Bankruptcy
Act
TITLE 1 BANKRUPTCY
Chapter 11A The definite character of the settlement of payments and of
transferable security transactions in payment and settlement systems
Article 212a Definitions
For the purpose of the present Chapter and Chapter 11AA:
a. 'institution' shall mean:
1° a bank as meant in Article 1:1 of the Financial Supervision
Act;
2° a financial institution that has obtained a supervisory status
certificate as meant in Article 3:110, paragraph 1, of the Financial Supervision
Act;
3° an investment firm as meant in Article 1:1 of the Financial Supervision
Act;
4° a central counterparty, which obtains a credit balance in financial instruments
as a result of transfer orders within the framework of its participation
in the system;
5° public authorities or publicly guaranteed enterprises;
6°. any party as meant in Article 3:4 of the Financial Supervision
Act having a licence as meant in Article 2:11 of the Financial Supervision
Act;
7°. a clearing institution as meant in Article 1:1 of the Financial
Supervision Act;
8°. the one who has acquired a license on the basis of Article 3:4 of the Financial Supervision Act.
b. 'system' shall mean:
1° a system designated by the Minister of Finance by virtue of Article
212d;
2° a formal agreement governed by the law of a Member State of the
European Union and registered in another Member State of the European
Union with the Commission of the European Communities as a system as defined
in Directive No. 98/26/EC of the European Parliament and of the Council
of the European Union of 19 May 1998 (OJEC L 166);
c. 'central counterparty'
shall mean: an entity interposed between the institutions which participate
in a system, that acts as the exclusive counterparty of these institutions
with regard to their transfer orders;
d. 'settlement agent' shall mean:
an entity which places settlement accounts at the disposal of institutions
or central counterparties participating in a settlement system through
which transfer orders within such systems are settled;
e. 'clearing house' shall mean: an
entity responsible for the netting of positions of institutions, a possible
central counterparty or a possible settlement agent;
f. 'participant' shall mean:
an institution, a central counterparty, a settlement agent, a system operator
or a clearing house;
g. [repealed april 2011]
h. ‘central bank’ shall
mean: a central bank of a Member State of the European Union, the central
bank of another State which is a party to the Agreement on the European
Economic Area or the European Central Bank;
i. 'branch office' shall
mean: a permanent subdivision of an institution, which subdivision in
itself is not a separate legal person and which is situated in another
State than the State of the official seat of the institution from which
it forms a part;
j. 'financial instrument' shall mean:
a financial instrument as meant in Article 1:1
of the Financial Supervision Act.
k. 'transfer order' shall mean: any
order by a participant to place an amount of money at the disposal of
a recipient by means of a book entry on the accounts of a bank,
a central bank, a central counterparty or a settlement agent, or any order
which results in the assumption or discharge of a payment obligation as
defined by the rules of the system, or an order by a participant to transfer
the title to, or interest in, one or more financial instruments by means of a book
entry on a register, or otherwise;
l. 'insolvency proceedings'
shall mean: any collective measure provided for by the law of a Member
State or a third country, either to wind up the participant or to reorganise
it, where such measure involves the suspending of, or imposing limitations
on, transfers and payments;
m. 'netting' shall mean:
the conversion into one net claim or one net obligation of claims and
obligations resulting from transfer orders which a participant or participants
either issue to, or receive from, one or more other participants with
the result that only a net claim can be demanded or a net obligation owed;
n. 'settlement account' shall
mean: an account with a central bank, a settlement agent or a central
counterparty used to hold funds and financial instruments and to settle transactions
between participants in a system;
o. 'business day' shall mean
the period for settlement, either during the day or during the night,
which comprises all events that occur during the business cycles of the
system.
p. 'interoperable systems' shall mean
two or more systems in regard of which the system operators have made
a mutual arrangement for the execution between the systems of transfer
orders;
q. 'system operator' shall mean a
system operator assigned by the Minister of Finance under Article 212d.
Article 212b Derogation from certain provisions of the Bankruptcy Act
- 1. In derogation from Articles 23 and 35,
a declaration of bankruptcy of a participant shall not have retroactive
effect to the beginning of the day on which it was pronounced in regard
of a by that participant prior to the moment of its declaration of bankruptcy
issued transfer orders, settlement orders or any payment which results
from such order, delivery, settlement or any other juridical act required
for a complete execution of the order in the system or rights and duties
which arise for a participant due to or in connection with its participation
in the system.
- 2. In derogation from Article 63a, the cooling-off
period does not apply to the right to take recourse against the assets
of the liquidation estate or to claim the handing over of assets which
are under control of the bankrupt debtor or liquidator ('curator'),
nor to assets to which such rights relate, if such rights have been granted
to a central bank or, in connection with a participation in the system,
to another participant in the system.
- 3. Articles 23, 24, 35, 53, paragraph 1,
and 54, paragraph 2, of the present Act, and Article 72, introduction
and under (a), of Book 3 of the Civil Code, shall not affect third parties
with regard to any transfer orders, netting orders or any payment which
results from such orders, transfer, netting or any other legal act required
fully to execute such orders if these have been issued by a participant
after the time of declaration of bankruptcy of such participant, and if
the orders are executed in the system within one business day, as described
in the rules of the system, during which the declaration of bankruptcy
occurred and the system operator can prove that he was not aware, nor
should have been aware, of the declaration of bankruptcy at the time on
which these orders became irrevocable.
- 4. Paragraph 1 and 3 shall apply accordingly
to the granting and the exercise of a recovery right as referred to in
paragraph 2 as well as in case of a bankruptcy of a system operator of
an interoperable system who is not a participant.
- 5. Where it concerns interoperable systems,
each system shall within its own rules establish the moment of input and
the moment of irrevocability in such a way that it is ensured as much
as possible that the rules of all interoperable systems are coordinated
in this regard. Unless this has been explicitly defined in the rules of
the systems which form a part of the interoperable system, the rules of
other systems with which a system is interoperable, shall not affect the
rules used within that system for the moment of input and irrevocability.
Article 212c Notification of the bankruptcy of a participant
- 1. The clerk of the court shall notify the
Dutch Central Bank ('De Nederlandsche Bank NV') immediately
of the declaration of bankruptcy.
- 2. The Dutch Central Bank ('De Nederlandsche
Bank NV') shall immediately thereafter notify the systems designated
by the Minister of Finance pursuant to Article 212d and the competent
authorities of the other Member States of the European Union and of the
other States which are a party to the Agreement on the European Economic
Area and the European Systemic Risk Board and the European Securities and Markets Authority of the declaration of bankruptcy.
Article 212d Formal agreement between three or more participants designated
as a system
- 1. The Minister of Finance, having heard
the Dutch Central Bank ('De Nederlandsche Bank NV'), may designate
as system operator and the corresponding system: a formal agreement between
three or more participants - the system operator, a settlement agent,
a central counterparty, a clearing house or an indirect participant not
counted in -, with common rules and standard procedures for the clearing
and execution of transfer orders between the participants governed by
the law of a Member State of the European Union elected by the participant,
provided that:
a. the participants have designated Dutch law
as the law applicable to that agreement, and;
b. at east one of the participants has its
official seat in the Netherlands.
As system operator may be designated an entity or entities that is or
are legally liable (responsible) for the functioning (operation) of a
system.
- 2. If this is necessary, having regard to
avoid risks in the system, the Minister of Finance, having heard the Dutch
Central Bank ('De Nederlandsche Bank NV'), may designate as a
system a formal agreement between two participants - a settlement agent,
a central counterparty, a clearing house or an indirect participant not
counted in -, with common rules and standard procedures for the execution
of transfer orders between the participants governed by the law of a Member
State elected by the participants in which at least one of the participants
has its principal establishment (official seat).
- 3. An agreement concluded between interoperable
systems does not form a system.
- 4. The order of the Minister of Finance
may provide for regulations which shall apply to the designation of a
system and to the designation of a system operator.
- 5. The system operator shall notify the
Minister of Finance of the institutions which participate, directly or
indirectly, in the system and of any commencement or termination of participation
by an institution in the system.
- 6. A notice of an order referred to in paragraph
1 shall be published in the Government Gazette .
- 7. The Minister of Finance shall report the
designated systems to the European Securities and Markets Authority.
- 8. Upon request, an institution shall notify
any party with a legitimate interest of the systems which participate
in the institution and shall provide information on the important rules
applicable to the functioning (operating) of the system.
Article 212e Applicable law when insolvency proceedings are opened
If insolvency proceedings are opened against an institution, its rights
and obligations arising from or in connection with its participation in
that system shall be governed by the law governing such system.
Article 212f [repealed on 01-05-2008]
Chapter 11AA Bankruptcy of a bank
§ 1. Banks seated in the Netherlands
and banks seated outside the European Economic Area with
a branch office in the Netherlands
Article 212g Definitions
- 1. For the purpose of the present Chapter
(Chapter 11AA):
a. 'bank' shall mean: a bank as meant
in Article 1:1 of the Financial Supervision Act;
b. 'winding-up proceedings' shall
mean: collective proceedings, including insolvency proceedings, opened
in a Member State, involving the realisation of the assets of a bank and
the distribution of the sale proceeds in the applicable manner to the
creditors, shareholders or members, and which necessarily includes the
involvement of administrative or judicial authorities, including collective
proceedings which are ended through a judicial arrangement (composition)
or another measure with the same purpose.
c. 'Member State' shall mean:
a State that is a Member of the European Union as well as a State, not
being a Member State of the European Union, that is a party to the Agreement
on the European Economic Area (Trb. 1992, 132);
d. 'home Member State' shall
mean: when the bank is a legal person: the Member State where the official
seat of the bank is located; when the bank is not a legal person: the
Member State where the central headquarters of the bank are located;
e. 'competent authority' shall
mean: a public authority or judicial institution that is competent in
winding-up proceedings;
f. 'supervisory authority' shall
mean: the institution which, by or pursuant to the law of a Member State,
is charged to exercise supervision over the credit system;
g. 'liquidator' shall mean:
the liquidator or any other person or body designated by the competent
authorities of another Member State than the Netherlands or by or by the
governing bodies of the bank for the purpose of administering the winding-up
proceedings;;
h. 'financial instruments' shall
mean: the instruments meant in Article 1:1 of the Financial Supervision
Act.
i. 'deposit' shall mean: a deposit
as meant in Article 1 of the Financial Supervision Act;
j. 'guaranteed deposit' shall mean:
a deposit to the extent that is eligible for a compensation by virtue
of the deposit guarantee scheme meant in Article 3:259, paragraph 2, of
the Financial Supervision Act;
k. 'deposit agreement' shall mean:
the agreement on the basis of which the holder of a deposit holds a deposit
at the bank;
l. 'acquiring party' shall mean: the
person who takes over deposit agreements, assets and liabilities other
than on the basis of a deposit agreement, the person who is prepared to
such take over and the person who examines whether he is prepared to do
so.
