Caught on Friday, fired on Monday: too late Posted on 10 June 202610 June 2026 by Iris Taling A security guard is caught stealing on Friday. His employer seeks legal advice and, after the weekend, issues a summary dismissal. Sounds logical, does not it? Yet the subdistrict court ruled otherwise in a recent judgment (ECLI:NL:RBDHA:2026:8543): the dismissal was too late. In this blog, we discuss what went wrong and why even a few hours can be fatal.Conditions for summary dismissalSummary dismissal is the most severe sanction under employment law. To be legally valid, three conditions must be met (Section 7:677 of the Dutch Civil Code):1. There must be a compelling reason;2. The dismissal must be given immediately;3. The urgent reason must be communicated to the employee immediately.Theft is a classic example of an urgent reason: the law explicitly states that an urgent reason may exist where the employee is guilty of theft or other criminal offences.The requirement of immediacy deserves special attention. The Supreme Court (ECLI:NL:HR:2023:1668) has ruled that the decisive factor is the time at which the urgent cause came to the attention of the person authorised to grant the dismissal. Whilst an employer may take some time to conduct an investigation or seek legal advice, they must act promptly.What happened?The employee in this case had been working as a security guard for a security company (TCS) since 2018. On Friday 12 December 2025, TCS received a report from DHL that the employee was suspected of stealing cigarettes from a colleague. The director of TCS went to the site, viewed CCTV footage and confronted the employee with it that same afternoon. The employee immediately admitted to the theft.The director wanted to seek legal advice but was unable to reach his solicitor that Friday. The employee was not suspended, not placed on leave, and was not required to hand in his access pass. The employee was sent home.On Monday, the employee simply turned up for work as usual for his afternoon shift. That Monday morning at around 11:00, the director finally spoke to his lawyer, who advised proceeding with summary dismissal. It then took until 15:08 – more than four hours later – before the employee was actually dismissed.The subdistrict court’s rulingThe subdistrict court was clear: the summary dismissal should have been issued earlier. Preferably on Friday, but in any case no later than immediately after the advice was given on Monday morning. The fact that the employer was waiting for documents from his solicitor – including a draft settlement agreement – was insufficient justification. After all, the director had already received the advice at 11:00 am that summary dismissal was justified. He should have acted immediately at that point.The subdistrict court also took into account that the employer had not taken the measures one would expect in such a serious case: no suspension, no removal from active duty and no blocking of the access pass. The employee was able to carry on working on Monday as if nothing had happened. This is inconsistent with the employer’s position that the incident was so serious that dismissal was the only option.The summary dismissal was therefore not given immediately and was thus not legally valid.Serious culpable conduct and fixed compensationAlthough the dismissal was not legally valid, the theft naturally remained a fact. The subdistrict court ruled that the employee had acted in a seriously culpable manner. It is precisely of a security guard that one may expect that he will not be guilty of theft. The employee was therefore not entitled to a transition payment.As the summary dismissal was not legally valid, the termination was irregular: TCS had not observed the notice period. The employee was therefore entitled to the fixed compensation under Section 7:672(11) of the Dutch Civil Code. This amounted to two months’ salary: over €8,000 gross.Had the employer acted four hours earlier, immediately after receiving the telephone advice at 11:00, these costs would in all likelihood have been avoided.The lesson for employersThis ruling clearly illustrates how strict the requirements are for summary dismissal. If an employer considers an employee’s conduct so serious that dismissal is the only option, they must act accordingly. This means:Immediately suspending or placing the employee on leave as soon as the facts are known, so that the urgency is clear.Seeking legal advice promptly if necessary, but not making the dismissal contingent on the drafting of a settlement agreement or other documents.Communicating the dismissal immediately after receiving the advice, without delay.Because even a few hours can be fatal.In conclusionDo you have any questions about summary dismissal or would you like to know how best to proceed as an employer? Please feel free to contact us. We would be happy to help.
