Extract of reorganisation measure decided on pursuant to Article 3(1) and (2) of Directive 2001/24/EC of the European Parliament and of the Council of  4 April 2001  on the reorganisation and winding up of credit institutions.
Date: 2005-06-16
Institutions: European Commission
Subjects: Netherlands, credit institution, financial solvency, management audit

C 33/2

EN

Official Journal of the European Union

9.2.2006

Extract of reorganisation measure decided on pursuant to Article 3(1) and (2) of Directive
2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation
and winding up of credit institutions.

(2006/C 33/02)

ALMELO COURT OF LAW

Case No: 71661 HA RK 05.45

Date of ruling: 16 June 2005

Ruling of Almelo Court, civil division, at the request of

opinion that the credit institution cannot, or cannot fully,
meet its obligations in respect of the monies obtained by it,
the credit institution is in a situation requiring a special
remedy in the interests of the joint creditors. DNB states
that, where GZH is concerned, a situation as referred to in
Section 71(2) of the WTK exists and a special remedy is
required.

the limited company
De Nederlandsche Bank N.V.,
registered in Amsterdam,
petitioner,
hereafter known as DNB,
Procurator litis: E.M.M. van de Loo
Lawyer: D.A. van der Stelt, Amsterdam

versus

the private limited company
Geregelde Zaken Holding B.V.,
registered in Hengelo (Overijssel),
with offices at 7500 AC Enschede, Neptunusstraat 15a,
hereafter known as GZH,
respondent,
Procurator litis: E.M.M. van de Loo
Lawyer: A.C. van Campen, Arnhem

Proceedings

By letter dated 13 June 2005, DNB petitioned the court to rule,
with immediate effect, that GZH is in a situation requiring a
special remedy in the interests of the joint creditors and to
appoint J.A.D.M. Daniëls, procurator litis and lawyer of Almelo,
as administrator and a member of the court as delegated judge,
along with an order regarding the duration of the remedy as
the court deems appropriate. DNB also requests that,
if the
petition is upheld, the time of the order be specified to the
minute and a summary of the order be published by the admin-
istrator or the court's bailiff in the Dutch Government Gazette,
the Official Journal of the European Union and two Dutch news-
papers to be specified by the court. Both parties submitted
evidence prior to processing of the petition. The hearing took
place on 15 June 2005. GZH was represented by Mrs B.
Muller-de Graaf, assisted by Mr Van Campen. DNB was repre-
sented by J.W.E. Nagtegaal, an employee of DNB, assisted by
Mr Van der Stelt.

Adjudication of the dispute and grounds for the ruling

1. The petition is based on Section 71(2) of the Wet Toezicht
Kredietwezen [Act on the supervision of the banking industry]
(WTK). The provisions of Section 71(2) empower the court,
at the request of DNB, to declare that, if the solvency or
liquidity of a credit institution subject to the prohibition
contained in Section 6 of that Act is such that DNB is of the

2. DNB claims that GZH is a company or institution the busi-
ness of which is to obtain accounts payable, whether or not
on the due date, and to extend credit and/or make invest-
ments for its own account. The company is therefore a
credit institution within the meaning of Section 1(1) of the
WTK. Such an institution is prohibited from carrying on the
business of credit institution unless it has received a licence
for that purpose from DNB, been granted exemption from
that prohibition by the Minister for Finance or been given a
dispensation from that prohibition by DNB. DNB claims
that no such licence or dispensation has been granted to
GZH. GZH did not contest in court that it is a credit institu-
tion within the meaning of the Act. It declared that it based
itself on information obtained from the Autoriteit Financiële
Markten [Financial Markets Authority] (AFM). As the AFM
did not refer it to DNB for a licence or dispensation, it was
that does not
therefore acting in good faith. However,
detract from the fact that GZH has acted and is acting in
contravention of Section 1(1) of the WTK.