- 2. For the purpose of the present Chapter
(Chapter 11AA) a bank shall be seated in:
a. the State where its seat is located, if
it concerns a legal person which possesses an official seat in accordance
with the applicable law, and;
b. the State where its central headquarters
are actually located and where its Board of Directors resides if it concerns
another bank than the one meant under (a).
Article 212h Application to credit institutions seated in another Member
State
-1. In derogation from Article 2, paragraph
1, a declaration of bankruptcy of a credit institution seated in the Netherlands
shall be pronounced by the District Court of Amsterdam.
- 2. A credit institution seated in another
EU Member State than the Netherlands that has acquired a license there,
cannot be declared bankrupt in the Netherlands.
- 3. In derogation from Article 2, paragraph
2 up to and including paragraph 4, paragraph 1 of the present Article
shall apply to the declaration of bankruptcy of:
a. a credit institution seated in another EU
Member State than the Netherlands that has not acquired a license there
and that conducts its business from a branch office in the Netherlands,
and;
b. a credit institution not seated in EU Member
State that conducts its business from a branch office in the Netherlands.
Article 212ha Request for a bankruptcy of a licensed bank
- 1. When the Dutch Central Bank ('De Nederlandsche
Bank N.V.') concludes, in regard of a bank having a license as meant
in Article 2:11 of the Financial Supervision Act, that there are signs
of dangerous developments with respect to the equity (total assets minus
liabilities), solvency or liquidity of that bank and it is reasonable
foreseeable that these developments will not sufficiently or not in time
take a turn for the better, it may request the District Court of Amsterdam
for a declaration of bankruptcy in respect of that bank.
- 2. No other person than the Dutch Central
Bank ('De Nederlandsche Bank N.V.') or than the administrator
appointed under an emergency regulation is able to request for the bankruptcy
of a bank which has received a licence of the Dutch Central Bank ('De
Nederlandsche Bank N.V.').
- 3. A bank that has received a licence of
the Dutch Central Bank ('De Nederlandsche Bank N.V.') may request
for its own bankruptcy. In that case the District Court shall provide
the Dutch Central Bank ('De Nederlandsche Bank N.V.') the opportunity
to be heard before it decides upon the request.
Article 212hb Request for a bankruptcy of a non-licensed bank
Where the interests of the joint creditors in the settlement of a bank
seating in the Netherlands but not having obtained a license of the Dutch
Central Bank ('De Nederlandsche Bank N.V.'), requires a particular
provisional measure, the District Court of Amsterdam may, upon the request
of the Dutch Central Bank ('De Nederlandsche Bank N.V.'), declare
a bankruptcy.
Article 212hc Submission of a transfer plan
When making the request, the Dutch Central Bank ('De Nederlandsche
Bank N.V.') may submit a transfer plan as referred to in Article
3:159c, paragraph 2, beginning and under (a), of the Financial Supervision
Act, and ask for the approval of that plan.
Article 212hd Information duty of the Dutch Central Bank
The Dutch Central Bank ('De Nederlandsche Bank N.V.') shall sent
a copy of its petition to the bank and shall give knowledge of the content
thereof to the supervising authorities of other Member States where a
branch office of that bank is located or to which services have been provided
from the bank’s branches in another Member State.
Article 212he Directions for the District Court when receiving a request
for bankruptcy
The request of the Dutch Central Bank ('De Nederlandsche Bank N.V.')
or of the bank itself for a declaration of bankruptcy, shall be taken
into consideration by the District Court with the utmost speed in a non-public
hearing which is based on an administration of justice for civil proceedings,
as far as the provisions of the present act do not derogate from that
administration of justice.
Article 212hf Possible means of defence of the bank
- 1. The bank may, after having had the opportunity
to be heard, defend itself against:
a. decisions as referred to in Article 3:159d,
paragraph 2, of the Financial Supervision Act;
b. decisions as referred to in Article 3:159f,
paragraph 1, of that Act;
c. decisions as referred to in Article 1:75
and 1:76 of that Act that have been taken after the Dutch Central Bank
('De Nederlandsche Bank N.V.') has made an announcement as meant
in Article 3:159d, paragraph 1, of that Act;
d. the conclusion of the Dutch Central Bank
('De Nederlandsche Bank N.V.') that there is a situation as meant
in Article 212ha, paragraph 1.
- 2. Where a bank has defended itself against
a decision or conclusion as referred to in paragraph 1, such defence shall
only be declared valid by the District Court if the Dutch Central Bank
('De Nederlandsche Bank N.V.') reasonably could not have come
to that decision or conclusion.
Article 212hg Declaration of bankruptcy / approval of the transfer plan
- 1. The District Court shall render a bankruptcy
order if, after a brief investigation, a situation as referred to in Article
212ha, paragraph 1, appears to be at hand.
- 2. Where the Dutch Central Bank ('De
Nederlandsche Bank N.V.') has submitted a transfer plan as referred
to in Article 212hc, the District Court shall approve that plan, unless
the price mentioned therein or the way of assessment of the price which
the acquiring party is prepared to pay, is not, in view of the circumstances,
a reasonable price or a reasonable way of assessment. In determining whether
the price or the way of assessment is reasonable, account shall be taken
of the bank’s perspective for the future in a situation where the
transfer plan would not have been approved.
- 3. Without prejudice to paragraph 2, the
District Court shall approve the plan with respect to the transfer of
assets and liabilities, unless the creditors with a debt-claim against
the bank would be harmed as a result.
Article 212hh Appointment of bankruptcy liquidators / publication of the
bankruptcy
- 1. When rendering the bankruptcy order, the
District Court shall appoint one of its members as Magistrate, and also
one or more bankruptcy liquidators. The Dutch Central Bank ('De Nederlandsche
Bank N.V.') may propose one or more bankruptcy liquidators.
- 2. If the request is awarded, the bankruptcy
order shall be rendered at a public hearing and an abstract thereof shall
be announced by the bankruptcy liquidator in the Law Gazette, the Official
Journal of the European Union and at least in two national newspapers,
to be designated by the court, of the Netherlands and of each Member State where the bank has
a branch office or to which the bank performs services. The abstracts
shall mention the name and seat of the bank, the domicile or office of
the bankruptcy liquidator and the date of the bankruptcy order. The publication
in the national newspapers is made in the official language or languages
of the relevant Member State. The publication in the Official Journal
of the European Union and in the national newspapers of every Member State
where the bank has a branch office or to which it performs services, shall
additionally mention that the bankruptcy, besides exceptions, is governed
by Dutch law, the legal grounds for the bankruptcy, that the Dutch Central
Bank ('De Nederlandsche Bank N.V.') is the competent supervisory
authority and also the expiring date for lodging an appeal in cassation
against the bankruptcy order, with mention of the address of the Dutch
Supreme Court and of the subject of the bankruptcy order.
Article 212hi Immediate enforceability / appeal
- 1. The bankruptcy order meant in Article
212hb or 212hg, paragraph 1, is enforceable immediately.
- 2. In derogation from Article 8, paragraph
1, no appeal is open against the declaration of bankruptcy if the District
Court has awarded also a request for the approval of a transfer plan as
referred to in Article 212hc.
- 3. Article 10 is not applicable.
Article 212hj Application of provisions of the Financial Supervision Act
Articles 3:159k, 3:159l and 3:159p of the Financial Supervision Act shall
apply accorindingly.
Article 212hk Additional submission of a transfer plan
- 1. In the event that the Dutch Central Bank
('De Nederlandsche Bank N.V.'), when lodging its request for
a declaration of bankruptcy, has not submitted a transfer plan as referred
to in Article 3:159c, paragraph 2, of the Financial Supervision Act or,
where it has submitted such transfer plan but the District Court has rejected
it, the Dutch Central Bank ('De Nederlandsche Bank N.V.') may
prepare still or once again a transfer plan.
- 2. The transfer plan may relate to the transfer
of deposit contracts and assets and liabilities other than those based
on deposit contracts.
- 3. Further rules may be set by or pursuant
to Order in Council in regard of the transfer plan or the preparation
thereof.
Article 212hl Preparation of a transfer plan
- 1. If the Dutch Central Bank ('De Nederlandsche
Bank N.V.') prepares a transfer plan, it shall notify the bankruptcy
liquidator thereof immediately after the start of such preparation.
- 2. After the Dutch Central Bank ('De
Nederlandsche Bank N.V.') has made a notification as referred to
in paragraph 1, it may, without prejudice to what is provided in Articles
5:15 and 5:20 of the General Administrative Law Act, compel the bankruptcy
liquidator:
a. to provide data or information to:
1° an acquiring party mentioned by name by the Dutch Central Bank
('De Nederlandsche Bank N.V.') or to experts assisting that acquiring
party, and;
2° experts mentioned by name by the Dutch Central Bank ('De Nederlandsche
Bank N.V.') who are assisting the Dutch Central Bank ('De Nederlandsche
Bank N.V.') with the preparation of a transfer plan, and;
b. to grant the acquiring party mentioned by
name by the Dutch Central Bank ('De Nederlandsche Bank N.V.')
and the persons mentioned in paragraph 1, under (a), the right to enter
every place of the bank, to the exclusion of dwellings.
- 3. The persons meant in paragraph 2 shall
only make use of the collaboration, data and information as referred to
in paragraph 2 and shall only enter places as referred to in paragraph
2 to the extent that this is reasonably necessary in connection with the
preparation of the transfer plan.