Searching through employees’ emails: what are your rights as an employer? Posted on 29 April 202629 April 2026 by Iris Taling Employees communicate via email on a daily basis. As a result, the work email inbox contains a wealth of information: about projects, clients, but also about the employee’s own performance. As an employer, it may be tempting to look through an employee’s email inbox, for example, if there are suspicions of poor performance, secondary employment or fraud. But is that actually allowed? In this blog, we explore the possibilities and limits of searching through work emails.Privacy in the workplaceEmployees are also entitled to privacy in the workplace. This right is protected by Article 8 of the European Convention on Human Rights (ECHR) and the General Data Protection Regulation (GDPR). Checking or searching a work email account constitutes a form of monitoring and infringes upon that right to privacy.However, this does not mean that it is never permitted. An employer must always act with due care and weigh up their interests against the employee’s right to privacy.The Bărbulescu frameworkThe most important framework for assessing email monitoring by employers stems from the case law of the European Court of Human Rights (ECHR). In the case Bărbulescu (ECHR 5 September 2017), the employer discovered that a Romanian employee was using his work email account to send private messages to, amongst others, his fiancée and brother. This ultimately led to his dismissal.The Court ruled that the employee’s privacy had been violated. The right to private life also applies during working hours. An employer may not monitor employees’ email and internet use without clearly informing them of this in advance. As the employee in this case had not been warned, the monitoring was unlawful.The ECHR applies various factors that are also used in Dutch case law:Was the employee informed in advance about the possible monitoring?How extensive is the monitoring and how serious is the infringement of privacy?Does the employer have legitimate grounds justifying the monitoring?Could monitoring have been carried out using less intrusive methods?What are the consequences of the monitoring for the employee?Have adequate safeguards been provided to the employee?The Arnhem-Leeuwarden Court of Appeal (ECLI:NL:GHARL:2022:6203) emphasised that these factors do not constitute a strict checklist, but must be weighed up in conjunction with one another.Providing advance notice is crucialOne of the most important points is whether the employee has been informed in advance of possible monitoring. In the ING case (ECLI:NL:GHARL:2022:6203), the court found that the employee had not been informed in advance of the possible monitoring.It is essential that the possibility of monitoring business emails is made known in advance. It is not necessary to specify exactly when monitoring will take place, but it must be made clear that monitoring may occur and in what manner. This can, for example, be set out in a staff handbook or IT regulations.Legitimate grounds for monitoringAn employer requires legitimate grounds to search an employee’s email. Combating fraud is a classic example. In the aforementioned ING case, ING argued that email monitoring was necessary due to indications of fraud and possible money laundering.The court recognised that this could, in principle, be a legitimate reason, but also emphasised that the specific circumstances must be clear in order to assess proportionality. A reference to an anonymous tip proved insufficient justification in this case.RisksIf email monitoring is carried out unlawfully, this can have serious consequences. The Dutch Data Protection Authority, for example, may impose a fine. Furthermore, in dismissal proceedings, a (higher) fair compensation may be awarded to the employee if there has been a breach of privacy.In conclusionSearching an employee’s email inbox is not prohibited by definition, but it is certainly not without risk. An employer who monitors emails without a policy, without clear grounds or without properly weighing up the interests involved runs the risk of infringing the employee’s privacy. At the same time, where there are serious suspicions, there is certainly scope for intervention. In such cases, informing the employee in advance is essential.Do you have any questions about monitoring employees’ work email accounts? Please feel free to contact us. We would be happy to help.
AirBnB rentals and the Services Directive: the CJEU brings clarity Posted on 17 April 202617 April 2026 by Lucia Tellegen Does short-term AirBnB-style rental of residential accommodation fall within the scope of the Services Directive? The Court of Justice of the European Union answered this question in the affirmative on 22 September 2020. National and municipal authorisation schemes for this type of rental are permissible, provided they satisfy the requirements of proportionality and non-discrimination. This article discusses Advocate General Bobek’s opinion and the Court’s judgment, and examines the implications for municipalities seeking to cap the number of permits.AG Bobek: Services Directive applies to short-term rentalsIn his Opinion of 2 April 2020, Advocate General Bobek concluded that the Services Directive applies to the short-term rental of furnished accommodation in the sharing economy. The objective of addressing a shortage of housing for long-term occupation can constitute an overriding reason in the public interest capable of justifying a national authorisation requirement — provided this does not amount to a de facto expropriation or a hidden diminution in value.National and municipal measures are permissible under the Services Directive, subject to compliance with the requirements of proportionality and non-discrimination. AG Bobek considered an authorisation scheme to be a proportionate measure, including where the permit conditions are tailored to local circumstances. He did, however, express reservations about additional requirements taking the form of a compensation obligation — such as the French system requiring the simultaneous conversion