10.3 Recommendations

The Enterprise Chamber should impose a maximum hourly rate on the investigator when determining the investigation budget (par. 2.4.2.3). Furthermore, the Enterprise Chamber should impose a maximum hourly rate to be charged when appointing EC officers (par. 4.5.2.3). The Enterprise Chamber should also set a standard hourly rate for auxiliary persons engaged by the investigator and EC officers (par. 2.4.3.4.2 and par. 4.5.3.4).

When granting the request for an inquiry, the Enterprise Chamber should initially provide the investigator with a limited budget for the purpose of drawing up the budget and a plan of action (par. 2.5.2.3.4).

The Enterprise Chamber should adopt a stricter attitude when it comes to assessing late requests by the investigator for increases in the investigation budget (par. 2.6.2). Furthermore, the Enterprise Chamber should hold the investigator to his promise to limit the costs of investigation (par. 2.6.4.4).

The Enterprise Chamber should hear a wide range of persons when an increase in the investigation budget is requested, consisting of the person requesting the inquiry, the investigator, and the legal person subject to investigation, as well as those persons who, on the basis of the investigator’s preliminary opinion, determine or have determined the policy or state of affairs of the legal person as a director, supervisory director or another person employed by the legal person (par. 2.6.3.2). Furthermore, the Enterprise Chamber should order an oral hearing if these parties formulate objections to the request to increase the investigation budget or fail to respond to an invitation to respond to such request in writing (par. 2.6.3.3). The Enterprise Chamber should follow the same procedure when setting the investigation budget (par. 2.5.2.3.5) and when determining the costs of investigation (par. 2.8.3.3).

The Enterprise Chamber should manage the investigation budget and the amount secured for the remuneration of EC officers. For this purpose, the Enterprise Chamber shall require the legal person or a direct financier who voluntarily finances the costs of the inquiry proceedings to deposit these costs as an advance payment at the Registry of the Amsterdam Court of Appeal (par. 2.7.4).

The Enterprise Chamber should require the investigator and EC officers to account for the costs of investigation and their remuneration respectively every three months, after which the Enterprise Chamber can pay the bills submitted by the investigator and EC officers (par. 2.10 and par. 4.10.4).

The remuneration of EC officers should be determined by the Enterprise Chamber as a matter of course at the end of their appointment (par. 4.8.4). The Enterprise Chamber should also make partial assessments of the costs of investigation and the remuneration of EC officers (par. 2.8.4 and par. 4.8.4).

If an immediate relief or a final relief is requested, the Enterprise Chamber should, as a matter of standard procedure, ask the parties whether liability insurance or legal expenses insurance is available for the EC officers to be appointed and if so, request them to submit the policy conditions (par. 5.2.7.6).

When appointing an EC officer, the Enterprise Chamber should determine of its own motion (ex officio) that the legal person will be liable for his defence costs, at least for inquiry proceedings in highly conflictive circumstances (par. 5.3.2.6). In doing so, the Enterprise Chamber should also determine that the legal person is liable to pay the costs of defence of the EC officer to be appointed in disciplinary proceedings if the EC officer to be appointed is subject to disciplinary proceedings (par. 5.3.2.9).

The Enterprise Chamber should provide reasons for its decision on the allocation of costs of inquiry proceedings among group companies (par. 6.3.1).

The Enterprise Chamber should not require others than the legal person to finance the costs of inquiry proceedings, except for the situation in which it imposes a prohibitory injunction on a party to the proceedings, on pain of a penalty, with the aim of preventing further opposition to the investigator or EC officers by this party to the proceedings (par. 6.4.3).

The Enterprise Chamber should not apply Article 2:354 DCC on a precautionary basis by obliging directors, supervisory directors, or other persons employed by the legal person to finance the costs of investigation at the time an inquiry is ordered (par. 7.4.6).

The Enterprise Chamber should interpret Article 2:354 DCC in such a way that it prevails over other bases of liability (par. 7.5.2).

The statutory regulation of the costs of defence of the investigator in Article 2:350, paragraph 3, DCC should provide for reimbursement of the costs of defence of the investigator in disciplinary proceedings (par. 3.3.2.5).

Further consideration should be given to the legal qualification of the costs of defence of the investigator and EC officers as estate debt (par. 3.3.4.4 and par. 5.3.4.5) and an arrangement under which the State bears the costs of defence of the investigator and EC officers in bankruptcy situations (par. 3.3.4.5 and par. 5.3.4.6).

Limiting the liability of EC officers on the basis of Article 6:110 DCC merits further consideration (par. 5.2.7.8).

In Article 2:354 DCC, the requirement of serious blame should be introduced for the liability of directors and supervisory directors (par. 7.9.3.6).