- 4. Article 1:89 of the Financial Supervision
Act shall apply accordingly to persons who have obtained confidential
data and information on the basis of paragraph 2.
- 5. Without prejudice to paragraph 1, it is
prohibited for any person to disclose, whether or not on the basis of
the law or a contract, anything about the preparation of a transfer plan.
- 6. Further rules may be set by or pursuant
to Order in Council in regard of what is provided in paragraph 3, 4 and
5.
- 7. The bankruptcy liquidator, the bank and
an enterprising forming a part of the same group as the bank which is
supervised by the Dutch Central Bank ('De Nederlandsche Bank N.V.'),
and the persons meant in paragraph 2, and also the acquiring party, are
excluded from all obligations imposed by or pursuant to law in regard
of the publication of data and information as referred to in paragraph
2, all until the moment that the transfer plan is approved.
Article 212hm Required cooperation of the bankruptcy liquidator
After the bankruptcy liquidator has received a notification as meant in
Article 212hl, paragraph 2, he shall give full cooperation to the preparation
of the transfer plan.
Article 212hn Request for the approval of an additional transfer plan
- 1. Articles 3:159g up to and including 3:159p
of the Financial Supervision Act shall apply accordingly.
- 2. If the Dutch Central Bank has prepared
a transfer plan on the basis of Article 212hk, it may request the District
Court of Amsterdam to approve that plan.
Article 212ho Directions to the District Court receiving a request for
the approval of an additional transfer plan
- 1. The request of the Dutch Central Bank
('De Nederlandsche Bank N.V.') for an approval of the transfer
plan, shall be taken into consideration by the District Court with the
utmost speed in a non-public hearing which is based on the administration
of justice for civil proceedings, as far as the provisions of the present
act do not derogate from that administration of justice.
- 2. The District Court shall approve the transfer
plan, unless the price mentioned therein or the way of assessment of the
price which the acquiring party is prepared to pay, is not, in view of
the circumstances, a reasonable price or a reasonable way of assessment.
Article 212hp Implementation of the approved transfer plan by the bankruptcy
liquidator
The bankruptcy liquidator shall implement the transfer plan as soon as
possible after it has been approved by the District Court.
Article 212hq Request for the adjustment of an already approved transfer
plan
- 1. The Dutch Central Bank ('De Nederlandsche
Bank N.V.') may, in consultation with the bankruptcy liquidator,
request the District Court of Amsterdam for adjustment of an already approved
transfer plan. Article 3:159ij, paragraph 2 and 3, of the Financial Supervision
Act shall apply accordingly to the approval of such adjustment.
- 2. In the event that the District Court does
not approve the adjustment, it shall reject the request for an adjustment
of the transfer plan and the transfer plan shall remain in force unchanged.
- 3. Articles 212hd up to and including 212hh
and 212hk, paragraph 2, up to and including 212hp, shall apply accordingly
to an adjustment of the transfer plan.
Article 212hr Branch office of a bank with its seat in a non-Member State
Articles 212ha up to and including 212hq shall apply accordingly to a
branch office located in the Netherlands of a bank having its seat in
a State not being a EU Member State.
Article 212i Request for a bankruptcy filed by the Dutch Central Bank
A petition (request) for a declaration of bankruptcy regarding a credit
institution, may be lodged by the Dutch Central Bank ('De Nederlandsche
Bank NV') without the assistance of an advocate (solicitor admitted
to the Bar).
Article 212j Dutch Central Bank shall inform the credit institution and
other Member States of the bankruptcy petition
The Dutch Central Bank ('De Nederlandsche Bank NV') shall sent
a copy of the bankruptcy petition it has lodged to the involved credit
institution and shall give notice of the content of that petition to:
a. the supervisory authorities of other Member
States where the credit institution has a branch office or where it provides
services which are performed from offices located in the European Union,
if it concerns a credit institution seated in the Netherlands;
b. the supervisory authorities of the other
Member States where the involved credit institution provides services
which are performed from a branch office located in the Netherlands, if
it concerns a credit institution seated outside the European Union.
Article 212k Opinion of the Dutch Central Bank; withdrawal of licence
The District Court may only give a decision on a petition (request) for
a declaration of bankruptcy regarding a credit institution, , including
the situation in which the credit institution itself has lodged such a
petition (request), after it has granted the Dutch Central Bank ('De
Nederlandsche Bank NV') the opportunity to express its opinion on
the matter.
Article 212l Simultaneous request for a transfer regulation or an emergency regulation
- 1. When a request for a transfer regulation
or an emergency regulation within the meaning of the Financial Supervision
Act is pending at the same time as a petition (request) of the bank itself
to reach its own bankruptcy, then the proceedings on the request for a
declaration of bankruptcy shall be stayed until a decision on the request
for a transfer regulation, respectively, an emergency regulation is given.
- 2. Where the District Court orders a transfer
regulation or, respectively, an emergency regulation, the request of the
bank for its own bankruptcy shall cease to exist by operation of law.
Article 212m Declaration of bankruptcy after the issuance of an emergency
order
- 1. After the District Court has order an
emergency regulation as meant in Article 3:160 of the Financial Supervision
Act, it may in derogation from Article 1, upon a request of the legal
administrators or upon a recommendation of the magistrate ('rechter-commissaris')
or of its own motion, after having heard the Dutch Central Bank ('De
Nederlandsche Bank NV'), declare the involved credit institution
with a seat in the Netherlands bankrupt, if it appears that the equity
(total assets minus liabilities) of that credit institution is negative
and that the objective for which the court had granted its authorisation
under the emergency regulation has been reached or cannot be reached anymore
or, when no authorisation had yet been granted under the emergency regulation,
that there is no reasonable prospect that such authorisation will make
it possible to reach that objective.
- 2. The emergency regulation and authorisation
lose their effect by operation of law in the event that the financial
enterprise meant in paragraph 1 is declared bankrupt
- 3. In the situation meant in the previous
paragraph as well as when the declaration of bankruptcy is proclaimed
within four weeks after the ending of the emergency regulation, the following
provisions shall apply:
a. the date as of which the periods meant in
Articles 43 and 45 start to run, shall be calculated as of the date of
the issuance of the declaration meant in Article 3:160, paragraph 1 or
2, or Article 3:206, paragraph 1 or 2, of the Financial Supervision Act;
b. estate debts*), arisen after the issuance
of the before meant declaration, shall be regarded in the bankruptcy as
well as estate debts;
c. the date as of which the periods meant in
Article 138, paragraph 6, and 248, paragraph 6, of Book 2 of the Civil
Code start to run, shall be calculated as of the date of the special provisional
measure;
d. acts meant in Article 3:175 of the Financial
Supervision Act, performed by or in the name of the legal administrators
pursuant to that Article during the period that the emergency regulation
was in effect, will be regarded as acts of the liquidator ('curator');
e. the liquidation estate is not liable for
obligations of the credit institution, entered into in violation with
Article 3:175, paragraph 1 and 6, of the Financial Supervision Act during
the period that the emergency regulation was in effect, unless the liquidation
estate has profited from these obligations;
f. if the implementation of the guarantee scheme
has started at a moment that an emergency regulation was in effect already,
it will be continued during the bankruptcy on the basis of Part 3.6.5
of the Financial Supervision Act, and;
g. if the District Court has approved the transfer
plan by ordering a transfer regulation as meant in Article 3:159u of the
Financial Supervision Act or when ordering the emergency regulation, the
bankruptcy liquidator shall implement the transfer regulation, respectively,
shall continue the implementation of the transfer plan started by the
acquiring party or administrator.
- 4. The provisions of Title 1 and Article
362 shall apply accordingly
*) 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 212ma Applicability of Part 3.5.6 of the Financial Supervision
Act
Part 3.5.6 of the Financial Supervision Act shall apply accordingly when
a credit institution has been declared bankrupt while Article 212m, paragraph
1 or 3, has not been applied.
Article 212n Providing information about the proclamation of a bankruptcy
order
After the notification meant in Article 212c, the Dutch Central Bank ('De
Nederlandsche Bank NV') shall inform, without delay, the supervisory
authorities of all other Member States about the proclamation of a bankruptcy
order and the possible consequences thereof in the relevant case
Article 212o Publication of the bankruptcy in other Member States
- 1. Without prejudice to Article 14, paragraph
3, the liquidator ('curator') shall publish an extract of the
bankruptcy order and, if a declaration as meant in Article 3:160, paragraph
1 or 2, or Article 3:206, paragraph 1 or 2, of the Financial Supervision
Act has been withdrawn, an extract of that withdrawal in the Official
Journal of the European Union, as well as in at least two national daily
newspapers in each other Member State than the Netherlands where the credit
institution has a branch office or to where it provides services.
- 2. In addition to the data meant in Article
14, the liquidator ('curator') shall mention that, apart from
exceptions, the law of the Netherlands is applicable.
- 3. The liquidator ('curator') may
request for the registration of the bankruptcy in a public register in
another Member State.
- 4. De costs of registration made pursuant
to paragraph 3 are an estate debt*).
*) 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 212p Providing information to all known creditors
- 1. The liquidator ('curator') shall
immediately notify all known creditors in writing of the bankruptcy order.
- 2. The liquidator ('curator') who
has notified all known creditors on the basis of Article 109 of the orders
of the magistrate ('rechter-commissaris') meant in that Article,
shall notify them at the same time as well of the consequences when a
claim is submitted after the period referred to in Article 108, paragraph
1, under (1°) has expired, and that the creditors, including those who
may exercise a privilege or a real security right, must submit their claims
to the liquidator ('curator') with mention, where this is relevant, that
they have to invoke their privilege or real security right explicitly.
- 3. The liquidator ('curator') shall
regularly inform all know creditors in an appropriate way of, at least,
the development of the proceedings.
Article 212q Form and language of notifications to be made to known creditors
in other Member States
- 1. The notification meant in Article 212p,
paragraph 1, made to all known creditors with a habitual residence or
domicile in a Member State, shall be made in the Dutch language by means
of a form bearing the heading "Invitation to lodge comments regarding
claims. Time limits" in all the official languages of the European
Union.