of non-residential property into residential accommodation.CJEU agrees: short-term rental is a ‘service’ under the Services DirectiveIn its judgment of 22 September 2020, the Court held that the Services Directive applies to rules governing the repeated, short-term, whether professional or non-professional, rental for consideration of furnished residential accommodation to transient customers who do not establish their domicile there. Such activities are “services” that are not excluded in any way from the scope of the Services Directive.A scheme subjecting such rental activities to prior authorisation constitutes an “authorisation scheme” within the meaning of the Services Directive. Such a scheme must not operate in a discriminatory manner, must be justified by an overriding reason in the public interest, and the objective pursued must not be attainable by a less restrictive measure. The authorisation criteria must also be justified by an overriding reason in the public interest, proportionate, published in advance, and clear and unambiguous.The Court confirmed that addressing a shortage of housing for long-term rental — in order to improve access to housing and combat tightening conditions in the property market — constitutes an overriding reason in the public interest. The national scheme at issue was held to be proportionate: it is limited in scope to a specific rental activity, does not extend to the landlord’s primary residence and introduces an authorisation scheme of limited geographical scope. A less restrictive measure — such as a notification system with penalties applied after the fact — would not suffice, as it would not allow the ongoing rapid development causing the housing shortage to be curbed immediately and effectively.Compensation obligation: permissible in principleNotably, the Court appears to have little objection to making the grant of a permit conditional on a compensation obligation — such as the French requirement to simultaneously convert non-residential property into residential accommodation. The Court considers this to be, in principle, an appropriate instrument for preventing the housing shortage from worsening and for fostering social diversity.The national court must, however, verify that the obligation actually provides a solution to the housing shortage identified in the municipality concerned, that it is tailored to the local rental market and that it is compatible with carrying out the rental activity in question. The court must also ensure that the obligation can be met through multiple compensation mechanisms operating under reasonable, transparent and accessible market conditions. Since a national court cannot determine all of this independently, this effectively imposes a heightened duty to state reasons on the municipality concerned.Capping the number of permits: additional requirementsClosely related to the compensation obligation is the question of how the Services Directive applies to a policy decision to cap the total number of permits issued. The Directive imposes additional requirements on scarce authorisations under Articles 11 and 15. While the Court has found a compensation obligation to be acceptable in certain circumstances, a cap on permits goes further: it temporarily closes off the market, constituting a more significant restriction on the freedom to provide services.From a proportionality perspective, a less restrictive instrument — such as a compensation obligation — should therefore be preferred. Municipalities that wish to impose a cap on the number of permits will need to demonstrate that the objectives pursued cannot be achieved by such a less restrictive instrument. A compensation obligation, after all, still leaves room for developers to pursue their activities.
Concretising decisions of general application (CBAS) versus generally binding rules (AVV) in Dutch administrative law Posted on 17 April 202617 April 2026 by Lucia Tellegen In Dutch administrative law, the distinction between a concretiserend besluit van algemene strekking (CBAS — concretising decision of general application) and an algemeen verbindend voorschrift (AVV — generally binding rule) determines whether a party has access to the administrative courts. As a rule, no right of appeal lies against an AVV; against a CBAS, it does. This makes the distinction not merely academic, but directly relevant to legal protection in practice. This article explains the difference, illustrates it with examples and discusses the latest legal developments.Decisions of general application: the frameworkA decision (besluit) is a written act by an administrative body constituting a public-law legal act (Article 1:3(1) of the General Administrative Law Act — Awb). The Awb distinguishes between individual decisions (beschikkingen) — directed at a specific or individual case — and decisions of general application (besluiten van algemene strekking, BAS). Within the latter category, the distinction between AVV and CBAS is the most significant for legal practice.What is a generally binding rule (AVV)?A generally binding rule is an externally operative, binding rule issued by a public authority acting pursuant to a statutory power. An AVV contains general, abstract rules that are capable of repeated concrete application without further justification.By way of example: under the Municipalities Act (Gemeentewet), a municipal council is authorised to adopt by-laws that it considers necessary in the interest of the municipality. The General Local By-Law (Algemene Plaatselijke Verordening, APV) is the primary instrument for this purpose. The APV of Amsterdam provides, for instance, that it is prohibited to hold an event without a permit from the mayor — an AVV. Equally an AVV is the provision that permit applications for major events will not be processed if the event does not appear on the events calendar for that year. No right of appeal to the administrative courts lies against the decision to incorporate such provisions into the APV.What is a concretising decision of general application (CBAS)?A concretising decision of general application specifies the scope of