NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
2. Creditors 2.1 Types of Creditors
Bankruptcy Supervisory judge
The bankruptcy judge is charged with the supervision of the administration and liquidation of the bankrupt estate by the trustee. Moreover, they are an adviser to the court, of which they are a member. The supervisory judge may hear witnesses or order an expert’s inves - tigation in order to clarify all circumstances relating to the bankruptcy. They may also appoint an expert to the extent necessary for the proper and effective supervision of the management and liquidation of the bankruptcy estate. Each creditor, the creditors’ com - mittee and also the bankrupt, may lodge an applica - tion with the supervisory judge to object to any act of the curator or to petition that the supervisory judge order the curator to perform or refrain from performing any contemplated act. Trustee The court appoints a trustee upon declaration of bank - ruptcy, taking into consideration their experience and the complexity of the bankruptcy. The debtor loses the right to dispose of, and to manage, the assets belong - ing to the bankrupt estate, and the trustee is in charge of managing and liquidating the bankrupt estate. As a result, third parties cannot derive any rights against the estate from the debtor’s actions, and only the trus - tee can bind the bankrupt estate. In practice, trustees are, almost without exception, lawyers. Creditors’ committee A creditors’ committee can be set up in bankruptcy, but in practice this quite rarely happens and then only in large bankruptcies. If it is set up, the trustee is obliged to seek its advice on important issues. In addi - tion, the creditors’ committee has the task of advis - ing the creditors’ meeting. Only a representative of an important group of creditors can be a member of the creditors’ committee. Court In bankruptcy, the role of the court differs substan - tially from that of the supervisory judge. Rather than supervising, the court has a role as decision-maker in bankruptcy. The court, for example, decides about the opening of the bankruptcy proceedings. Also, many orders of the supervisory judge may be appealed before the district court.
In the Netherlands, a distinction is made between creditors with secured claims, preferential claims, unsecured claims, and subordinated claims. Moreo - ver, there are creditors with claims directly against the bankrupt estate instead of against the debtor (“estate claims”; boedelvorderingen ). Creditors with preferential claims have priority over unsecured and subordinated creditors. This priority arises from pledge, mortgage and statutory privilege and from the other grounds specified in the law. Within the category of preferential claims, pledge and mort - gage take precedence, in principle. Also, special privi - leges regarding a particular asset take precedence over (general) privileges on all assets belonging to the estate. Creditors with unsecured claims are creditors with no preferential claim and no subordinated claim. Creditors with subordinated claims are creditors who have agreed with the debtor that their claim ranks lower than (some) other creditors. Shareholders are sometimes seen as subordinated creditors, although in fact they rank even lower than them. 2.2 Priority Claims in Restructuring and Insolvency Proceedings WHOA Under the WHOA, there are no true priority claims (apart from those discussed in 2.1 Types of Credi- tors ). However, certain claims are protected under the WHOA because the law stipulates that they cannot be restructured under the plan – for example, the rights of employees employed by the debtor, or financial collat - eral arrangements and set-off clauses. Furthermore, a secured money loan to continue the business during the WHOA procedure is protected from an actio pauli - ana that a trustee could invoke in case the company goes bankrupt. Bankruptcy After the opening of the bankruptcy proceeding, estate claims may occur. An estate claim gives a claim on the estate instead of against the debtor, which in principle
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