NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
2.3 Secured Creditors In order to obtain more security with regard to the payment of a claim, in the Netherlands a creditor can rely on various (in rem) security rights. These may include the vesting of a right of mortgage or a right of pledge in respect of goods that are transferable. Another possibility is a right of retention, according to which a creditor may suspend the return of a good to the debtor or a third party until the claim is satisfied, or a retention of title. A right of mortgage can be established on a registered property, such as real estate, and a registered vessel or aircraft. It requires a notarial deed and registration in the relevant register. The right of pledge can be established on any property belonging to another per - son that is not a registered property. A pledge can take the form of a possessory pledge, where the pledged property is in the power of pledgee, and a non-pos - sessory pledge, where the pledged property remains in the power of the pledgor. If it does not concern movable property, but receivables, it is a public pledge or an undisclosed pledge. A right of pledge on a share in a company is estab - lished by notarial deed. The rights attached to the share cannot be exercised until the pledge has been acknowledged by the company or served on the com - pany. In order to have effect against third parties, the pledge on shares must be entered into the sharehold - ers’ register. A pledge can be established on movable property by bringing the property into the power of the pledgee (possessory pledge), or by authentic or registered deed (non-possessory pledge). Personal claims ( vor- dering op naam ) can be publicly pledged by a deed, and notice thereof to the debtor. A non-public pledge can be established on personal claims by authentic deed or registered private deed. Furthermore, there is the option to pledge future receivables in advance. Intangible property/rights, such as intellectual prop - erty rights, can also act as collateral. For example, copyrights, patent rights and trade mark rights can be pledged. For each intellectual property right, how - ever, it should be considered whether it is transferable (and therefore pledgeable) and, if so, which formalities
must be paid directly by the trustee. An estate claim has priority over so-called bankruptcy claims: pref - erential claims, unsecured claims and subordinated claims. A bankruptcy claim arises (i) by virtue of the law; (ii) because the trustee in bankruptcy entered into it in their capacity; or (iii) because it results from actions by the trustee in breach of an obligation. Examples of estate claims are the rent from the day of the bankruptcy declaration, and wages and social security premiums related to the employment con - tract against a bankrupt employer from the day of the bankruptcy declaration. As soon as the trustee is faced with a negative estate (being a bankruptcy in which not all estate claims can be fully paid), an order of priority also comes into play between the estate claims themselves. This may involve super estate claims, costs of execution, pref - erential estate claims, and unsecured estate claims. Secured claims of pledge and mortgage holders (sep - aratists) can be settled outside the bankruptcy (to the extent covered by security), and they can exercise their rights as if there were no bankruptcy. Because they remain outside the bankruptcy, they do not have to contribute to the bankruptcy costs. Suspension of Payments and Debt Restructuring Scheme for Natural Persons In the suspension of payments and debt restructuring scheme for natural persons, the estate claim fulfils a similar role as in bankruptcy. However, in accordance with the system and goal of the debt restructuring scheme, the number of estate claims is much less than in other insolvency situations. Current terms of long-term contracts, such as rent and utilities, exist - ing at the time of the court order applying the debt restructuring scheme, fall under the scope of the debt restructuring scheme. Debts arising during the term of the debt restructuring plan are, in principle, excluded from it. The debtor must pay these debts using their own resources not included in the debt restructuring plan. An exception to this rule is made for claims aris - ing from business continuation, which may qualify as estate claims.
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