Since 9 January 2022, the public type of the Dutch Scheme is automatically recognized in the EU under the European Insolvency Regulation. This will be further discussed in this blog.
Last year saw the introduction of the Dutch Scheme (we refer to our previous blogs for further details on the Dutch Scheme).
The Dutch Scheme provides for two types of proceedings, public and confidential. Since the introduction of the Dutch Scheme, it had been envisaged to include the public Dutch Scheme on Annex A of Regulation (EU) 2015/848 on insolvency proceedings (the “European Insolvency Regulation” or “EIR”) and the insolvency practitioners which may be appointed under the Dutch Scheme on Annex B.
On 15 December 2021, the European Parliament and the Council resolved to amend the EIR accordingly. Pursuant to the amendment of the EIR:
- the public Dutch Scheme will be added to Annex A of the EIR, i.e. the list of national insolvency proceedings to which the EIR applies; and
- the restructuring expert and the observer in a public Dutch Scheme will be added to Annex B of the EIR, i.e. the list of national insolvency practitioners to which the EIR applies.
The amended EIR entered into force on the 20th day following its publication, meaning that these amendments are effective as of 9 January 2022.
Therefore, as of 9 January 2022 the EIR applies to a public Dutch Scheme, as a result of which:
- Dutch courts have jurisdiction if the COMI or a branch of a debtor is located in the Netherlands; and
- the Dutch Scheme will be automatically recognized in other EU Member States (with the exception of Denmark and Ireland).
Additionally, changes in other national insolvency laws (such as in Italy, Lithuania, Cyprus, Poland, Germany, Hungary and Austria) are now reflected in Annex A and/or Annex B of the EIR.
Finally, the confidential Dutch Scheme was not and will not be added to Annex A of the EIR. Consequently, the EIR is not applicable to a confidential Dutch Scheme. Shortly summarized, the following applies to jurisdiction and recognition of a confidential Dutch Scheme:
- Dutch courts have jurisdiction if any of the affected parties is domiciled in the Netherlands, or other aspects provide sufficient connection with the Netherlands.
Recognition depends on the international private law regime of the relevant jurisdiction. It is expected that the Dutch Scheme will be recognized in jurisdictions under the UNICTRAL Model Law, unless the relevant jurisdiction requires reciprocity.