissaris')
has given the orders referred to in Article
137a, paragraph 1, remove the bankruptcy order upon the request of
the bankrupt debtor, and simultaneously render a court order for the application
of the Debt Repayment Scheme as referred to in Title
III.
- 2. For such purpose the bankrupt debtor
shall file a request (petition) as meant in Article
284 at the District Court where the request for the bankruptcy order
was lodged. Article 284, paragraph
3, shall not apply in that event.
- 3. Paragraph 1 shall not apply:
a. if the debtor has been declared bankrupt
while the Debt Repayment Scheme was already in effect with regard to him;
b. if the debtor has become bankrupt as a result
of the termination of an applicable Debt Repayment Scheme;
c. if the bankruptcy order was rendered pursuant
to Article 340, paragraph 4.
- 4. Before making a decision, the District
Court may call the bankrupt debtor, the magistrate ('rechter-commissaris')
and the liquidator ('curator') to court in order to be heard.
Article 6, paragraph 2, shall apply
in that event.
- 5. When the request (petition) is awarded,
the District Court shall order the definitive application of the Debt
Repayment Scheme.
- 6. In the notice (publication) required by
Article 293,
the clerk of the court shall give notice that the bankruptcy order has
been removed. If the time for the verification meeting in the bankruptcy
was already set in accordance with Article
108, such notice shall also mention that this verification meeting
shall not be held anymore.
Article 15c Legal actions regarding the conversion of bankruptcy into
the Debt Repayment Scheme
- 1. No appeal or other remedies (actions)
are available for the creditors and other interested parties against a
judgment in which the bankruptcy order has been removed so as to make
the application of the Dept Repayment Scheme possible.
- 2. If the request for the application of
the Dept Repayment Scheme has been rejected by the court, then the bankrupt
debtor has a right to lodge an appeal against this decision within eight
days after the date of that decision. An appeal is made by means of a
request (petition) lodged with the clerk of the Court of Appeal that must
be seized to hear the matter. The clerk of the Court of Appeal shall notify
the clerk of the District Court without delay that such a request (petition)
has been lodged.
- 3. The presiding judge of the Court of Appeal
shall immediately set the date and hour for the hearing, which is to be
held within twenty days from the date on which the request (petition)
was lodged. The Court of Appeal shall give its judgment no later than
eighth days after the day on which the hearing on the request was held.
The clerk of the Court of Appeal shall notify the clerk of the District
Court without delay of the judgment of the Court of Appeal.
- 4. If the Court of Appeal upholds (acknowledges)
the declaration of bankruptcy, the bankrupt debtor may lodge an appeal
in cassation within eight days from the date of the judgment of the Court
of Appeal. An appeal in cassation is made by means of a request (petition)
lodged with the clerk's office of the Supreme Court. The presiding judge
of the Supreme Court shall immediately set the date and hour for the hearing.
The clerk of the Supreme Court shall notify the clerk of the District
Court without delay of the appeal in cassation and of the decree (decision)
of the Supreme Court.
- 5. As long as no decision has been given
on a request (petition) as referred to in Article
15b, paragraph 2, and, provided that the application of the Debt Repayment
Scheme has not been ordered, no consultation for a final arrangement (composition)
in the bankruptcy may take place and no distribution to creditors may
be made pending the appeal or appeal in cassation.
Article 15d Acts performed during bankruptcy remain valid after a conversion
into the Debt Repayment Scheme
- 1. If the bankruptcy order is removed and
simultaneously a court order for the application of the Debt Repayment
Scheme has been rendered, the following shall apply:
a. juridical acts performed by the liquidator
('curator') during bankruptcy shall remain valid and binding;
b. estate debts*) which arose
during bankruptcy shall be treated as estate debts*)
for the application of the Debt Repayment Scheme;
c. claims submitted by creditors during the
bankruptcy shall be treated as claims submitted for the application of
the Debt Repayment Scheme.
- 2. The commencement of the time periods mentioned
in Articles 43
and 45 shall be calculated as of
the date of the declaration of bankruptcy.
