NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
5.2 Course of the Liquidation Procedure Statutory Debt Restructuring for Natural Persons After the court has declared the procedure applicable, a fixation and determination of the assets takes place for the estate. The debtor loses the right to dispose of and to manage the assets, with which the administra - tor is entrusted. In principle, the procedure covers all the debtor’s assets at the time of the declaration as well as what they acquire during the procedure. Cur - rent contracts at the time of the judgment are in prin - ciple not affected by the debt restructuring and must be complied with (by the administrator). Attachments made on assets of the debtor will lapse by operation of the law. The application of the procedure entails various obli - gations for the debtor to ensure that they make a maximum contribution and effort to bring as much money as possible into the estate. These obligations include the generating and handing over of income, handing over of assets, a duty to provide information to the administrator and supervisory judge, or asking the administrator’s permission for certain actions. Suspension of Payments From the moment the provisional suspension of pay - ments is granted, the regime of the suspension of pay - ments applies in full. In principle, the estate consists of the full extent of the debtor’s assets. With the suspen - sion of payments, the debtor loses the power to freely perform acts of administration or disposition regarding the estate. For these, they require the consent of an administrator. On the other hand, the administrator is not entitled to dispose of the debtor’s assets without their consent. The debtor and the administrator must, therefore, co-operate. The suspension of payments does not affect priority claims or secured creditors, so it mainly affects credi - tors with unsecured claims. Bankruptcy At the moment of bankruptcy declaration, a fixa - tion takes place, causing the legal status of every - one involved in the estate to become unchangeable. The assets belonging to the bankruptcy estate are fixed and no longer under the control of the debtor and individual creditors; the court-appointed trustee
Statutory Debt Restructuring for Natural Persons The request for admission to the statutory debt restructuring for natural persons can be made only by a natural person. The request will be granted if it is likely that the debtor will not be able to continue paying their debts as they fall due, they have been act - ing in good faith during the three years preceding the request, and that the debtor will duly fulfil the obliga - tions arising from the debt restructuring scheme and will endeavour to obtain as much money as possible for distribution among their creditors. The request may be rejected if the statutory debt restructuring scheme is already applicable to the debtor, the attempt at an out-of-court debt restruc - turing was carried out by an improper person or insti - tution, or if the debtor has debts that are the result of an irrevocable conviction for a crime. Suspension of Payments The debtor who foresees that they will not be able to continue payment of their due debts may apply for suspension of payments. Suspension of payments cannot be granted to a natural person who is not conducting an independent profession or business. After the application is filed, suspension of payments is immediately provisionally granted, and an admin - istrator is appointed. The provisional suspension of payments lasts until the creditors are heard and vote on the definitive suspension of payments. This hearing and vote usually take place after a few months. Bankruptcy When a natural person or legal entity has stopped paying its due debts, and has at least two debts with different creditors (at least one of which is due), they can be declared bankrupt at their own request or at the request of their creditors or the public prosecu - tor’s office. There is no (legal) obligation for a director of a com - pany to file a petition for bankruptcy under certain circumstances. However, it may be relevant in the context of the director’s personal liability because of wrongful trading (see 7. Duties and Liability of Direc- tors and Officers ).
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