In a Dutch insolvency case, an insolvency practitioner (IP), “curator” X, asked the District Court of The Hague to determine an advance on his fee. He also requested the amount of the bankruptcy costs. The invoice covered the period from 1 January 2023 up to and including 24 February 2025, when X was replaced by another IP.
The court heard the supervisory judge regarding the request on the basis of the applicable provisions of the Netherlands Bankruptcy Act (NBA) and, by order of 25 February 2025, set the advance on X’s fee at €155,122.67 and the advance on the amount of the bankruptcy costs at €6,204.91, both including the value added tax due. It appears from the judicial order that the court did not hear the debtor (D).
Both D and a creditor (Y Holding) lodged an appeal in cassation against the Hague order in a statement of claim filed with the Netherlands Supreme Court on 26 May 2025. Y Holding explained that it was a creditor in D’s insolvency proceedings. It was litigating against the Dutch IP regarding the claim it believed it has in the insolvency. It submitted a judgment in which that claim was dismissed by the District Court and an interlocutory judgment of the Court of Appeal (dated 20 May 2025) showing that an appeal against that judgment was pending.
The core question is: was the District Court obliged, when determining an advance on the IP’s fees, to hear the insolvent debtor and the creditor prior to issuing its order?
Both parties referred to Article 27(4) of the Preventive Restructuring Directive 2019/1023, arguing that it includes an obligation for member states to provide an appropriate procedure to settle disputes regarding the determination of an IP’s fee. They said the court should have interpreted the applicable article of the Dutch Act (Article 71(3) of the NBA), which does not give the insolvent debtor and the creditors the right to be heard regarding the determination of an IP’s fees, in accordance with the Directive, or at least applied Article 27(4) of the Directive directly, in order to hear D and Y Holding as interested parties regarding X’s request.
Article 27 relates to supervision and remuneration of practitioners. In its core, it requires that member states should put in place appropriate oversight and regulatory mechanisms to ensure that practitioners’ work is effectively supervised, with a view to ensuring that their services are provided impartially and independently and in an effective and competent way. Moreover, Article 27 says member states shall ensure that information about the authorities or bodies exercising oversight over practitioners is publicly available.
The original proposals for European involvement in the remuneration of IPs went further. Early drafts of the Directive said member states shall encourage, by any means which they consider appropriate, the development of, and adherence to, voluntary codes of conduct by practitioners in the field of restructuring, insolvency and second chance, and should even introduce codes of conduct, which should be enshrined in statutes. Such rules were envisaged to include, at least, provisions on training, qualification, licensing, registration, personal liability, insurance and good reputation. The wording of Article 27(3) as ultimately adopted is only a pale reflection of these wishes. Article 27(3) merely provides that member states may encourage the development of, and adherence to, codes of conduct by practitioners. One would expect that member states and IPs and their national organisations should not need the encouragement now laid down in Article 27(3).
Moving to Article 27(4) of the Directive, on which the parties relied. In its text, it just provides that member states shall ensure that practitioners’ remuneration is governed by rules that are consistent with the objective of an efficient resolution of procedures. Member States shall also ensure that appropriate procedures are in place to resolve any disputes about remuneration. From various partial overviews and my general knowledge of European practice, the rules on remuneration of practitioners vary significantly across the member states. The Directive does not seek to harmonise these rules. Given the text of Article 27(4), it should come as no surprise that the Dutch Supreme Court could decide the case before it with a brief rejection.
Referring to the specific grounds set out in the opinion of the court’s independent adviser, the Advocate General, the court said there can reasonably be no doubt that Article 27(4) of the Directive does not oblige member states to establish a procedure in which the insolvent debtor and the creditors must be heard regarding the determination of the IP’s salary. At the end of its rejection, the Supreme Court formulated the rule that it therefore sees no reason to refer preliminary questions on this matter to the Court of Justice of the European Union.
With this brief stanza, the Supreme Court applied what I regard as the recently-applied “improved rule” regarding the reasoning of judgments, as decided by the CJEU in March 2026. In short, this rule says that applicable EU law must be interpreted as precluding national legislation under which national courts of last instance may rule on questions relating to the interpretation or validity of provisions of EU law raised by one of the parties to a dispute, in a summary fashion. They may do so without adequately explaining its reasoning, irrespective of whether or not that question is accompanied by an express request to make a reference for a preliminary ruling, unless it sets out the specific and concrete reasons why one of three exceptions to the obligation to make a reference for a preliminary ruling established in 1982 (see the reference to Cilfit below) applies in the case in question.
Those exceptions are: if (a) the question of interpretation of Union law raised is not relevant to the decision in the proceedings before the national court, (b) the relevant provision of Union law has already been interpreted by the Court of Justice (“acte éclairé”), or (c) the correct interpretation of Union law is so evident that there can reasonably be no room for doubt regarding it (“acte clair”).
In short, there will be hardly any European interference with insolvency practitioners’ remuneration.
And in the future? What provisions are there in the Certain Aspects Directive 2026/799 of April this year? See my blog at https://bobwessels.nl/blog/2026-06-doc2-certain-aspects-directive-2026-799-a-patchwork-without-cross-border-rules/. To the reassurance, I assume, of many readers, the area of IP remuneration is a European no-go.
The “Certain Aspects” Directive protects a sort of “iron stock” of national subjects by stating, in recital 35 of the Directive, that the provisions of this Directive regarding pre-pack proceedings do not replace national substantive rules, “… in particular those on the ranking of creditors’ claims, the distribution of proceeds, the nature, scope and form of creditors’ participation, or the remuneration of the insolvency practitioner”.
I expect the question of whether this restraint is appropriate in a pre-pack or in other matters, to be back on the EU agenda soon.
References
ECJ 6 October 1982, Case 283/81, EU:C:1982:335 (Cilfit).
Netherlands Supreme Court 17 April 2026, ECLI:NL:HR:2026:662.
CJEU 24 March 2026, Case C‑767/23, ECLI:EU:C:2026:243 (Remling)
This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication and the column appeared in GRR on July 15, 2026. See www.globalrestructuringreview.com.