If you are no longer able to pay your debts and you are a sole trader, partner in a partnership (maatschap or vennootschap) or a freelancer/self-employed professional, then you are personally liable for your business’s debts.
There are two ways to apply for debt restructuring:
- You can appeal to your municipality for debt restructuring.
- If this fails you can appeal to court for debt restructuring.
If your inability to pay your debts is temporary, you can apply for suspension of payment.
Voluntary debt restructuring
When you appeal for voluntary debt restructuring, a debt counsellor will help you. Debt counsellors are appointed through your municipality, 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.
If your creditors agree to a voluntary payment arrangement and you have done your utmost to pay back as much as possible within 36 months, 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
If voluntary debt restructuring fails 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, that 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
If the court approves your application for statutory debt restructuring, 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.
Please note: if the administrator was unable to locate all creditors, any leftover amounts may be stored in the so-called Consignatiekas (consignment office, in Dutch). This deposit with the Ministry of Finance stores leftover (monetary) funds from, among others, bankruptcies and debt restructuring settlements for a period of 20 years. If you have a legitimate claim and have proof of this, you can file your claim through the Ministry of Finance (in Dutch). You can search the Ministry’s database (in Dutch) to find out if there are any funds left after a bankruptcy or debt restructuring settlement of your customer.
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.
If you have met all statutory debt restructuring obligations the judge will grant you a clean slate at the end of the agreed upon period. This means you will not have to repay the remaining debt.
Attachment of earnings order
Does your employee have debts? And is your employee unable to repay those debts? Then the court bailiff can seize part of your employee’s wages. This is called attachment of earnings order.
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.