- 2. Any creditor who has his habitual residence
or domicile in a Member State may lodge his claim and written comments
in one of the official languages of that Member State, however, making
use of the heading "Lodgement of a claim" («Indiening
van een vordering») or, respectively, “Lodgement of comments
regarding a claim” («Indiening van opmerkingen betreffende
een vordering») in the Dutch language
- 3. The liquidator ('curator') may
demand the provision of a translation in the Dutch language of the document
through which the claim is lodged and of the comments made with regard
to the claim.
Article 212r Protection of third parties who performed in good faith to
the bankrupt credit institution
In derogation from Article 52, paragraph 2, a performance which is made
after the publication of the declaration of bankruptcy regarding a credit
institution which is not a natural person, shall release (discharge) the
performer, in his relation to the liquidation estate, of his debt, if
he proves that he was not aware of the declaration of bankruptcy.
§ 2. Provisions of private international
law
Article 212s Recognition of decisions given in another home Member State
- 1. A decision given in another home Member
State than the Netherlands to open winding-up proceedings with regard
to a credit institution shall be recognized by operation of law.
- 2. Such a decision shall have legal effect
within the Netherlands as of the date that it has legal effect in the
home Member State.
Article 212t Law applicable to winding-up proceedings
The decision to open winding-up proceedings, the winding-up proceedings
themselves and the legal effects of the winding-up proceedings shall be
governed by the law of the Member State where the winding-up proceedings
are opened, unless the law provides otherwise.
Article 212u Real property rights in assets situated in another Member
State
- 1. The decision to open winding-up proceedings
has no affect on a real property right (right in rem) of a creditor or
a third person in an asset or assets - both specific assets and collections
of indefinite assets as a whole which change from time to time –
belonging to the credit institution, which are situated, at the moment
on which the decision to open the winding-up proceedings becomes effective,
within the territory of another Member State than the home Member State.
- 2. For the purpose of paragraph 1, a real
property right (right in rem) shall in any event enclose:
a. the right to dispose of (realise) assets
or have them disposed of (realised) and to obtain satisfaction from the
sale proceeds of or income from those assets, in particular by virtue
of a pledge or a mortgage
b. the exclusive right to have a claim satisfied,
in particular a right guaranteed (secured) by a pledged in respect of
the claim or by a transfer (assignment) of the claim by way of a guarantee
(security);
c. the right to reclaim assets which are held
by any person without a right or title, to demand that such assets are
handed over or to demand the undisturbed enjoyment of such assets;
d. the real property right (right in rem) to
the benefits (fruits) produced by an asset.
- 3. For the purpose of paragraph 1, a right
recorded in a public register that can be upheld against third parties,
on the basis of which a real property right (right in rem) within the
meaning of paragraph 1 may be acquired, shall be equated with a real property
right (right in rem).
- 4. For the purpose of the present Article,
the Member State where an asset is situated shall mean in the event of:
a. registered property and rights in registered
property: the Member State under the authority of which the register is
kept;
b. tangible property (movable things) not covered
by the provision under (a): the Member State within the territory of which
the tangible property is situated
c. claims: the Member State within the territory
of which the debtor of that claim, not being the bankrupt credit institution,
is established (has the centre of his main interests).
Article 212v Retention of title
- 1. In the event that the credit institution
has bought a thing (tangible asset), the decision to open winding-up proceedings
shall not affect the seller's rights based on a retention (reservation)
of title if, at the moment on which the decision to open winding-up proceedings
becomes effective, the thing to which this retention of title relates
is situated within the territory of a Member State other than the home
Member State.
- 2. In the event that the credit institution
has sold a thing (tangible asset), the decision to open winding-up proceedings
shall not constitute a ground for a rescission or termination of the sale
agreement, and the winding-up proceedings shall not prevent the buyer
from acquiring the right of ownership of the bought thing, if that thing,
at the moment on which the decision to open winding-up proceedings becomes
effective, is situated within the territory of a Member State other than
the home Member State.
- 3. Article 212u, paragraph 4, shall apply
accordingly
Article 212w Right to invoke a set-off
If the person, who is a creditor as well as a debtor of the credit institution,
is entitled to set-off his claim against his debt to the credit institution
pursuant to the law applicable to that claim, then the decision to open
winding-up proceedings shall not affect the right to invoke that set-off.
Articles 212x Legal actions which remain available
Articles 212u up to and including 212w do not preclude actions for the
nullification of a null and void or voidable juridical act, nor actions
for the recognition of the ineffectiveness (unenforceability) of a juridical
act on the ground that it has been disadvantageous for (detrimental to)
all the creditors.
Article 212ij Employment agreements
In derogation from Article 212t, the effects of the winding-up proceedings
on employment agreements and similar relationships shall be governed solely
by the law of the Member State that is applicable to that agreement or
relationship.
Article 212z Agreements conferring the right to acquire or make use of
immovable property
In derogation from Article 212t, the effects of the winding-up proceedings
on an agreement conferring the right to acquire or make use of immoveable
property shall be governed solely by the law of the Member State within
the territory of which the immoveable property is situated. The law of
that Member State shall determine whether the involved property is movable
or immovable.
Article 212aa Registered property
In derogation from Article 212t, the effects of the winding-up proceedings
on the right of a credit institution in (to) registered property shall
be determined by the law of the Member State under the authority of which
the register is kept.
Article 212bb Rights and obligations of participants in regulated markets
In derogation from Article 212t, and without prejudice to Article 212hh,
the effects of the winding-up proceedings on the rights and obligations
of participants in a regulated market as meant in Article 1, under (13°)
of Directive 93/22/EEC of the Council of the European Communities of 10
May 1993 on investment services in the securities field (OJ 1993 L 141),
shall be governed solely by the law applicable to that market.
Article 212cc Disposition of registered property, securities and transferable
documents
In derogation from Article 212t, the legal validity of a juridical act
that has been performed non-gratuitously (i.e. for consideration) by the
credit institution after the opening of the winding-up proceedings, through
which act it disposes of registered property or of securities or other
transferable documents which are registered in a statutory prescribed
register or on a statutory prescribed account or which have been placed
in a centralized securities deposit which is governed by the law of a
Member State, shall be governed by the law of the Member State under the
authority of which the register, the account or the deposit is kept or,
where it concerns immovable property, by the law of the Member State within
which territory that immovable property is situated.
Article 212dd Effects of winding-up proceedings on lawsuits pending
In derogation from Article 212t, the effects of the winding-up proceedings
on a pending lawsuit (legal action) concerning an asset of which the credit
institution has lost the administration and availability, shall be governed
solely by the law of the Member State where that lawsuit (legal action)
is pending.
Article 212ee Juridical acts disadvantageous for all creditors; evidence
in rebuttal
Article 212t does not apply to rules of law regarding the question whether
a juridical act, which is disadvantageous for (detrimental to) all creditors,
is null and void or voidable on that ground, nor to rules of law which
determine whether such juridical acts may be invoked (are ineffective
towards one or more other persons), yet only if the person who benefited
from that juridical act proves that:
a. this juridical act is governed by the law
of a Member State other than the home Member State;
b. this applicable law does not allow any means
of challenging that juridical act in the relevant case.
Article 212ff Netting agreement
In derogation from Article 212t, the effects of the winding-up proceedings
on an agreement regarding a netting right as meant in Article 212a, under
(m), shall be solely governed by the law applicable to that agreement.
Article 212gg Agreement to return in future the same number of assets
of the same type
In derogation from Article 212t, and without prejudice to Article 212hh,
the effects of the winding-up proceedings on an agreement under which
one party, the buyer, has engaged himself to transfer back in future the
same quantity of assets of the same type to the seller, shall be governed
solely by the law of the Member State that is applicable to that agreement
Article 212hh Rights in financial instruments
In derogation from Article 212t, the effects of the winding-up proceedings
on the exercise of rights to (in) financial instruments which are registered
in a register or on an account or in a centralized securities deposit
which is kept or located in a Member State, shall be solely governed by
the law of the Member State where that register, account or centralized
securities deposit that has registered the before mentioned rights, is
kept or located.
Article 212ii Powers that a foreign liquidator may exercise within the
Netherlands
- 1. A liquidator from another home Member
State than the Netherlands may exercise the same powers within the Netherlands
as the ones conferred on him pursuant to the law of the home Member State,
except that he has no power to apply an enforcement measure or to give
a decision in legal proceedings or on a dispute. The way in which these
powers may be exercised in the Netherlands is governed by Dutch law.
- 2. The liquidator may appoint other persons
to represent him or to assist him otherwise.
- 3. If persons have been appointed on the
basis of the law of the home Member State to represent the liquidator
or to assist him otherwise, then these persons may exercise within the
territory of Netherlands all powers that have been conferred on them pursuant
to the law of that Member State.
Article 212jj Proof of the liquidator's appointment
- 1. To prove that a person is appointment
in another Member State as liquidator, it is sufficient to present a certified
copy of the original decision appointing him or any other certificate
issued by the competent authority of that Member State.
- 2. The liquidator from another Member State
than the Netherlands shall show, upon request, a Dutch translation of
that copy to the person towards (against) whom he wants to exercise his
powers.
Article 212kk Request of a foreign liquidator to register data in the
bankruptcy register
Upon the request of a liquidator from another Member State than the Netherlands,
the data with regard to the winding-up proceedings, opened in another
Member State than the Netherlands, shall be registered by the clerk of
the District Court of the Hague in the register meant in Article 19, paragraph
1.
Article 212ll Bankruptcy of a branch office of a bank seated
outside the EU and the EEA
Where a bank, which is not seated in a State of the European
Union nor in a State that is a party to the Agreement on the European
Economic Area, but which has a branch office in the Netherlands, has been
declared bankrupt, the clerk of the District Court shall, without delay,
notify the Dutch Central Bank ('De Nederlandsche Bank NV') of
the content of the bankruptcy order and of the possible consequences of
this bankruptcy in the relevant case. Subsequently, the Dutch Central
Bank ('De Nederlandsche Bank NV') shall, without delay, notify
the competent authorities of the other Member States of the European Union
and of the other States that are a party to the Agreement on the European
Economic Area of the bankruptcy order and of the consequences of the bankruptcy
in the relevant case. The Dutch Central Bank ('De Nederlandsche Bank
NV') shall notify the other Member States of the European Union and
of the other States that are a party to the Agreement on the European
Economic Area of the court order and of the end the declaration of bankruptcy.