3. Research by DNB's enforcement division revealed that GZH
did not satisfy the requirements as to liquidity and solvency.
The research was based on figures supplied by GZH. The
figures were provisional and unaudited and did not take
account of any tax aspects. It was found that, by means of
interest guarantee certificates, GZH had concluded agree-
ments whereby lenders invested various amounts of money
at a fixed yield of between 7 % and 9 % per annum. In total,
GZH had received monies amounting to at
least EUR
2 033 574,70. Part of that money had been put out in the
form of loans and used to make the monthly interest repay-
ments on the guarantee certificates. There were also invest-
ments in property and a loan of EUR 980 533,03 was
granted to Muller & De Graaf Financieel Advies B.V. GZH is
the sole shareholder in Muller & De Graaf Financieel Advies
B.V. DNB claimed that GZH's liquidity was insufficient to
cover the repayment obligation arising from the interest
guarantee certificates. That obligation amounts to EUR
2 158 574,70. GZH has EUR 424 159,10 immediately
available. There is therefore a short-term shortfall of EUR
1 734 415,60. Key to the ability to cover the repayment
obligation is the value placed on the current account claims
on Muller & De Graaf Financieel Advies B.V. GZH stated in
court that the money it lent to Muller & De Graaf Financieel
Advies B.V cannot be repaid to GZH in the short term.

9.2.2006

EN

Official Journal of the European Union

C 33/3

The medium-term shortfall is EUR 1 605 848,60, the long-
term shortfall EUR 320 368,10.

As far as solvency is concerned, the research showed that
equity, which consists solely of paid-up share capital
less
losses incurred,
is a negative figure, EUR 67 399,54. By
DNB's criteria, that negative equity cannot produce adequate
solvency. The equity will be below any standard in DNB's
solvency guidelines as applicable to credit institutions. DNB
believes that application of the emergency arrangements is a
way to safeguard the interests of creditors and arrive at the
most prudent possible settlement of their claims.

4. In court GZH unconvincingly argued that it did not satisfy
the solvency and liquidity requirements set. Although it did
demonstrate that DNB, in the form of its enforcement divi-
sion, did not take into account all the financial information
and potential revenue that was made available, its explana-
tion did reveal that the amounts involved were not substan-
tial enough to lower the value assigned to DNB's calcula-
tions. The court then ruled that it had been adequately
demonstrated that GZH's solvency and liquidity were such
as to permit
it was in a situation
requiring a special remedy in the interests of the joint cred-
itors.

the conclusion that

5. In court GZH also claimed that application of the emer-
gency arrangements with the concomitant public announce-
ments would have an adverse effect on GZH and Muller &
De Graaf Financieel Advies B.V and that the effect would be
to damage precisely those interests that DNB was trying to
protect. The court concluded that the publicity generated in
this case could not stand in the way of application of the
emergency arrangements. Whether deliberately or not, GZH
had breached the provisions of the WTK and created a situa-
tion of inadequate solvency and liquidity. That necessitates
intervention. The fact that this will or could lead to publicity
does not make intervention unnecessary or unwanted. GZH
also noted that DNB has the opportunity to appoint a ‘stille
curator’ [a silent administrator]. That does not require the
court's approval nor does it have to be publicised. However,

DNB did not opt for that solution and GZH did not request
beforehand the appointment of a silent administrator. The
court will therefore ignore this defence.

6. In light of the above, the court rules that GZH is in a situa-
tion requiring a special remedy in the interests of the joint
creditors. It will therefore appoint an administrator. DNB
has, under Section 71(7) of the WTK, requested the appoint-
ment of J.A.D.M. Daniëls (of Daniëls, Dijkman & Huisman,
lawyers, of Almelo), business address: Ootmarsumsestraat
72, 7602 JR Almelo, Nederland (postal address: PO Box 31,
7600 AA Almelo, Nederland) as administrator. The court
concurred.

7. The court will set the duration of the remedy at eighteen
months, stipulating that
it will run until 16 December
2006. The remedy can, if required, be prolonged pursuant
to Section 71(15) of the WTK.

Ruling

The court

I. declares that Geregelde Zaken Holding B.V. is in a situation
requiring a special remedy in the interests of the joint cred-
itors;

II. appoints as delegated judge member of

the court A.E.
Zweers and as administrator J.A.D.M. Daniëls, procurator
litis and lawyer at Almelo;

III. stipulates

the
16 December 2006;

that

remedy shall be

in force until

IV. stipulates that the administrator shall without delay publish
the announcement prescribed by Section 71(8) of the WTK
the Dutch Government
in the following publications:
Gazette,
the
the European Union,
the Official
Journal of
Twentsche Courant Tubantia and NRC-Handelsblad;

V. declares that

retroactive

effect,
pronouncement.

this ruling be executable with immediate
the day of

to the beginning of

Done at Almelo and pronounced in open court on 16 June 2005 at 14.00 by K.J. Haarhuis
in the presence of the Registrar. Signed for the court and by the Registrar.

Issued as copy/photocopy on 16 June 2006.

Registrar of Almelo Court

Civil Division