On this page
Are you no longer able to pay your debts? Then you can apply for debt restructuring.
There are diferent types of debt restructuring:
- voluntary debt restructuring
- statutory debt restructuring under the Natural Persons Debt Restructuring Act (Wet schuldsanering natuurlijke personen, Wsnp)
- compulsory agreement under the Homologation private agreement in bankruptcy Act (Wet homologatie onderhands akkoord in faillissement, WHOA)
Voluntary debt restructuring
When you appeal for voluntary debt restructuring, a debt counsellor will help you. Debt counsellors are appointed through your municipality (in Dutch), social services or a specialist company. They help you find a solution for repaying your debts with your creditor or creditors. This is called a voluntary payment arrangement.
Voluntary payment arrangement
When you enter the voluntary payment arrangement, you start by drawing up a plan with your debt counsellor. He or she will calculate how much you can repay per month. After that, the debt counsellor will propose a monthly repayment to your creditor or creditors.
Your creditors have to agree to a voluntary payment arrangement. Have you done your utmost to pay back as much as possible within 36 months? Then the rest of the debt will be cancelled.
If 1 or more creditors do not agree to a voluntary payment agreement and their refusal to agree is unreasonable, you can request a compulsory settlement.
Statutory debt restructuring
Does the voluntary debt restructuring fail? You can ask the court in your place of residence for a statutory debt restructuring arrangement. This can be done under the Natural Persons Debt Restructuring Act Wet schuldsanering natuurlijke personen, Wsnp). The Wsnp is a legal debt restructuring arrangement. It makes it possible for you to be debt-free within 36 months. When you appeal to the Wnsp, you will almost certainly have to end your business.
Conditions of the Natural Persons Debt Restructuring Act (Wsnp)
- You can no longer pay your debts.
- You have a statement from your municipality that voluntary debt restructuring failed.
- You have not made use of Wsnp in the past 10 years.
- You have not run up debts deliberately in the past 5 years, e.g. through fines, fraud or reckless spending.
- None of your debts was incurred through crime.
- You comply with the Wsnp requirements.
- You try to earn as much as possible to repay your creditors.
- Your creditors will have to cooperate with the debt restructuring arrangement. If the court rejects your application, you can appeal to the Court of Appeal. For this you will require a lawyer.
- If you do not have adequate knowledge of the Dutch language, you must make sure to have help in translating all correspondence.
Debt restructuring plan
Does the court approve your application for statutory debt restructuring? Then it will draw up a plan to reschedule your debts. This will set out the repayment amount and the length of time that the process will cover. This is usually 3 to 5 years.
The court will appoint an administrator. You must inform the administrator about everything that might be relevant for your situation. Often the adminstrator will sell your company's assets. The administrator will calculate how much money you will live on. All income that exceeds this sum will go into an estate account. He or she uses this account to repay your creditors, and his or her own fee.
The administrator will check whether you meet your obligations. If you fail to conform to the Wnsp obligations, the administrator, the bankruptcy judge or the creditor can ask the court to suspend the arrangement. The judge can then pronounce bankruptcy.
Have you met all statutory debt restructuring obligations? At the end of the agreed upon period the judge will grant you a clean slate. This means you will not have to repay the remaining debt.
Private agreement (WHOA)
As an entrepreneur in financial difficulties, you may enter into a private agreement with creditors to restructure problematic debts. The court can approve this agreement (homologation). You may prepare and determine the content of the agreement yourself.
Creditors or shareholders who do not agree can then still be bound by the agreement. Therefore, the term 'compulsory agreement' is also used. You can also use this compulsory agreement for a relaunch of (part) of your business. If the majority of creditors supports the relaunch, then a single or a minority of creditors or shareholders cannot prevent this restart.
Requirements to enter into a private agreement
- You can no longer pay your company’s debts.
- Your company will be essentially profitable after restructuring.
- Your creditors will be better off than they would be in case of bankruptcy of your company.
- You have an achievable and reasonable plan.
- You must make sure money and other assets are distributed fairly among all creditors.
- At least 1 of your creditors must be in favour of the agreement.
- Employment conditions of your staff may not change
- The process and the contents of the agreement should meet the legal requirements (in Dutch) such as among others:
- name of the debtor
- ranking of creditors (if applicable) and the criteria thereof
- financial consequences for the creditors
- how the creditors will be informed on the agreement
- name of the restructuring expert (if applicable)
- calculation of expected revenues and valuations
You will also need to attach:
- a statement of assets and expenditures;
- a list of creditors and/or shareholders, their ranking (if applicable) and the amount of their claims or worth of shares;
- information on your financial position and a description of the nature scope and source of the problems, how you have tried to solve these, which measures are part of the agreement and how and when these measures will solve the problems.
When you prepare the agreement, you lodge a declaration that you are starting the process with the court registry. If you request homologation of the private agreement you will need a lawyer. You can hire an advisor to help you or you can have the court appoint a restructuring expert. You or the restructuring expert can apply for a cooling-off period of at most 4 months. During this period creditors cannot seize your business assets.
Cross-border cases in English
If you are involved in a cross-border solvency case, you can turn to the Netherlands Commercial Court. Cases can be heard by the Netherlands Commercial Court, in the following cases, if:
- the proceedings fall under the jurisdiction of the Amsterdam District Court or Amsterdam Court of Appeal;
- the parties have expressly agreed in writing that proceedings will be in English before the NCC (the 'NCC agreement');
- the action is a civil or commercial matter within the parties’ autonomy;
- the matter concerns an international dispute.