Article 212mm Coordination between competent authorities
- 1. Where a bank, which is
not seated in a State of the European Union nor in a State that is a party
to the Agreement on the European Economic Area, but which has a branch
office in the Netherlands as well as in one or more other Member States,
has been declared bankrupt, the District Court and the Dutch Central Bank
('De Nederlandsche Bank NV') shall try to coordinate their activities
with the competent authorities, respectively, with the supervisory authorities
of those other Member States
- 2. In the situation meant in paragraph 1,
the liquidator ('curator') who is appointed in the Netherlands
shall try to coordinate his activities with the liquidators in the other
Member States in which a license is granted to the financial enterprise.
Article 212nn Data not to be included in the reports meant in Article
73
The liquidator ('curator') may not include in the reports meant
in Article 73 any data or information relating to third persons who are
involved or have been involved in attempts to make it possible for the
credit institution to continue its business.
Chapter 11B Bankruptcy of an Insurer
Article 213 Definitions
For the purpose of this Chapter (Chapter 11BB):
a. 'insurer' shall mean: a non-life
insurer or life insurer as meant in Article 1:1 of the Financial Supervision
Act;
b. 'non-life insurance contract' shall
mean: a non-life insurance contract as meant in Article 1:1 of the Financial
Supervision Act;
c. 'life insurance contract' shall
mean: a life insurance contract as meant in Article 1:1 of the Financial
Supervision Act;
d. 'non-life insurer' shall mean:
a non-life insurer as meant in Article 1:1 of the Financial Supervision
Act;
e. 'life insurer' shall mean: a life
insurer as meant in Article 1:1 of the Financial Supervision Act;
f. 'seat' shall mean: the place where
an insurer is established (seated) according to its articles of incorporation
or by-laws or, if it is not a legal person, the place where the head quarters
of the insurer are located;
g. 'branch office' shall mean: any
permanent presence of an insurer, with the exception of its seat, administered
by the staff of the insurer of by an independent person who is authorised
to act permanently on behalf of the insurer;
h. 'winding-up proceedings'
shall mean: collective proceedings, including bankruptcy, opened in a
Member State of the European Union, involving the realisation of the assets
of the insurer and the distribution of the sale proceeds amongst the creditors,
shareholders or members as appropriate, which necessarily involve any
intervention by the administrative or the judicial authorities of a Member
State, including situations in which the collective proceedings are terminated
by a composition (final arrangement with the creditors sanctioned by the
court) or other analogous measures, whether or not they are founded on
insolvency or whether or not they are opened upon an own request (petition)
of the insurer or upon the request (petition) of someone else;
i. 'Member State' shall mean: a State
that is a member of the European Union, or a State, not being a member
of the European Union, that is a party to the Agreement on the European
Economic Area (Trb. 1992, 132);
j. 'home Member State' shall
mean: the Member State where the insurer has its seat;
k. 'competent authority' shall mean:
the administrative or judicial authority that is competent for the winding-up
proceedings;
l. 'supervisory authority' shall mean:
the authority in a Member State charged by or pursuant to law to exercise
supervision on matters of insurances;
m. 'liquidator' shall mean: the liquidator
or any other person or other body appointed by the competent authorities
of another Member State than the Netherlands or by the governing bodies
of the insurer for the purpose of administering the winding-up proceedings;
n. 'insurance claim' shall mean: a
claim resulting from an insurance contract, directly against the insurer
itself;
o. 'emergency regulation' shall mean:
an emergency regulation as meant in Part 3.5.5 of the Financial Supervision
Act;
p. 'acquiring party' shall mean: the
person who takes over the assets and liabilities, the person who is prepared
to do so and the person who examines whether he is prepared to do so.
§ 2 Insurers having its seat in the Netherlands, insurers without
a licence having its seat in another Member State than the Netherlands
and insurers having its seat outside the European Union with a branch
office in the Netherlands.
Article 213a Application to insurers seated in another (Member) State
-1. In derogation from Article 2, paragraph
1, a declaration of bankruptcy of an insurer (insurance company) seated
in the Netherlands shall be pronounced by the District Court of Amsterdam.
- 2. An insurer (insurance company) seated
in another EU Member State than the Netherlands that has acquired a license
there, cannot be declared bankrupt in the Netherlands.
- 3. In derogation from Article 2, paragraph
2 up to and including paragraph 4, paragraph 1 of the present Article
shall apply to the declaration of bankruptcy of:
a. an insurer (insurance company) seated in
another EU Member State than the Netherlands that has not acquired a license
there and that conducts its business from a branch office in the Netherlands,
and;
b. an insurer (insurance company) not seated
in EU Member State that conducts its business from a branch office in
the Netherlands.
Article 213aa Request for a bankruptcy of a licensed insurer
- 1. When the Dutch Central Bank ('De Nederlandsche
Bank N.V.') concludes, in regard of an insurer having a license as
meant in Article 2:226a, 2:27 or 2:54a of the Financial Supervision Act,
that there are signs of dangerous developments with respect to the equity
(total assets minus liabilities), solvency or technical of that insurer
and it is reasonable foreseeable that these developments will not sufficiently
or not in time take a turn for the better, it may request the District
Court of Amsterdam for a declaration of bankruptcy in respect of that
insurer.
- 2. No other person than the Dutch Central
Bank ('De Nederlandsche Bank N.V.') is able to request for the
bankruptcy of an insurer which has received a licence of the Dutch Central
Bank ('De Nederlandsche Bank N.V.').
- 3. An insurer who has received a licence
of the Dutch Central Bank ('De Nederlandsche Bank N.V.') may
request for its own bankruptcy. In that case the District Court shall
provide the Dutch Central Bank ('De Nederlandsche Bank N.V.')
the opportunity to be heard before it decides upon the request.
Article 213ab Request for a bankruptcy of a non-licensed insurer
Where the interests of the joint creditors in the settlement of the enterprise
of an insurer who has not obtained a license of the Dutch Central Bank
('De Nederlandsche Bank N.V.'), requires a particular provisional
measure, the District Court of Amsterdam may, without prejudice to Article
1, paragraph 1, declare a bankruptcy upon the request of the Dutch Central
Bank ('De Nederlandsche Bank N.V.').
Article 213ac Submission of a transfer plan
When making the request, the Dutch Central Bank ('De Nederlandsche
Bank N.V.') may submit a transfer plan as referred to in Article
3:159c, paragraph 2, beginning and under (b), of the Financial Supervision
Act, and ask for the approval of that plan.
Article 213ad Information duty of the Dutch Central Bank
The Dutch Central Bank ('De Nederlandsche Bank N.V.') shall sent
a copy of its petition to the insurer and shall give knowledge of the
content thereof to the supervising authorities of other Member States
where a branch office of that insurer is located or to which services
have been provided from the insurer’s branches in another Member
State.
Article 213ae Directions for the District Court when receiving a request
for bankruptcy
The request of the Dutch Central Bank ('De Nederlandsche Bank N.V.')
or of the insurer himself for a declaration of bankruptcy, shall be taken
into consideration by the District Court with the utmost speed in a non-public
hearing which is based on an administration of justice for civil proceedings,
as far as the provisions of the present act do not derogate from that
administration of justice.
Article 213af Possible means of defence of the insurer
- 1. The insurer may, after having had the
opportunity to be heard, defend itself against:
a. decisions as referred to in Article 3:159d,
paragraph 2, of the Financial Supervision Act;
b. decisions as referred to in Article 3:159f,
paragraph 1, of that Act;
c. decisions as referred to in Article 1:75
and 1:76 of that Act that have been taken after the Dutch Central Bank
('De Nederlandsche Bank N.V.') has made an announcement as meant
in Article 3:159d, paragraph 1, of that Act;
d. the conclusion of the Dutch Central Bank
('De Nederlandsche Bank N.V.') that there is a situation as meant
in Article 213aa, paragraph 1.
- 2. Where an insurer has defended himself
against a decision or conclusion as referred to in paragraph 1, such defence
shall only be declared valid by the District Court if the Dutch Central
Bank ('De Nederlandsche Bank N.V.') reasonably could not have
come to that decision or conclusion.
Article 213ag Declaration of bankruptcy / approval of the transfer plan
- 1. The District Court shall render a bankruptcy
order if, after a brief investigation, a situation as referred to in Article
213aa, paragraph 1, appears to be at hand.
- 2. Where the Dutch Central Bank ('De
Nederlandsche Bank N.V.') has submitted a transfer plan as referred
to in Article 213ac, the District Court shall approve that plan, unless
the price mentioned therein or the way of assessment of the price which
the acquiring party is prepared to pay, is not, in view of the circumstances,
a reasonable price or a reasonable way of assessment. In determining whether
the price or the way of assessment is reasonable, account shall be taken
of the insurer’s perspective for the future in a situation where
the transfer plan would not have been approved.
- 3. When rendering the bankruptcy order, the
District Court shall appoint one of its members as Magistrate, and also
one or more bankruptcy liquidators. The Dutch Central Bank ('De Nederlandsche
Bank N.V.') may propose one or more bankruptcy liquidators.
- 4. If the request is awarded, the bankruptcy
order shall be rendered at a public hearing and an abstract thereof shall
be announced by the bankruptcy liquidator in the Law Gazette, the Official
Journal of the European Union and at least in two national newspapers,
to be designated by the court, of the Netherlands and of each Member State
where the insurer has a branch office or to which the insurer performs
services. The abstracts shall mention the name and seat of the insurer
involved, the domicile or office of the bankruptcy liquidator and the
date of the bankruptcy order. The publication in the national newspapers
is made in the official language or languages of the relevant Member State.
The publication in the Official Journal of the European Union and in the
national newspapers of every Member State where the insurer has a branch
office or to which it performs services, shall additionally mention that
the bankruptcy, besides exceptions, is governed by Dutch law, the legal
grounds for the bankruptcy, that the Dutch Central Bank ('De Nederlandsche
Bank N.V.') is the competent supervisory authority and also the expiring
date for lodging an appeal in cassation against the bankruptcy order,
with mention of the address of the Dutch Supreme Court and of the subject
of the bankruptcy order.