*) Estate debts are debts which are
made by or with the consent of the liquidator for account of the liquidation
estate; the involved creditor has a preferential claim (estate claim)
that must be satisfied first from the assets of the liquidation estate.
Article 16 Termination of the bankruptcy because of insufficient assets
- 1. Where the available assets are not sufficient
to pay the bankruptcy costs and the other estate debts*),
the District Court may order, upon a proposal of the magistrate ('rechter-commissaris')
and after having heard the creditors committee, if any, that the bankruptcy
proceedings shall be free of charges or, after having heard or duly summoned
the bankrupt debtor, that the bankruptcy is terminated. In the latter
case the court order shall be pronounced in open court.
- 2. A court which orders the termination of
the bankruptcy shall also determine the amount of the bankruptcy costs
and, if there are grounds for doing so, the remuneration of the liquidator
('curator'). It shall charge these amounts to the debtor. They
will have priority over all other debts.
- 3. No right of appeal or other remedies (actions)
are available against a court order as meant in the previous paragraph.
An enforcement order shall be issued in this respect for the benefit of
the liquidator ('curator').
- 4. In derogation from what has been provided
in paragraph 2, the costs of publications which have to be made pursuant
to the present Title (Title I), shall be borne by the State to the extent
that these costs cannot be paid from the liquidation estate. The clerk
of the court which ordered the termination of the bankruptcy shall procure
the payment of the amount determined by the court to be charged to the
State.
*) Estate debts are debts which are
made by or with the consent of the liquidator for account of the liquidation
estate; the involved creditor has a preferential claim (estate claim)
that must be satisfied first from the assets of the liquidation estate.
Article 17 Exemption from court fees
An order that the bankruptcy proceedings are free of charge results in
an exemption from court fees.
Article 18 Termination of the bankruptcy; publication
The court order in which the bankruptcy is terminated, shall be published
in the same way as the bankruptcy order, and the debtor and creditors
may appeal against it in the same way and within the same periods as provided
for with regard to a judgment rejecting a bankruptcy order. If, within
three years after such termination, a new request (petition) for a bankruptcy
order is lodged, then the debtor or petitioner must demonstrate that there
are sufficient assets to cover the costs of bankruptcy.
Article 19 Publication in the bankruptcy registers of the District Court
- 1. The clerk of each District Court shall
keep a public register in which he registers, for each bankruptcy separately,
the following data in the following sequence, with mention of the date
of registration:
1° an extract from the court decisions in which a debtor has been
declared bankrupt or in which such a bankruptcy has been removed or terminated;
2° the brief content of a final arrangement (composition) with creditors,
if any, and the sanctioning (approval) thereof by the court;
3° the rescission of the final arrangement (composition) with creditors;
4° the amount of the distributions made during the winding up (liquidation);
5° the termination of the bankruptcy pursuant to Article
15b or Article 16;
6° the rehabilitation.
- 2. The structure and content of the register
shall be regulated by Order in Council.
- 3. The clerk of the court must permit public
inspection of the register at no cost and provide an extract from the
register against payment.
- 4. On behalf of the central register referred
to in Article 19a, the clerk of
the court shall sent the data meant in paragraph 1 under point (1°)
up to and including point (6°) to the Minister of Justice or to the
body designated for this purpose by Order in Council.
Article 19a Central bankruptcy register
- 1. A central register is kept by the Minister
of Justice or, where pursuant to Article
19, paragraph 4, another body has been designated for this purpose,
by that body, in which the data mentioned in Article
19, paragraph 1, under point (1°) up to and including point (6°),
shall be registered.
- 2. Further provisions regarding the structure
and content of that register are regulated by Order in Council.
- 3. Everyone may inspect the central register
at no charge and may obtain extracts from it against payment
Article 19b Registrations to be made in international insolvency proceedings
In the situation meant in Article
14, paragraph 4, the data with regard to the insolvency proceedings
meant in that paragraph shall be registered by the clerk of the District
Court at the Hague in the register referred to in Article
19, paragraph 1, as well as in the central register referred to in
Article 19a, paragraph 1.
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