application of a generally binding rule by reference to time, place, person or object. A CBAS is distinguished from an AVV by the fact that it does not lay down an independent norm, but rather gives concrete effect to an existing one.As an example, the mayor of Amsterdam adopted the events calendar for 2025 by decree of 30 December 2024. The calendar determines which major events may take place in 2025, specifying the event, date, location and maximum number of visitors. This decision is a CBAS — and a right of appeal to the administrative courts does lie against it.An important caveat: a CBAS may also be included in an APV. The Amsterdam District Court held in 2011 that an APV provision stating that the sound of a carillon does not constitute noise nuisance was a CBAS rather than an AVV (ECLI:NL:RBAMS:2011:BQ3933).Distinction between AVV/CBAS not always clearThe line between an AVV and a CBAS is not always straightforward in practice. Consequently, there are several decisions of courts and tribunals where the character of certain decisions is addressed (see, for example, ECLI:NL:RVS:2022:517 on the heat plan or ECLI:NL:CBB:2021:425 on the decision to designate main railways).Current legal development: A-G’s opinion on health insurance schemeIn July 2024, the President of the Administrative Jurisdiction Division of the Council of State asked State Councillors Advocate General Widdershoven and Snijders to issue an opinion on the nature of amending an appendix to the Health Insurance Regulations. Annex 1A lists medicines for which a reimbursement ceiling has been set; Annex 1B lists those for which no such ceiling applies. The central legal question is whether a ministerial decision to place a medicine on one of these annexes constitutes an AVV or a CBAS.The President also asked the State Councillors to formulate general principles for determining the character of decisions at the interface of AVV and CBAS, and to address the consequences of that characterisation for judicial review and the possibilities for legal protection available to third parties. The forthcoming opinion is expected to provide valuable guidance for legal practice.
Neighbour path (buurweg): what is it, when does it still exist and how does it end? Posted on 17 April 202617 April 2026 by Lucia Tellegen The buurweg — a shared access path under Dutch law — was abolished in 1992 with the introduction of the new Civil Code, but continues to play a role in legal practice to this day. Existing buurwegen are preserved under Section 160 of the Transitional Act NBW. This article explains what a buurweg is, when one came into existence, how it ends, and in what important respects it differs from an easement (right of way).What is a buurweg?Under Article 719 of the former Civil Code, a buurweg existed when owners of paths, roads or lanes had given the relevant land a common purpose as a means of access for several neighbours. A buurweg may be located on the land of one or more owners.In Dutch residential areas, which are often laid out as blocks and courtyard clusters, this has considerable practical significance: many houses have a rear access path connecting the back garden to the public road. Before 1992, that rear access could take the legal form of a buurweg. Since then, new buurwegen can no longer be created — but existing ones remain in full use. In 2017 alone, the search term ‘neighbour road’ on www.rechtspraak.nl yielded 19 more judgments from 2017. This makes the neighbour road doctrine still relevant today.When did a buurweg come into existence?A buurweg came into existence through an express or tacit declaration of intent by the owner or owners of the land in question — or by a person holding an equivalent proprietary right. Merely tolerating the use of land as a path was insufficient; a positive act of will was required.Users are themselves responsible for maintaining the buurweg, unless special circumstances give rise to a partial maintenance obligation on the part of the landowner. The owner may, of course, also be a user of the buurweg and therefore bear maintenance obligations in that capacity.How does a buurweg end?A buurweg ends only by the joint consent of all those entitled to use it. Such consent may be given tacitly. If consent to terminate is absent — or cannot be inferred from silence — the buurweg continues to exist.Buurweg versus easementThe fundamental difference between a buurweg and an easement lies in the legal nature of the right. An easement is a real right (a proprietary right); a buurweg is a personal right (an obligatory right). In practical terms, this has two important consequences.First, a buurweg need not be evidenced by a notarial deed registered in the public registers, as is required for the creation of an easement. Second, the designation of land as a buurweg is enforceable against a new owner even if that owner consulted the land register and found no reference to a buurweg.Prescription and the buurwegBecause a buurweg is not a limited proprietary right, the rules on prescription differ from those applicable to easements. The right of action to remove obstacles that obstruct the buurweg becomes time-barred after 20 years from the day on which immediate removal could first have been demanded. Once that period has elapsed, the right of action to remedy the infringement expires.Crucially, however — and this is where the buurweg differs from an easement — the substantive right itself survives. The buurweg cannot be extinguished by prescription, because it can only be terminated by the joint consent of all those entitled to it. If the obstacles are removed, the buurweg is immediately usable again as before. Such removal must, of course, be lawful: only the person who placed the obstacles may validly remove them.Recent case lawIn practice, recent rulings on the buurweg broadly revolve around two questions: whether a buurweg came into existence at all, and, if so, whether it was validly terminated. Given the number of judgments that continue to appear each year, the buurweg — more than 30 years after its formal abolition — remains a living doctrine in Dutch property law.
