16 January 2023
The Trustee in Bankruptcy (Further Measures) Act (Wet versterking positie curator) came into force on 1 July 2017.
This law imposes a more stringent obligation to provide information and records on those involved in a bankruptcy and gives the trustee in bankruptcy additional ‘tools’ to obtain information and records. This law also applies to digital accounting records in a bankruptcy. I would like to explain what this means.
One clause that came into force on 1 July 2017 is Article 105b of the Bankruptcy Act (Faillissementswet). This entails that any third party, including accounting firms and an external auditor, holding any accounting records of the insolvent company or bankrupt person must make such records (books, records and other data carriers) available to the trustee in bankruptcy in full and completely intact. If necessary, including the means to make the content readable within a reasonable period of time. This ensures that a trustee in bankruptcy is provided with the complete accounting records of the insolvent company or bankrupt person.
This also includes accounting records in the cloud, according to a ruling by the Court in Preliminary Relief Proceedings in early April 2022. Very briefly: in this case, Microsoft did not want to give the trustee in bankruptcy of ATB access to the cloud because of possible sanctions. The trustees in bankruptcy were not given access to that part of the insolvent company’s accounting records. The Court in Preliminary Relief Proceedings was brief and to the point in its ruling. Under Article 105B of the Bankruptcy Act, a trustee in bankruptcy must have access to the full accounting records of the insolvent company, including accounting records located in the cloud.
For a trustee in bankruptcy, it is very essential to have the entire accounting records. Otherwise, he cannot settle the bankruptcy. This ruling once again demonstrates the importance of this. It is therefore highly advisable for parties to properly store and preserve accounting records of customers/third parties. In the event of bankruptcy, the trustee in bankruptcy will ask for these records. And you are obliged to make these available.
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