Authorisation to litigate and auditor's liability in bankruptcy
Trustees granted permission to sue auditor after failed attempt to settle
The trustees in bankruptcy of a bankrupt public limited company (naamloze vennootschap) asked the supervisory judge for authorisation to litigate under Section 68(3) of the Dutch Bankruptcy Act (Fw) in proceedings against Ernst & Young and the responsible auditor. The dispute concerned the quality of the audit of the 2012 annual accounts. In 2017 the Accountants Chamber (Accountantskamer, the disciplinary tribunal for auditors) had held that the auditor had made audit errors and had acted in breach of the applicable professional rules. On appeal in 2019, the Trade and Industry Appeals Tribunal (CBb) imposed even heavier sanctions.
In early November 2022 the trustees had shared a draft writ of summons with the management board, the supervisory board and EY. EY did not respond on the substance, but in June 2023 indicated in a meeting that it was willing to settle the matter, on condition that the management board and the supervisory board would contribute. The trustees therefore first entered into negotiations with those parties. When that process was well advanced in early 2025, they again approached EY. EY no longer responded and, in the summer of 2025, indicated that it did not wish to reach a settlement. The trustees then filed the request for authorisation.
The assets of the estate amounted to over €5.5 million, against preferential claims of approximately €622 million. The total claim against EY amounted to €845,024.98, to be increased by statutory interest. The estimated costs of the proceedings: €20,000.
Supervisory judge: prospects of success sufficient, and proceedings also necessary for the broader winding-up
The supervisory judge assessed the request against three criteria: prospects of success, costs and benefits, and necessity. He stressed that a decision on the substance of the dispute belongs before the civil court. The supervisory judge assesses only the trustees' prospects before that court.
On the point of limitation and expiry periods, the supervisory judge considered the prospects of success sufficient. The trustees had made it plausible that EY had earlier given assurances about its willingness to enter into negotiations, and had subsequently withdrawn those assurances — at a time when the negotiations with the management board and the supervisory board were at an advanced stage. On the basis of those circumstances, the trustees were entitled to assume that they would first consult with the management board and the supervisory board before taking further steps against EY. As a result, EY's evidentiary position had not been prejudiced in any way. The supervisory judge concluded that there is a sufficient prospect that the civil court will consider EY's reliance on limitation or expiry periods to be contrary to reasonableness and fairness. In legal terms, this is an application of the derogating effect of reasonableness and fairness (Section 6:248(2) DCC).
On the substance too, the supervisory judge considered the prospects of success sufficient: the disciplinary tribunal had upheld almost all parts of the complaint and confirmed that EY had wrongly issued an unqualified opinion on the annual accounts.
As to costs and benefits, the supervisory judge held that the proceeds would make no substantial difference given the size of the preferential claims, but that the creditors would also not be adversely affected. The creditors' interest lies primarily in clarity and in the winding-up.
The most striking element concerns the necessity test. All alternative options had been exhausted and EY had confirmed at the hearing that it was not prepared to engage in discussions. But the supervisory judge went further: the proceedings extend beyond the dispute with EY alone, because the management board and the supervisory board are also awaiting an outcome for any further negotiations. In order to be able to conclude those negotiations, clarity about EY's position is required. The supervisory judge added: "Even if the prospects of success were limited, it is therefore — in the interest of the general body of creditors — necessary to resolve the dispute with EY."
What does this mean for trustees seeking to hold an auditor liable?
The ruling confirms that, when deciding on authorisation to litigate, the supervisory judge weighs not only the direct prospects of success but also the importance of clarity for the broader winding-up of the bankruptcy. The strategic value of proceedings for the settlement position vis-à-vis other parties can support the necessity test — even where the direct proceeds are limited in relation to the estate deficit.
That is no foregone conclusion. In an earlier ruling by the same supervisory judge (16 May 2025) authorisation to litigate was in fact refused. There, a materially different admissibility risk was at play: the trustees were litigating on behalf of a limited group of individual creditors on the basis of a mandate, not on behalf of the general body of creditors. The litigation risk was too high partly for that reason, and the proceeds affected only the estate creditors.
Three points are relevant for insolvency practice. First: document willingness to settle and the course of the negotiations carefully — it plays a role in the assessment of limitation and expiry-period defences. Second: disciplinary rulings do not constitute proof of civil liability, but they support the supervisory judge's assessment of the prospects of success. Third: the value of proceedings for the settlement position vis-à-vis other parties involved can be an independent ground for granting authorisation to litigate.
Frequently asked questions
Can an auditor appeal against an authorisation to litigate?
No. In a related case, the Midden-Nederland District Court confirmed that only the trustee, as applicant for and addressee of the ruling, qualifies as a party under Section 67 Fw. The opposing party retains all its defences in the proceedings on the merits, but cannot challenge the authorisation itself.
How does the supervisory judge assess a request for authorisation to litigate?
The supervisory judge applies a three-part assessment framework: the trustee's prospects of success, the expected costs and benefits of the proceedings, and whether litigating is reasonably necessary. This framework is not laid down in statute but has developed in practice and in the literature into a de facto standard.
Does a disciplinary sanction count towards an auditor's civil liability?
A disciplinary ruling informs the civil assessment, but does not determine it. Since the Vie d'Or judgment (Supreme Court, 13 October 2006) the standard is what may be expected of a reasonably acting and reasonably competent auditor. The supervisory judge may take the disciplinary ruling into account when assessing the prospects of success, as was the case in this ruling.
ECLI:NL:RBMNE:2026:726, Midden-Nederland District Court (supervisory judge), 29 January 2026.
Cited case law
Supreme Court: ECLI:NL:HR:2006:AW2080
District Courts: ECLI:NL:RBMNE:2026:726 · ECLI:NL:RBMNE:2025:2322 · ECLI:NL:RBMNE:2025:6379