The Bottom Line
- Stick to the Process: In the Netherlands, you cannot sue a bankrupt company directly to establish a debt. Claims must be submitted through the formal bankruptcy verification process managed by the trustee.
- No Payout Doesn’t Mean No Rules: Even in bankruptcies where a payout to unsecured creditors is unlikely, specific legal paths exist to resolve disputed or preferential claims. Attempting to bypass these procedures will likely fail.
- Justifying Exceptions is a High Bar: Arguing for a separate lawsuit based on a ‘special interest,’ such as needing a judgment for foreign tax purposes, requires clear and compelling evidence that the standard bankruptcy procedures are insufficient.
The Details
This case involved a Croatian shipyard, Brodotrogir, which filed a lawsuit against the bankruptcy trustee of a Dutch competitor, Barkmeijer Stroobos B.V. Brodotrogir sought a court declaration validating its multi-million euro claim and its preferential status. It argued that a formal lawsuit was necessary because the standard claim verification meeting was unlikely to occur in the bankruptcy, and it needed a formal judgment for tax deduction purposes in Croatia. The lower court had previously declared the lawsuit inadmissible, siding with the trustee who argued that such claims belong exclusively within the bankruptcy proceedings.
The legal heart of the matter is Article 26 of the Dutch Bankruptcy Act. This provision centralizes all creditor claims, creating a temporary stay on individual lawsuits to ensure an orderly and equitable settlement process. By filing a separate lawsuit, the creditor was attempting to circumvent this core principle of collective creditor action. The law provides a structured pathway: a creditor submits their claim to the trustee for verification. If the trustee disputes the claim, the law prescribes a specific legal action, known as a renvooi procedure, to obtain a judicial decision.
In its interim ruling, the Court of Appeal did not make a final decision but effectively paused the proceedings. The judges questioned why the creditor had not used the established renvooi procedure, which is designed precisely for resolving such disputes, even in simplified bankruptcies. The court has now ordered the creditor to provide a convincing explanation why this standard legal route is not viable and to better substantiate its need for a separate judgment. This decision sends a clear signal to businesses: Dutch courts are reluctant to create exceptions to fundamental bankruptcy rules and expect creditors to exhaust all designated procedures before seeking alternative relief.
Source
Gerechtshof Arnhem-Leeuwarden (Arnhem-Leeuwarden Court of Appeal)