Article 213ah Immediate enforceability / appeal
- 1. The bankruptcy order meant in Article
213ab or 213ag, paragraph 1, is enforceable immediately.
- 2. In derogation from Article 8, paragraph
1, no appeal is open against the declaration of bankruptcy if the District
Court has awarded also a request for the approval of a transfer plan as
referred to in Article 213ac.
Article 213ai Implementation of the approved transfer plan by the bankruptcy
liquidator
If the District Court has approved the transfer plan, the bankruptcy liquidator
shall implement it as soon as possible after the District Court has declared
the bankruptcy.
Article 213aj Additional submission of a transfer plan
- 1. In the event that the Dutch Central Bank
('De Nederlandsche Bank N.V.'), when lodging its request for
a declaration of bankruptcy, has not submitted a transfer plan or, where
it has submitted such transfer plan but the District Court has rejected
it, the Dutch Central Bank ('De Nederlandsche Bank N.V.') may
prepare still or once again a transfer plan.
- 2. The transfer plan may relate to the transfer
of assets and liabilities.
- 3. Further rules may be set by or pursuant
to Order in Council in regard of the transfer plan or the preparation
thereof.
Article 213ak Preparation of a transfer plan
- 1. If the Dutch Central Bank ('De Nederlandsche
Bank N.V.') prepares a transfer plan, it shall notify the bankruptcy
liquidator thereof immediately after the start of such preparation.
- 2. After the Dutch Central Bank ('De
Nederlandsche Bank N.V.') has made a notification as referred to
in paragraph 1, it may, without prejudice to what is provided in Articles
5:15 and 5:20 of the General Administrative Law Act, compel the bankruptcy
liquidator:
a. to provide data or information to:
1° an acquiring party mentioned by name by the Dutch Central Bank
('De Nederlandsche Bank N.V.') or to experts assisting that acquiring
party, and;
2° experts mentioned by name by the Dutch Central Bank ('De Nederlandsche
Bank N.V.') who are assisting the Dutch Central Bank ('De Nederlandsche
Bank N.V.') with the preparation of a transfer plan, and;
b. to grant the acquiring party mentioned by
name by the Dutch Central Bank ('De Nederlandsche Bank N.V.')
and the persons mentioned in paragraph 1, under (a), the right to enter
every place of the insurer, to the exclusion of dwellings.
- 3. The persons meant in paragraph 2 shall
only make use of the data and information as referred to in paragraph
2 and shall only enter places as referred to in paragraph 2 to the extent
that this is reasonably necessary in connection with the preparation of
the transfer plan.
- 4. Article 1:89 of the Financial Supervision
Act shall apply accordingly to persons who have obtained confidential
data and information on the basis of paragraph 2.
- 5. Without prejudice to paragraph 1, it is
prohibited for any person to disclose anything about the preparation of
a transfer plan.
- 6. Further rules may be set by or pursuant
to Order in Council in regard of what is provided in paragraph 3, 4 and
5.
- 7. The bankruptcy liquidator, the insurer
and an enterprising forming a part of the same group as the insurer which
is supervised by the Dutch Central Bank ('De Nederlandsche Bank N.V.'),
and the persons meant in paragraph 2, are excluded from all obligations
imposed by or pursuant to law in regard of the publication of data and
information as referred to in paragraph 2, all until the moment that the
transfer plan is approved.
Article 213al Required cooperation of the bankruptcy liquidator
After the bankruptcy liquidator has received a notification as meant in
Article 213ak, paragraph 1, he shall give full cooperation to the preparation
of the transfer plan.
Article 213am Request for the approval of an additional transfer plan
- 1. Article 3:159u of the Financial Supervision
Act shall apply accordingly.
- 2. If the Dutch Central Bank ('De Nederlandsche
Bank N.V.') has prepared a transfer plan on the basis of Article
213aj, it may request the District Court of Amsterdam to approve that
plan.
Article 213an Directions to the District Court receiving a request for
the approval of an additional transfer plan
- 1. The request of the Dutch Central Bank
('De Nederlandsche Bank N.V.') for an approval of the transfer
plan, shall be taken into consideration by the District Court with the
utmost speed in a non-public hearing which is based on the administration
of justice for civil proceedings, as far as the provisions of the present
act do not derogate from that administration of justice.
- 2. The District Court shall approve the transfer
plan, unless the price mentioned therein or the way of assessment of the
price which the acquiring party is prepared to pay, is not, in view of
the circumstances, a reasonable price or a reasonable way of assessment.
Article 213ao Implementation of the approved transfer plan by the bankruptcy
liquidator
The bankruptcy liquidator shall implement the transfer plan as soon as
possible after it has been approved by the District Court.
Article 213ap Request for the adjustment of an already approved transfer
plan
- 1. The Dutch Central Bank ('De Nederlandsche
Bank N.V.') may, in consultation with the bankruptcy liquidator,
request the District Court of Amsterdam for adjustment of an already approved
transfer plan.
- 2. In the event that the District Court does
not approve the adjustment, it shall reject the request for an adjustment
of the transfer plan and the transfer plan shall remain in force unchanged.
- 3. Articles 213ad up to and including 213ag
and 213aj, paragraph 2, up to and including 213ao, shall apply accordingly
to an adjustment of the transfer plan.
Article 213aq Branch office of an insurer with its seat in a non-Member
State
Articles 213aq up to and including 213ap shall apply accordingly to a
branch office located in the Netherlands of an insurer having his seat
in a State not being a EU Member State.
Article 213b Request for a bankruptcy filed by the Dutch Central Bank
A petition (request) for a declaration of bankruptcy regarding an insurer
may be lodged by the Dutch Central Bank ('De Nederlandsche Bank NV')
without the assistance of an advocate (solicitor admitted to the Bar).
Article 213c Dutch Central Bank shall inform the insurer and other Member
States of the bankruptcy petition
The Dutch Central Bank ('De Nederlandsche Bank NV') shall sent
a copy of the bankruptcy petition it has lodged to the involved insurer
and shall give notice of the content of that petition to:
a. if it concerns an insurer seated in the
Netherlands: the supervisory authorities of other Member States where
the insurer has a branch office or where it provides services which are
performed from establishments (offices) located in the European Union;
b. if it concerns an insurer seated outside
the European Union: the supervisory authorities of the other Member States
where the involved insurer provides services which are performed from
a branch office located in the Netherlands and, when another supervisory
authority in the European Union is charged to exercise supervision over
the solvency margin of the involved insurer, that supervisory authority.
Article 213d Opinion of the Dutch Central Bank; withdrawal of licence
- 1. The District Court may only give a decision
on a petition (request) for a declaration of bankruptcy regarding an insurer,
including the situation in which the insurer itself has lodged such a
petition (request), after it has granted the Dutch Central Bank ('De
Nederlandsche Bank NV') the opportunity to express its opinion on
the matter.
- 2. The Dutch Central Bank ('De Nederlandsche
Bank NV') shall withdraw the license if the insurer still has such
license at the moment of the declaration of bankruptcy.
Article 213e Simultaneous request for a transfer regulation or an emergency regulation
- 1. When a request for a transfer regulation
or an emergency regulation within the meaning of the Financial Supervision
Act is pending at the same time as a petition (request) of the insurer himself to reach his
own bankruptcy, then the proceedings on the request for a
declaration of bankruptcy shall be stayed until a decision on the request
for a transfer regulation, respectively, an emergency regulation is given.
- 2. Where the District Court orders a transfer
regulation or, respectively, an emergency regulation, the request of the
insurer for his own bankruptcy shall cease to exist by operation of law.
Article 213f Declaration of bankruptcy after the issuance of an emergency
order
- 1. After the District Court has order an
emergency regulation as meant in Article 3:161 of the Financial Supervision
Act, it may in derogation from Article 1, upon a request of the legal
administrators or upon a recommendation of the magistrate ('rechter-commissaris')
or of its own motion, after having heard the Dutch Central Bank ('De
Nederlandsche Bank NV'), declare the involved insurer with a seat
in the Netherlands bankrupt, if it appears that the equity (total assets
minus liabilities) of that insurer is negative and that the objective
for which the court had granted its authorisation under the emergency
regulation has been reached or cannot be reached anymore or, when no authorisation
had yet been granted under the emergency regulation, that there is no
reasonable prospect that such authorisation will make it possible to reach
that objective.
- 2. The emergency regulation and authorisation
lose their effect by operation of law in the event that the insurer is
declared bankrupt.
- 3. In the situation meant in the previous
paragraph as well as when the declaration of bankruptcy is proclaimed
within four weeks after the ending of the emergency regulation, the following
provisions shall apply:
a. the date as of which the periods meant in
Articles 43 and 45 start to run, shall be calculated as of the date of
the issuance of the declaration meant in Article 3:160, paragraph 1 or
2, or Article 3:206, paragraph 1 or 2, of the Financial Supervision Act;
b. estate debts*), arisen
after the issuance of the before meant declaration, shall be regarded
in the bankruptcy as well as estate debts;
c. the date as of which the periods meant in
Article 138, paragraph 6, and 248, paragraph 6, of Book 2 of the Civil
Code start to run, shall be calculated as of the date of the special provisional
measure;
d. acts meant in Article 3:175 of the Financial
Supervision Act, performed by or in the name of the legal administrators
pursuant to that Article during the period that the emergency regulation
was in effect, will be regarded as acts of the liquidator ('curator');
e. the liquidation estate is not liable for
obligations of the insurer, entered into in violation with Article 3:175,
paragraph 1 and 6, of the Financial Supervision Act during the period
that the emergency regulation was in effect, unless the liquidation estate
has profited from these obligations;
f. in derogation from Article 53, a right to
make a set-off may be invoked only if both, the claim and the debt, have
come to existence prior to the date on which the decision on the emergency
regulation is given or if both, the claim and the debt, result from an
act performed with the insurer prior to that date, and;
g. claims resulting from life insurance contracts
may, in derogation from Article 110, paragraph 1, be submitted by handing
in the insurance policy or a copy thereof, without the necessity to mention
the amount of the claim; as far as the liquidator ('curator')
acknowledges (admits) the claim, he will determine its amount;
h. if the District Court has approved the transfer
plan by ordering a transfer regulation as meant in Article 3:159u of the
Financial Supervision Act or when ordering the emergency regulation, the
bankruptcy liquidator shall implement the transfer regulation, respectively,
shall continue the implementation of the transfer plan started by the
acquiring party or administrator.
