On 1 July 2017, the Enhancement Position of Receivers Act (Wet versterking positie curator) entered into force.
The government has been implementing a legislative programme aiming to reassess bankruptcy law for several years. Tackling bankruptcy fraud is an important pillar thereof. On 1 July 2016, the Revision Penalisation Bankruptcy Fraud Act (Wet Herziening Strafbaarstelling Faillissementsfraude) came into effect. In the context of tackling fraud, it was also deemed necessary to provide the receiver with a stronger position. The act of 1 July 2017 facilitates this.
Important change
An important change is that the obligation to provide the receiver with information is no longer exclusively vested in the director under the Articles of Association and the supervisor. Now, the obligation also rests with actual directors and with persons who were director, actual director or supervisor in the three years prior to the bankruptcy. Therefore, it is no use any more for a fraudulent director to deregister as director shortly prior to the bankruptcy and put a front man forward.
Third parties
Third parties who are in possession of the administration of the bankrupt entity due to the performance of their profession or business, are obliged to make this available to the receiver. The law explicitly notes that this also applies to accountancy firms. Furthermore, it has been stipulated, that, if necessary, the means to read their contents must be made available to the receiver. Third parties cannot claim a retention right to the administration. Therefore, an accountant cannot argue towards a receiver that he is only prepared to hand over after his outstanding invoices have been paid.
Detecting fraud
New is that the fraud detection duty of the receiver has been clearly anchored in the law. Point of investigation should be whether there have been irregularities that have caused the bankruptcy (or the deficit therein). In practice, receivers have been conducting such legitimacy investigations. The delegated judge must be informed of the findings. The delegated judge may indicate that he deems it necessary for the receiver to file a report with the competent authorities, in which case the receiver must comply.
Consequences for receivers
Receivers shall be pleased with the enhancement of the (information) position. The fraud prevention duty of the receiver is perceived with more criticism. The time spent on fraud prevention is compensated from the insolvency assets (if any). That may lead to less money being paid to creditors. In fact, the insolvency creditors or the receiver himself pay the bill for the performance of the task. The new act does however represent an opportunity to establish regulations at this point. It has been stipulated that by or pursuant to a general order in council, further regulations may be laid down on the financing of the activities of the receiver in the context of the fraud prevention duty.
Information
If you would like more information on this subject, please contact Peter de Graaf.