Brad Pitt in Amsterdam: what do you need to arrange with the municipality to film professionally in public spaces? Posted on 17 April 202617 April 2026 by Hannah van Beurden Last month, Brad Pitt was spotted walking down Amsterdam’s canals – tousled hair and somewhat incognito. The reason: filming for The Riders, a film about an Australian man who sets out to find his missing wife. But before those images make it to the big screen, the production needs to obtain a considerable number of permits. What does a film producer need to arrange in order to film professionally in public spaces? And what role does the municipality play?Permit filming in public space: the legal frameworkProfessional film shoots in public spaces touch on a range of competing interests: the flow of traffic, public order, the residential amenity of local residents and the safety of bystanders. The municipality is the designated authority to regulate and balance these interests.The municipal council adopts by-laws under Article 149 of the Municipalities Act (Gemeentewet) where it considers them necessary in the interest of the municipality. These by-laws form the basis of the General Municipal By-law (Algemene Plaatselijke Verordening, APV), which contains, among other things, permit and notification systems for the use of public spaces. Depending on the nature of the shoot, the Road Traffic Act (Wegenverkeerswet) and the Environmental Plan (Omgevingsplan) may also be relevant. Where filming activities qualify as an environmental planning activity, for example through the temporary placement of set pieces or structures, an environmental permit may be required under Article 5.1(1)(a) of the Environment and Planning Act (Omgevingswet).Applying for a film permit in Amsterdam: the Film ProtocolFor Amsterdam, the Film Protocol Amsterdam, adopted by the municipal executive on 13 June 2023, is the starting point. The protocol sets out which public law authorisations are required for filming activities in Amsterdam’s public spaces and how these are to be applied for.The most common authorisations are an RVV exemption (allowing vehicles to be driven in places where this is normally prohibited, such as pavements or squares), a temporary traffic measure (TVM, for closing off roads or temporarily using parking spaces), an object permit (for placing temporary, non-movable objects such as skips, portable toilets or set pieces) and a TVW (temporary hire of prop weapons).The protocol uses four impact categories (A through D). The minimum lead time before the start of filming runs from three working days for a small-scale shoot (category A) to thirty working days for a large-scale production (category D). Category D additionally requires coordination with the mayor’s cabinet. Full responsibility and liability for a correct and timely application rest with the producer. In the event of non-compliance, the municipality may halt filming, impose fines and withdraw its cooperation indefinitely.Filming in other Dutch municipalitiesEvery municipality has its own rules and policies. Larger cities typically have a dedicated film office and an established protocol; smaller municipalities may operate less formalised procedures, but still require the same public law authorisations. It is therefore always advisable to contact the relevant municipality at an early stage.Conclusion: early preparation pays offFilming professionally in public spaces requires thorough legal preparation. The applicable rules derive from a variety of sources, from the APV to the Environmental Plan, and translate into a series of permits and exemptions. Early contact with the municipality, a careful assessment of the impact of the shoot and a well-planned application process are essential to avoid delays or interruptions.Do you have questions about the permits required for your film production, or would you like guidance through the application process? Please do not hesitate to contact our specialists.
