10.2.6 The financing of the costs of inquiry proceedings

Article 2:350, paragraph 3, DCC and Article 2:357, paragraph 4, DCC start with the basic premise that the costs of inquiry proceedings are to be met by the legal person subject to investigation. This can be justified by the preliminary ruling of the Enterprise Chamber that there are well-founded reasons for doubting the correctness of the policy or state of affairs (par. 6.2.2). Provisions are also made in the interest of the legal person or in the interest of the investigation, and therefore also in the interest of the legal person (par. 6.2.3). In the absence of statutory regulation to this effect, the Enterprise Chamber takes a lot of leeway in allocating the costs of inquiry proceedings among group companies. This does not appear to be onerous – compulsory financing by the applicant is in principle excluded (par. 6.3.6 and par. 6.3.7) – but the Enterprise Chamber should provide reasons for its decision. It usually does not do so (par. 6.3.1).

If the legal person subject to investigation is unwilling to provide financing – i.e., the legal person refuses to provide clarity about its financial situation, or refuses to provide security or make payment – the Enterprise Chamber can, on request, seek to enforce an immediate relief to cover the costs of the inquiry proceedings. Depending on the circumstances, it is also conceivable that use can be made of the provisions of Article 2:352 DCC (par. 6.2.4).

If the legal person is unable to provide financing, I think it should be possible to allow financing by someone other than the legal person. Alternatively, the Enterprise Chamber may apply an immediate relief or try to reduce the costs of the inquiry proceedings. However, Article 2:350, paragraph 3, DCC and Article 2:357, paragraph 4, DCC leave no room for mandatory financing of the costs of inquiry proceedings by someone other than the legal person. I would accept only one exception to this if the Enterprise Chamber imposes a prohibitory injunction on a party to the proceedings, on pain of a penalty, with the aim of preventing further opposition against the investigator or EC officers by this party to the proceedings. If the party in question forfeits a fine for the benefit of the legal person, it can be used to indirectly finance the costs of the inquiry proceedings.

In my opinion, neither Article 2:350, paragraph 3, DCC nor Article 2:357, paragraph 4, DCC preclude voluntary financing. There must always be well-founded reasons for doubting the correctness of the policy or state of affairs, and the inquiry proceedings must be deemed to be (also) in the interest of the legal person by the Enterprise Chamber (par. 6.4.3 and par. 6.4.4).

Voluntary financing of the costs of inquiry proceedings by the applicant (par. 6.5), an interested party (par. 6.6), the trustee (par. 6.7), and the directors and supervisory directors (par. 6.8) can be admitted. This also applies in bankruptcy situations. The costs of the inquiry proceedings do therefore not constitute an estate debt (par. 6.7.3). Nevertheless, the trustee may be prepared to voluntarily finance the costs of the inquiry proceedings (par. 6.7.4 and par. 6.7.5). It is also conceivable that the trustee is required to finance the costs of the inquiry proceedings by order of the commissioner judge (par. 6.7.6). In my opinion, the possibilities of financing the investigation costs by the trustee should be broadened by extending the Guaranty Rules for trustees 2012 (Garantstellingsregeling curatoren 2012) (par. 6.7.7). The financing of the investigation costs can de facto also take place by the investigator (par. 6.9).

In my opinion, the party to the proceedings which commits itself to finance the costs of the inquiry proceedings is immediately bound by this commitment. Acceptance of the commitment by the investigator or EC officer is not necessary; the investigator or EC officer can claim compliance with this commitment directly before the Enterprise Chamber (par. 6.4.5).

Direct financing (or the commitment thereto) can also be subject to financing conditions, such as financing up to a maximum amount or for the single purpose of covering the costs of investigation, not including the remuneration of EC officers. If a financier provides financing under financing conditions that impose such restrictions on the investigator or EC officers that the investigation cannot be fully completed, that mismanagement cannot be established or that the measures taken do not fully meet the intended purpose, the Enterprise Chamber may, based on a weighing of interests, decide to reject the request for an inquiry or terminate (in part) the inquiry proceedings, the investigation or the measures taken (par. 6.4.6).

A financier may want to exert influence on the work of the investigator or EC officers. However, I see little room for this and I believe that an investigator and EC officer acting reasonably and competently can be expected not to shy away from going to the examining judge, or at least the Enterprise Chamber, in the event of a nuisance caused by the financier. In extreme cases, the investigator or EC officer may request the Enterprise Chamber to relieve him of his duties (par. 6.4.7 and par. 6.4.8).