On 1 March 2009, the Guideline on Investigation and Prosecution of Bankruptcy Fraud (Aanwijzing opsporing en vervolging faillissementsfraude; the “Guideline”) entered into force. The Guideline contains rules for the Public Prosecution Office (Openbaar Ministerie) to increase the prosecution of bankruptcy fraud. The Guideline indicates that criminal law will be complementary to the civil law instruments that a receiver (curator) has in bankruptcy proceedings. The Guideline further provides for cooperation between the Public Prosecution Office and receivers.
The Guideline distinguishes between simple fraud cases and serious and complex/sensitive bankruptcy fraud cases. This distinction should result in better allocation of tasks between investigation authorities and more efficient settlement of cases. Simple cases will be investigated by the regional police, whereas complex cases, which require specialised financial knowledge, will be investigated by the Fiscal Intelligence and Investigation Service and Economic Investigation Service (FIOD-ECD) and/or the supra-regional detective force (Bovenregionale Recherche).
Receivers can report bankruptcy fraud cases to the bankruptcy reporting centre (Fraudemeldpunt). In addition, simple fraud cases can also be reported to the regional police and the district Public Prosecutor Office. Complex fraud cases can also be reported to the FIOD-ECD and the public prosecutor.
Investigative authorities and receivers each have their own specific powers on the basis of criminal and civil law, which can be combined, on the basis of the Guideline, in combating bankruptcy fraud. For instance, the Public Prosecution Office has more powers to trace missing property forming part of the estate, whereas the receiver, once missing property has been found, is able to seize this property.