- 4. The provisions of Title 1 and Article
362 shall apply accordingly
*) 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 213g Providing information about the proclamation of a bankruptcy
order
- 1. The clerk of the court shall notify the
Dutch Central Bank ('De Nederlandsche Bank NV') immediately of
the declaration of bankruptcy.
- 2. The Dutch Central Bank ('De Nederlandsche
Bank NV') shall immediately thereafter notify the supervisory authorities
of all Member States about the proclamation of a bankruptcy order and
the possible consequences thereof in the relevant case.
Article 213h Publication of the bankruptcy in other Member States
- 1. Without prejudice to Article 14, paragraph
3, the liquidator ('curator') shall publish an extract of the
bankruptcy order in the Official Journal of the European Union, as well
as in one or more daily newspapers to be designated by the magistrate
('rechter-commissaris').
- 2. In addition to the data meant in Article
14, the liquidator ('curator') shall mention that, apart from
exceptions, the law of the Netherlands is applicable.
Article 213i Providing information to all known creditors
- 1. The liquidator ('curator') shall
immediately notify all known creditors in writing of the bankruptcy order.
- 2. The liquidator ('curator') who
has notified all known creditors on the basis of Article 109 of the orders
of the magistrate ('rechter-commissaris') meant in that Article,
shall notify them at the same time as well of the consequences when a
claim is submitted after the period referred to in Article 108, paragraph
1, under (1°) has expired, and that the creditors, including those
who may exercise a privilege or a real security right, must submit their
claims to the liquidator ('curator') with mention, where this
is relevant, that they have to invoke their privilege or real security
right explicitly. The notification to creditors with a claim on account
of a life-insurance contract must mention in addition the main consequences
of a bankruptcy for insurance contracts and the rights and obligations
of the policy holder and of others in connection with the insurance.
Article 213j Form and language of notifications to be made to known creditors
in other Member States
- 1. The notification meant in Article 213i,
paragraph 1, made to a known creditor with a habitual residence or domicile
in a Member State and to whom an insurance claim belongs, shall be made
in an official language of that Member State.
- 2. The notification meant in Article 213i,
paragraph 1, made to a known creditor with a habitual residence or domicile
in a Member State and to whom another claim belongs than the one meant
in paragraph 1, shall be made in the Dutch language by means of a form
bearing the heading "Invitation to lodge comments regarding claims.
Time limits" in all the official languages of the European Union.
- 3. Any creditor who has his habitual residence
or domicile in a Member State may lodge his claim and written comments
in one of the official languages of that Member State, however, making
use of the heading "Lodgement of a claim" («Indiening
van een vordering») or, respectively, “Lodgement of comments
regarding a claim” («Indiening van opmerkingen betreffende
een vordering») in the Dutch language
Article 213k Information provided to all known creditors and supervisory
authorities
- 1. The liquidator ('curator') shall
regularly inform all know creditors in an appropriate way of, at least,
the development of the proceedings.
- 2. The Dutch Central Bank (‘De
Nederlandsche Bank NV’) shall, upon request, inform the supervisory
authorities of the other Member States about the development of proceedings.
Article 213l [repealed on 01-01-2007]
Article 213m Ranking order of claims in the bankruptcy of an insurer
- 1. In the event of a bankruptcy on the basis
of the present Chapter (Chapter 11BB) the estate debts*)
will be, depending on the nature of the involved estate debt, either imputed
to each part of the liquidation estate or deducted exclusively from certain
assets of the liquidation estate. The estate debts shall in any event
include the costs made to make a registration in a public register in
another Member State than the Netherlands.
- 2. Without prejudice to the provisions of
paragraph 1, and except for claims secured by a pledge or mortgage, the
following claims will be recovered from the liquidation estate in the
following ranking order in the bankruptcy of a non-life insurer:
a. insurance claims in respect of instalment
payments to be made on account of illness, physical or mental injury or
the death of a natural person, arisen from or by virtue of a non-life
insurance contract, with the exception, however, of payments to be made
to other insurers pursuant to a re-insurance contract and of payments
on account of pensions promised to employees or former employees of the
insurer or to their surviving relatives.
b. claims of employees and former employees
as well as claims of their surviving relatives with regard to already
due and demandable instalment payments to be made on account of a pension,
as far as these claims are not older than one year;
c. claims of employees, not being a Director
of the insurer, and of former employees as well as claims of their surviving
relatives with regard to instalment payments to be made in future on account
of a promised pension;
d. claims of employees with regard to their
wages over the preceding year and the running year as well as the amount
of the statutory increase imposed pursuant to Article 625 of Book 7 of
the Civil Code as well as the amount of the expenditures, made by the
employee for the insurer in its capacity as his employer, and the amounts
indebted by the insurer, in its capacity as employer, to the employee
pursuant to Title 10 of Book 7 of the Civil Code in connection with the
ending of the employment agreement;
e. insurance claims with regard to lump sum
payments (non-instalment payments) to be made on account of illness, physical
or mental injury or the death of a natural person, arisen from or by virtue
of a non-life insurance contract, with the exception, however, of payments
to be made to other insurers pursuant to a re-insurance contract;
f. insurance claims with regard to payments
on account of other damages than the ones mentioned under (a) up to and
including (e), arisen from a non-life insurance contract;
g. claims for the reimbursement of amounts
which have been paid without any legal basis or justification or for which
such legal basis or justification has fallen away, and which were paid
in the assumption that due to such payment premiums were paid;
- 3. Without prejudice to the provisions of
paragraph 1, and except for claims secured by a pledge or mortgage, the
following claims will be recovered from the liquidation estate in the
following ranking order in the bankruptcy of a life insurer:
a. claims of employees and former employees
as well as claims of their surviving relatives with regard to already
due and demandable instalment payments to be made on account of a pension,
as far as these claims are not older than one year;
b. claims of employees, not being a Director
of the insurer, and of former employees as well as claims of their surviving
relatives with regard to instalment payments to be made in future on account
of a promised pension;
c. claims of employees with regard to their
wages over the preceding year and the running year as well as the amount
of the statutory increase imposed pursuant to Article 625 of Book 7 of
the Civil Code as well as the amount of the expenditures, made by the
employee for the insurer in its capacity as his employer, and the amounts
indebted by the insurer, in its capacity as employer, to the employee
pursuant to Title 10 of Book 7 of the Civil Code in connection with the
ending of the employment agreement;
d. insurance claims and rights regarding insurance
payments that have arisen or will arise from a life insurance contract;
e. claims for the reimbursement of amounts
which have been paid without any legal basis or justification or for which
such legal basis or justification has fallen away, and which were paid
in the assumption that due to such payment premiums were paid;
- 4. By a claim as referred to in paragraph
2, under (a), (e) and (f), and paragraph 3, under (d), is understood as
well a claim with regard to insurance payments on the basis of still running
insurance contracts, arisen on or after the day on which an emergence
regulation has been issued;
- 5. Claims that are not mentioned in paragraph
2 or 3, will be satisfied only if the claims referred to in paragraph
2 and 3 are fully settled and if it has been ascertained that none of
such claims shall arise again in future; if the requirements of the previous
sentence are met, the first mentioned claims shall by satisfied in proportion
to their value, yet with due observance of the rights of preference acknowledged
under law.
- 6. The rights of preference meant in paragraph 5 apply to claims of
creditors with a habitual residence, domicile or official seat in the
Netherlands as well as to claims of creditors with a habitual residence,
domicile or official seat in another Member State than the Netherlands.
*) 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.
§ 3 Provisions of private international law
Article 213n Recognition of decisions given in another home Member State
- 1. A decision given in another home Member
State than the Netherlands to open winding-up proceedings with regard
to an insurer shall be recognized by operation of law.
- 2. Such a decision shall have legal effect
within the Netherlands as of the date that it has legal effect in that
home Member State.
Article 213o Law applicable to winding-up proceedings
The decision to open winding-up proceedings, the winding-up proceedings
themselves and the legal effects of the winding-up proceedings shall be
governed by the law of the Member State where the winding-up proceedings
are opened, unless the law provides otherwise.
Article 213p Real property rights in assets situated in another Member
State
- 1. The decision to open winding-up proceedings
has no affect on a real property right (right in rem) of a creditor or
a third person in an asset or assets - both specific assets and collections
of indefinite assets as a whole which change from time to time –
belonging to the insurer, which are situated, at the moment on which the
decision to open the winding-up proceedings becomes effective, within
the territory of another Member State than the home Member State.
- 2. For the purpose of paragraph 1, a real
property right (right in rem) shall in any event enclose:
a. the right to dispose of (realise) assets
or have them disposed of (realised) and to obtain satisfaction from the
sale proceeds of or income from those assets, in particular by virtue
of a pledge or a mortgage
b. the exclusive right to have a claim satisfied,
in particular a right guaranteed (secured) by a pledged in respect of
the claim or by a transfer (assignment) of the claim by way of a guarantee
(security);
c. the right to reclaim assets which are held
by any person without a right or title, to demand that such assets are
handed over or to demand the undisturbed enjoyment of such assets;
d. the real property right (right in rem) to
the benefits (fruits) produced by an asset.
- 3. For the purpose of paragraph 1, a right
recorded in a public register that can be upheld against third parties,
on the basis of which a real property right (right in rem) within the
meaning of paragraph 1 may be acquired, shall be equated with a real property
right (right in rem).
- 4. For the purpose of the present Article,
the Member State where an asset is situated shall mean in the event of:
a. registered property and rights in registered
property: the Member State under the authority of which the register is
kept;
b. tangible property (movable things) not covered
by the provision under (a): the Member State within the territory of which
the tangible property is situated
c. claims: the Member State within the territory
of which the debtor of that claim, not being the bankrupt insurer, is
established (has the centre of his main interests).
