10.2.4 The remuneration of EC officers

The Enterprise Chamber can appoint EC officers by way of both an immediate (provisional) relief and a final relief (par. 4.2). Pursuant to Article 2:357, paragraph 4, DCC, the Enterprise Chamber may grant EC officers a remuneration to be paid by the legal person. It will almost always proceed to do so (par. 4.6). The Enterprise Chamber shall also apply this provision by analogy to EC officers appointed by way of a provisional relief (par. 4.3).

The remuneration of EC officers consists of the EC officers’ fees (par. 4.5.2) and the EC officers’ expenses (par. 4.5.3). EC officers are only entitled to a fee for activities that are sufficiently connected to their task as EC officers (par. 4.4 and par. 4.5.2.2). The following expenses incurred by EC officers are eligible for reimbursement: travel and accommodation expenses, office expenses, costs of engaging third parties, and costs of defence when EC officers are threatened by liability or held liable (par. 4.5.3).

In my view, one of the duties of the Enterprise Chamber is to ensure that the remuneration of EC officers remains within reasonable limits (par. 4.7.4). The EC interprets its task in this respect too restrictively. In my opinion, the following matters should be improved.

The Enterprise Chamber will usually only stipulate that the legal person must provide security for payment of the EC officer’s salary and expenses to the satisfaction of the EC officer before the commencement of his work. In addition, the Enterprise Chamber should set a maximum hourly rate to be charged when appointing EC officers. If the Enterprise Chamber sets the remuneration of an EC officer when he is appointed, the parties are given the opportunity to inspect the EC officer’s fee in advance and they may be able to estimate the costs of the EC officer more accurately. The EC officer will then no longer have to negotiate his remuneration with the legal person or a direct financier, the fees can be standardised, and the Enterprise Chamber – provided that everything has been adequately accounted for – can maintain a better overview of the costs incurred by EC officers. If the Enterprise Chamber imposes a maximum rate on the officials it appoints, EC officers will also have a better understanding of where they stand. If they think the hourly rate is too low, they can reject the appointment as an EC officer (par. 4.5.2.3). The Enterprise Chamber would also do well to set a standard hourly rate for auxiliary persons engaged by EC officers, to be derived from the standard hourly rate for EC officers (par. 4.5.3.4).

In my opinion, it would also be appropriate to place the management of the amount secured for the remuneration of EC officers in the hands of the Enterprise Chamber. The Enterprise Chamber will then have a better insight into how the remuneration of EC officers progresses and possible disputes about the conditions of the security deposit between EC officers and the legal person or direct financier can be avoided. In such a system, the legal person – or a direct financier who voluntarily finances the costs of investigation – should be required to provide security for an amount determined by the Enterprise Chamber by way of an advance deposit at the Registry of the Amsterdam Court of Appeal. After the EC officer has rendered an interim account of his remuneration and the Enterprise Chamber has reviewed the EC officer’s statement of costs and has provisionally determined, at least in part, the remuneration of the EC officer, the Enterprise Chamber can pay the EC officer’s remuneration from the deposit made (par. 4.7.4).

As the final element of more intensive monitoring of the remuneration of EC officers, the Enterprise Chamber should, in my opinion, decide on the remuneration of EC officers at the end of their appointment. The Enterprise Chamber should also have the option of making partial cost determinations in case costs eligible for reimbursement arise after a previous determination. This would also prevent EC officers from having to wait a long time for their money (par. 4.8.4).

Lastly, I would recommend an interim accountability requirement for EC officers in respect of their remuneration. If the Enterprise Chamber is entrusted with the management of the amount secured for the remuneration of EC officers and EC officers are required to account for the progress of their work every three months, including a summary of costs incurred and to be incurred, then the Enterprise Chamber can always pay EC officers their bills when account is rendered. In this way, the remuneration of EC officers can also be better monitored. The parties to the proceedings should be informed in the same way as the Enterprise Chamber and be able to challenge the progress report of an EC officer (par. 4.10.4 and par. 4.11).