Workplace misconduct: what do you need to do as an employer? Posted on 17 April 202617 April 2026 by Charlotte Urlus Workplace misconduct is a topic that is increasingly making its way onto HR agendas. It often starts with a “joke”. A comment about someone’s appearance, a sexually charged remark dismissed with “you should be able to take it”, or a nickname that just won’t go away. What begins as humor can escalate into harassment, bullying or discrimination — sometimes with serious personal and legal consequences. In this blog, you will find out when behavior crosses a line, what obligations apply to employers, and how to respond appropriately when a report is made.When does behavior constitute workplace misconduct?Transgressive behaviour is behaviour to which one of the parties does not (voluntarily) consent. Examples Workplace misconduct is behavior that one of the parties does not (voluntarily) consent to. Think of sexual harassment, bullying, discrimination or other forms of unwanted conduct.Common examples include:Someone being treated unequally or differently on the grounds of gender, background or sexual orientation.Offensive remarks being made, persistent gossip, or inappropriate jokes being normalised — with the threshold for speaking up remaining high, as there is a real risk that things will only get worse.Sexually charged comments being made, or someone being touched without their consent.The common thread? What matters is how the person on the receiving end experiences it — not what the other person intended.Your obligations as an employerAs an employer, you are legally required to provide a safe working environment. Under Section 3 of the Dutch Working Conditions Act (Arbeidsomstandighedenwet, or Arbowet), you must implement policies aimed at good working conditions, including the prevention and limitation of psychosocial workload. This covers at least aggression and violence, sexual harassment, bullying and direct or indirect discrimination.That duty of care translates into three concrete steps. The first is prevention: establish a preventive policy and map the risks of workplace misconduct through a mandatory Risk Inventory and Evaluation (Risico-inventarisatie & -Evaluatie, or RI&E). The second step is investigation: as soon as you suspect that misconduct is occurring, take action and conduct a careful and proportionate investigation — without jumping to conclusions. The third step is taking measures: address misconduct with appropriate disciplinary action.If you fail to take appropriate measures, you risk liability for the harm suffered by an employee. The burden of proof lies with you: you must demonstrate that you have fulfilled your duty of care. The consequences of negligence can be significant — from civil liability for material and immaterial damages to discrimination claims and serious reputational harm.Prevention: start before there is an incidentEstablish a code of conduct. Clearly describe what is and is not acceptable — including in informal situations and outside working hours. Set out which behaviors are not permitted and what the consequences are. Write the code in plain language and have it reviewed by a lawyer.Create a reporting protocol. Make sure everyone knows what happens when a report comes in. A clear step-by-step procedure builds confidence and provides structure.Appoint a confidential adviser. Whether internal or external, a confidential adviser is an accessible point of contact where employees can turn in confidence, without formal steps being taken immediately. The adviser listens and informs employees of the options available to them.Lead by example. Standards are set through behavior, not just policy. Actively reject unwanted behavior — even when it is “just a joke”.Foster a safe reporting culture. People only come forward when they know that something will be done with their report. Show that reports are taken seriously and that those who report are protected.When a report comes inWhen a report is received, decisive action is required — but without rushing to conclusions. Take the time for a careful and impartial investigation and ensure that the person who made the report is not further disadvantaged during that process. Do not treat the accused as guilty from the outset; the investigation must first be completed. Document everything, from the initial conversation to the final decision. That documentation is not only good governance — it is also your defence if the matter has legal consequences.ConclusionWorkplace misconduct often starts subtly and is not always easy to recognize or to raise. As an employer, it is important to have preventive policies in place, to encourage a culture in which people feel safe to speak up, and to act swiftly and carefully when incidents occur. Every situation is unique and requires a tailored approach: when in doubt, it is advisable to seek legal advice before taking action.Are you an employee dealing with unwanted behavior at work and unsure where to start? Or are you an employer facing a report or looking to strengthen your policies? Feel free to get in touch — we are happy to help you find the right approach..