Article 213q Retention of title
- 1. In the event that the insurer has bought
a thing (tangible asset), the decision to open winding-up proceedings
shall not affect the seller's rights based on a retention (reservation)
of title if, at the moment on which the decision to open winding-up proceedings
becomes effective, the thing to which this retention of title relates
is situated within the territory of a Member State other than the home
Member State.
- 2. In the event that the insurer has sold
a thing (tangible asset), the decision to open winding-up proceedings
shall not constitute a ground for a rescission or termination of the sale
agreement, and the winding-up proceedings shall not prevent the buyer
from acquiring the right of ownership of the bought thing, if that thing,
at the moment on which the decision to open winding-up proceedings becomes
effective, is situated within the territory of a Member State other than
the home Member State.
- 3. Article 3:241, paragraph 4, of the Financial
Supervision Act shall apply accordingly
Article 213r Right to invoke a set-off
If the person, who is a creditor as well as a debtor of the insurer, is
entitled to set-off his claim against his debt to the insurer pursuant
to the law applicable to that claim, then the decision to open winding-up
proceedings shall not affect the right to invoke that set-off.
Articles 213s Legal actions which remain available
Articles 213p up to and including 213r do not preclude actions for the
nullification of a null and void or voidable juridical act, nor actions
for the recognition of the ineffectiveness (unenforceability) of a juridical
act on the ground that it has been disadvantageous for (detrimental to)
all creditors.
Article 213t Employment agreements
In derogation from Article 213o, the effects of the winding-up proceedings
on employment agreements and similar relationships shall be governed solely
by the law of the Member State that is applicable to that agreement or
relationship.
Article 213u Agreements conferring the right to acquire or make use of
immovable property
In derogation from Article 213o, the effects of the winding-up proceedings
on an agreement conferring the right to acquire or make use of immoveable
property shall be governed solely by the law of the Member State within
the territory of which the immoveable property is situated.
Article 213v Registered property
In derogation from Article 213o, the effects of the winding-up proceedings
on the right of an insurer in (to) registered property shall be determined
by the law of the Member State under the authority of which the register
is kept.
Article 213w Rights and obligations of participants in regulated markets
- 1. In derogation from Article 213o, and
without prejudice to Article 213p, the effects of the winding-up proceedings
on the rights and obligations of participants in a regulated market as
meant in Article 1, under (13°) of Directive 93/22/EEC of the Council
of the European Communities of 10 May 1993 on investment services in the
securities field (OJ 1993 L 141), shall be governed solely by the law
applicable to that market.
- 2. Paragraph 1 does not preclude actions
for the nullification of a null and void or voidable juridical act, nor
actions for the recognition of the ineffectiveness (unenforceability)
of a juridical act on the ground that it has been disadvantageous for
(detrimental to) all the creditors.
Article 213x Disposition of registered property, securities and transferable
documents
In derogation from Article 213o, the legal validity of a juridical act
that has been performed non-gratuitously (i.e. for consideration) by the
insurer after the opening of the winding-up proceedings, through which
act it disposes of registered property or of securities or other transferable
documents which are registered in a statutory prescribed register or on
a statutory prescribed account or which have been placed in a centralized
securities deposit which is governed by the law of a Member State, shall
be governed by the law of the Member State under the authority of which
the register, the account or the deposit is kept or, where it concerns
immovable property, by the law of the Member State within which territory
that immovable property is situated.
Article 213ij Effects of winding-up proceedings on pending lawsuits
In derogation from Article 213o, the effects of the winding-up proceedings
on a pending lawsuit (legal action) concerning an asset of which the insurer
has lost the administration and availability, shall be governed solely
by the law of the Member State where that lawsuit (legal action) is pending.
Article 213z Juridical acts disadvantageous for all creditors; evidence
in rebuttal
Article 213o does not apply to rules of law regarding the question whether
a juridical act, which is disadvantageous for (detrimental to) all creditors,
is null and void or voidable on that ground, nor to rules of law which
determine whether such juridical acts may be invoked (are ineffective
towards one or more other persons), yet only if the person who benefited
from that juridical act proves that:
a. this juridical act is governed by the law
of a Member State other than the home Member State;
b. this applicable law does not allow any means
of challenging that juridical act in the relevant case.
Article 213aa Powers that a foreign liquidator may exercise within the
Netherlands
- 1. A liquidator from another home Member
State than the Netherlands may exercise the same powers within the Netherlands
as the ones conferred on him pursuant to the law of the home Member State,
except that he has no power to apply an enforcement measure or to give
a decision in legal proceedings or on a dispute. The way in which these
powers may be exercised in the Netherlands is governed by Dutch law.
- 2. If persons have been appointed on the
basis of the law of the home Member State to represent the liquidator
or to assist him otherwise, then these persons may exercise within the
territory of Netherlands all powers that have been conferred on them pursuant
to the law of that Member State.
Article 213bb Proof of the liquidator's appointment
- 1. To prove that a person is appointment
in another Member State as liquidator, it is sufficient to present a certified
copy of the original decision appointing him or any other certificate
issued by the competent authority of that Member State.
- 2. The liquidator from another Member State
than the Netherlands shall show, upon request, a Dutch translation of
that copy to the person towards (against) whom he wants to exercise his
powers.
Article 213cc Request of a foreign liquidator to register data in the
bankruptcy register
Upon the request of a liquidator from another Member State than the Netherlands,
the data with regard to the winding-up proceedings, opened in another
Member State than the Netherlands, shall be registered by the clerk of
the District Court of the Hague in the register meant in Article 19, paragraph
1.
Article 213dd Coordination between competent authorities
- 1. Where an insurer, which is seated outside
the European Union, but which has a branch office in the Netherlands as
well as in one or more other Member States, has been declared bankrupt,
the District Court and the Dutch Central Bank ('De Nederlandsche Bank
NV') shall try to coordinate their activities with the competent
authorities, respectively, with the supervisory authorities of other Member
States in which a license is granted to the insurer.
- 2. In the situation meant in paragraph 1,
the liquidator ('curator') who is appointed in the Netherlands
shall try to coordinate his activities with the liquidators in those other
Member States.
Article 213ee Data not to be included in the reports meant in Article
73
The liquidator ('curator') may not include in the reports meant
in Article 73 any data or information relating to third persons who are
involved or have been involved in attempts to make it possible for the
insurer to continue its business.
Article 213ff Definitions
For the purpose of the present section (§ 4):
a. 'funeral in kind insurer' shall
mean: a funeral expenses and benefits in kind insurer as meant in Article
1:1 of the Financial Supervision Act;
b. 'funeral in kind insurer with a seat
in a non-designated State' shall mean: a funeral expenses and benefits
in kind insurer having its registered office in a non-designated State
as meant in Article 1:1 of the Financial Supervision Act.
Article 213gg Applicability of provisions of the Bankruptcy Act to funeral
in kind insurers
Articles 213b, 213d, 213e, 213f, 213i and 213k, paragraph 1, apply accordingly
to a funeral in kind insurer.
Article 213hh Dutch Central Bank shall inform the insurer and other Member
States of the bankruptcy petition
The Dutch Central Bank ('De Nederlandsche Bank NV') shall sent
a copy of the bankruptcy petition it has lodged to the involved funeral
in kind insurer and shall give notice of the content of that petition
to:
a. if it concerns a funeral in kind insurer
seated in the Netherlands: the supervisory authorities of other Member
States designated on the basis of Article 2:50, paragraph 2, of the Financial
Supervision Act, where the funeral in kind insurer has a branch office
or where it provides services which are performed from establishments
in States designated on the basis of that Article;
b. if it concerns a funeral in kind insurer
seated in another State: the supervisory authorities of other States which
have been designated on the basis of Article 2:50, paragraph 2, of the
Financial Supervision Act, where the funeral in kind insurer provides
services performed from a branch office in the Netherlands.
Article 213ii Providing information about the proclamation of a bankruptcy
order
- 1. The clerk of the court shall notify the
Dutch Central Bank ('De Nederlandsche Bank NV') immediately of
the declaration of bankruptcy.
- 2. The Dutch Central Bank ('De Nederlandsche
Bank NV') shall immediately thereafter notify the supervisory authorities
of other States designated on the basis of Article 2:50 of the Financial
Supervision Act about the proclamation of a bankruptcy order and the possible
consequences thereof in the relevant case.
Article 213jj Provision of information by the Dutch Central Bank upon
request
The Dutch Central Bank (‘De Nederlandsche Bank NV’)
shall, upon request, inform the supervisory authorities of States designated
on the basis of Article 2:50 of the Financial Supervision Act about the
development of proceedings.
Article 213kk Ranking order of claims in the bankruptcy of a funeral in
kind insurer
- 1. In the event of a bankruptcy on the basis
of the present section (§ 4), the estate debts*)
will be, depending on the nature of the involved estate debt, either imputed
to each part of the liquidation estate or deducted exclusively from certain
assets of the liquidation estate.
- 2. Without prejudice to the provisions of
paragraph 1, and except for claims secured by a pledge or mortgage, the
following claims will be recovered from the liquidation estate in the
following ranking order:
a. claims of employees and former employees
as well as claims of their surviving relatives with regard to already
due and demandable instalment payments to be made on account of a pension,
as far as these claims are not older than one year;
b. claims of employees, not being a Director
of the funeral in kind insurer, and of former employees as well as claims
of their surviving relatives with regard to instalment payments to be
made in future on account of a promised pension;
c. claims of employees with regard to their
wages over the preceding year and the running year as well as the amount
of the statutory increase imposed pursuant to Article 625 of Book 7 of
the Civil Code as well as the amount of the expenditures, made by the
employee for the funeral in kind insurer in its capacity as his employer,
and the amounts indebted by the funeral in kind insurer, in its capacity
as employer, to the employee pursuant to Title 10 of Book 7 of the Civil
Code in connection with the ending of the employment agreement;
d. claims and rights with regard to performances,
that have arisen or will arise from a funeral-in-kind insurance contract,
concluded from an establishment of the funeral in kind insurer in the
Netherlands
- 3. Article 213m, paragraph 4 up to and including
6, shall apply accordingly.
*) 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.
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