Execution in sight of bankruptcy: no pauliana Posted on 31 March 20261 April 2026 by Joost Van der Grinten Bankruptcy pauliana is a powerful tool for the trustee to reverse legal acts of the debtor performed shortly before the bankruptcy for the benefit of the joint creditors. But what applies when a payment is not made voluntarily by the debtor, but is obtained through execution? That question was at the centre of a 3 December 2025 judgment by the cantonal judge of the Limburg District Court (ECLI:NL:RBLIM:2025:12090). The judge ruled that this execution act could not be set aside by invoking the bankruptcy pauliana of Section 47 Fw. In this blog, we set out the ruling, the legal background and the meaning for practice.The bottom line: execution after filing for bankruptcyThe present proceedings involved the situation where a creditor (also a minority shareholder and former director) had a claim against a debtor (company) that was due and payable by virtue of a default judgment. The creditor had itself filed for the debtor’s bankruptcy with the court. After the bankruptcy petition, the creditor placed an execution garnishment against the debtor’s bank. The bank then paid an amount to the bailiff, who then forwarded it to the creditor. The next day, the debtor was declared bankrupt.The trustee in bankruptcy of the now bankrupt debtor took the position that there was a fraudulent act in administration and set aside the payment out of court. Subsequently, the trustee claimed repayment of the amount received from the creditor to the estate. The trustee based this claim on Section 47 Fw (bankruptcy pauliana on satisfaction of due debts). According to the trustee, the payment was fraudulent because the creditor knew at the time of receipt that the debtor’s bankruptcy had already been filed for; after all, he himself had filed for bankruptcy.Section 47 Fw: the bankruptcy pauliana on satisfaction of due debtsSection 47 Fw reads as follows (freely tranlated):“Payment by the debtor of a due debt may be set aside only if it is shown, either that he who received the payment knew that the debtor’s bankruptcy application had already been filed, and there was no suspension of the processing of that application in accordance with Articles 3d(2) and 376(2)(c) or that the payment was the result of consultation between the debtor and the creditor, the purpose of which was to favour the latter over other creditors by that payment.”The central question in this case was whether the term “satisfaction by the debtor” in section 47 Fw also includes the situation where a debt is collected via execution – after attachment by a creditor – a form of payment over which the debtor has no control.The trustee argued that there is no substantial distinction between a voluntary payment by the debtor and a payment obtained through enforcement measures. The subdistrict court reached a different opinion.Court’s opinion on section 47 Fw and enforcementBased on the legislative history of Section 47 Fw, the judge ruled that a payment obtained by execution cannot be affected by invoking Section 47 Fw, even if the executing creditor knows that the bankruptcy has already been filed (freely translated):“There has been no satisfaction of the claim by the debtor. It follows from the legislative history that this is a crucial condition and any other interpretation would go against the intentions of the legislator. In addition, the explanatory notes to Section 47 Fw also explicitly state that this is a case unaffected by Section 47 Fw. (…) This means that the extrajudicial annulment has no effect. The claim is dismissed.”The trustee has filed an appeal.Significance for practiceThis judgment confirms a line in (lower) case law: Amsterdam District Court 5 February 2003, ECLI:NL:RBAMS:2003:AG8282 (TvI 2003, p. 96) and Oost-Brabant District Court 25 February 2015, ECLI:NL:RBOBR:2015:1410. Both cases ruled, with different motivations, that the enforcement could not be impaired under Section 47 Fw because there was no “satisfaction by the debtor” within the meaning of the Bankruptcy Act.For creditors who know that their debtor’s bankruptcy has been filed, in the current state of the law there may still be a last chance to get their claim paid before the bankruptcy declaration: the enforcement of a obtained enforceable title by attachment and enforcement. These enforcement measures – if the formal requirements are met – are in principle not set aside on the basis of the bankruptcy pauliana of Section 47 FW. This underlines the importance of timely litigation, obtaining an enforceable title quickly and energetic attachment and enforcement policies.Wieringa is happy to assistWieringa Advocaten is your specialist in bankruptcy law, attachment and execution. Our insolvency team advises and litigates for trustees, creditors, directors and companies on bankruptcy pauliana, distraint and distribution of the estate. We are happy to assist you with practical, strategic and incisive advice.As a result of the above, do you have any questions about bankruptcy pauliana, article 47 Fw, debt collection, seizure or enforcement of enforceable titles? Feel free to contact Wieringa Advocaten in Amsterdam. Our specialists in bankruptcy law, attachment and execution will be happy to think along with you.
No due process, no valid dismissal Posted on 20 March 202620 March 2026 by Charlotte Urlus It started as an ordinary night shift for a PostNL driver. Picking up packages at the distribution center, sealing the trailer, and heading to the next location. But upon arrival, several packages had been broken open. Five mobile phones and a hard drive were missing.PostNL’s security department examined the camera footage and discovered unusual behavior. The footage showed that the driver had stood in the trailer for approximately four minutes during loading – without turning on the light. The driver’s explanations were unconvincing. He said he was taking it easy, waiting until he could continue loading, or picking up fallen boxes. But why not turn on the light? The employer pointed directly at the driver: he had been the only one with access to the cargo. On 27 July 2023, he was summarily dismissed.The Court of Appeal’s judgment: compelling evidenceThe employee challenged the dismissal before the subdistrict court and won. PostNL appealed (ECLI:NL:GHSHE:2024:2884). The ‘s-Hertogenbosch Court of Appeal reconstructed what had happened and reached a clear conclusion: the entire loading and unloading process had been filmed from all angles. No one other than the driver had access to the packages and the footage did not show anyone else handling the cargo. The Court of Appeal ruled that the only possible conclusion was that the driver had opened the boxes and taken the contents.The problem: the lawyer could not view the footageThis is where the procedural problem begins. The camera footage was crucial evidence, but the employee’s lawyer simply could not open the files beforehand. The files were encrypted and required special software that is not standard on computers. Attempts to view the footage failed, despite instructions from PostNL and even a USB stick delivered by courier.During the hearing before the Court of Appeal, the footage was played by an IT employee, while the employee’s lawyer saw its contents for the first time. The Court of Appeal had viewed the footage in full beforehand. The lawyer objected: he had not had the opportunity to identify exculpatory passages or to prepare.A fair trial takes precedenceThe driver appealed to the Supreme Court – and won (ECLI:NL:HR:2026:409). This is where the legal crux of the case lies. The right to a fair trial is enshrined in Article 6 of the European Convention on Human Rights (ECHR). An essential component of this right is the principle of equality of arms: both parties must have an equal opportunity to present their case. In the Netherlands, this principle is also anchored in Article 19 of the Dutch Code of Civil Procedure, which safeguards the right to be heard.The Supreme Court ruled that the Court of Appeal had violated these fundamental rights. The Court of Appeal had been aware that, due to the encryption, the employee’s lawyer had not succeeded in viewing the footage. Therefore the principles of the right to be heard and equality of arms were violated. The employee was only confronted with the footage at the hearing. He was therefore unprepared and because had not had the opportunity to identify exculpatory passages in the footage beforehand. The Court of Appeal should have disregarded the camera footage in its decision or alternatively should have given the employee the opportunity to review the footage with his lawyer and respond to it. For example, by adjourning the hearing or by allowing the employee to respond in writing after the hearing.The driver therefore prevailed. Not because it has been established that he is innocent, but because he did not receive a fair trial. The Supreme Court set aside the judgment and referred the case to the Arnhem-Leeuwarden Court of Appeal for a new hearing.ConclusionA fair trial is not a formality, but the cornerstone of our legal system. Evidence may appear compelling, but if the opposing party is not given the opportunity to mount a proper defence, a dismissal can still be overturned.Do you have questions about summary dismissal, evidence, or any other employment law matter? Please feel free to contact me. Together, we will ensure that your case is properly substantiated – whether you are on the employer’s or the employee’s side.
Statutory interest and increases in the event of bankruptcy are estate debts Posted on 4 March 20264 March 2026 by Iris Taling On 13 February 2026, the Supreme Court (ECLI:NL:HR:2026:239) ruled on the question of wage claims in bankruptcy. Are statutory interest and statutory increases on late wages estate debts?In this ruling, employees of a bankrupt company had not received their wages for the period after the bankruptcy on time. The UWV did pay benefits under the wage guarantee scheme, but later than the wages were originally due.Statutory interestIf wages are not paid on time, statutory interest is payable (Article 6:119(1) of the Dutch Civil Code). Wages from the date of bankruptcy are estate debts under Article 40(2) of the Dutch Bankruptcy Act. The Supreme Court ruled that if these wages are not paid on time, the statutory interest must also be regarded as an estate debt.It is important to note that a lack of funds – which is common in bankruptcy cases – does not constitute force majeure. Nor does the fact that an employee is entitled to benefits from the Employee Insurance Agency (UWV) change this. The existence of the wage guarantee scheme is separate from the employer’s obligation to pay wages on time.Statutory increaseThe statutory increase (Section 7:625 of the Dutch Civil Code) is intended as an incentive for employers to pay wages on time. If wages are not paid within the statutory period, the employee is entitled to an increase of up to 50% of the wages owed. An employee can also claim a statutory increase in the event of bankruptcy.According to the Supreme Court, inability to pay and entitlement to UWV benefits do not affect the right to an increase. The statutory increase is also an estate debt. The court may, however, moderate the statutory increase. Bankruptcy or inability to pay may be grounds for this.Order of priorityPursuant to Section 3:288 of the Dutch Civil Code, certain privileges apply to employees’ wage claims. The Supreme Court makes a distinction in this regard:· The statutory increase falls under the wage privilege of Section 3:288(e) of the Dutch Civil Code and is therefore a preferential estate debt.· The statutory interest does not fall under this privilege and is therefore an unsecured estate debt.Employees’ duty to provide informationFinally, the Supreme Court discusses the role of the receiver. Proper performance of his duties may require the receiver to inform employees of their possible claims to statutory interest and statutory increase. This is certainly the case if he knows or should understand that employees are not aware of this. This does not have to be complicated. A simple notification at or shortly after the termination of employment is sufficient.ConclusionWith this ruling, the Supreme Court confirms that bankruptcy does not constitute an exception to the rules on timely payment of wages. Statutory interest and statutory increases may also be due in the event of bankruptcy. Moreover, they qualify as estate debts.Do you have any questions about these claims in bankruptcy? Please feel free to contact us.