The limits of a bankruptcy trustee's authority
Advocate General Snijders advises the Supreme Court to maintain the rule that a trustee in bankruptcy may litigate only for the general body of creditors, and not for a limited group of individual creditors. A contract of mandate from those creditors does not change this. The trustee's task under Section 68(1) of the Dutch Bankruptcy Act (Fw) reaches no further; injured creditors are, in principle, left to their own devices.
CARe's trustees seek €2,407,675 for 118 creditors
The supervisory judge and the District Court Midden-Nederland refused the trustees of CARe Schadeservice B.V. the authorisation to bring proceedings that they had requested. At stake was a damages claim of €2,407,675 against Rabobank and a director, to be brought on behalf of 118 ordinary (unsecured) creditors. Dutch insolvency law sets a sharp limit here on what a trustee may do.
CARe was declared bankrupt in 2017. In the twelve months before the bankruptcy, these 118 creditors acquired an irrecoverable claim, or saw an existing one grow. Rabobank is reproached for expanding its financing while it knew or should have known that CARe no longer had any realistic prospect of survival. The director is reproached for continuing the business with that same knowledge.
This loss was not suffered by the general body of creditors, but by a specific group. The trustees therefore could not bring a claim themselves. They concluded contracts of mandate (lastgeving) with the 118 creditors: the net proceeds would go directly to those creditors, while the estate advances the litigation costs in return for a success fee. For this route they sought authorisation under Section 68(3) Fw.
AG: acting for a limited group falls outside Section 68 Fw
Since Peeters q.q./Gatzen, a trustee may, where the general body of creditors has been prejudiced, bring a claim for damages against an involved third party; the proceeds fall into the estate and benefit all creditors through the distribution list. In De Bont/Bannenberg q.q. and Butterman q.q./Rabobank the Supreme Court drew the line: acting for a limited group of creditors falls outside the task conferred by Section 68(1) Fw. That was so even where the trustee held powers of attorney, and regardless of whether the proceeds would fall into the estate.
The trustees argued that a contract of mandate offers more scope than a power of attorney. AG Snijders does not follow this. The distinction between mandate and power of attorney does not detract from the principle that the trustee acts only for the general body of creditors. Two objections weigh heavily. The risk of conflicting interests between the estate and the individual creditors cannot be reliably delineated in advance. And in pursuing those interests the trustee would deploy knowledge obtained precisely in his capacity as trustee — for which those powers were not conferred on him.
In the literature the "liberal" view (including Van der Weijden) stands against the "strict" view (including Wessels and Vriesendorp). The former consider the construction permissible provided conflicts of interest are avoided and the estate does not bear the litigation risk; the latter regard it as incompatible with the trustee's statutory task. The AG chooses the strict line and sees no reason to depart from the two earlier judgments. The opinion advises the Supreme Court to dismiss the appeal in cassation.
What can injured creditors do themselves?
Unless the Supreme Court rules otherwise, creditors must assume that the trustee does not represent them, unless the loss affects the general body of creditors and therefore gives rise to a Peeters/Gatzen claim. Anyone who suffers loss through a bank or a director shortly before a bankruptcy is left to bring their own proceedings. Costs and risk can be limited by joining claims (subjectieve cumulatie), or through a collective action under Section 3:305a DCC. Keep a close eye on limitation.
This outcome is not yet final. An opinion of the Advocate General's office is weighty advice, but the Supreme Court decides for itself. Until the judgment is delivered, the lower case law remains authoritative, and it has so far refused the authorisation.
Frequently asked questions
What is a Peeters/Gatzen claim?
A claim by which the trustee, where the general body of creditors has been prejudiced, holds an involved third party liable in damages. The power derives from Section 68(1) Fw. The proceeds fall into the estate and benefit all creditors through the distribution list, even though the claim did not accrue to the bankrupt company itself.
Why does a mandate or power of attorney not help the trustee?
Because the trustee derives his powers from his statutory task, and that task covers only the general body of creditors. A private instruction from individual creditors adds no statutory basis to it. That is the settled line since De Bont/Bannenberg q.q. and Butterman q.q./Rabobank.
Has the Supreme Court already ruled on this?
Not yet. ECLI:NL:PHR:2026:720 is the opinion of Advocate General Snijders of 10 July 2026, which advises dismissal. The Supreme Court's judgment will follow later. Only then will it be settled whether the limit from the two earlier judgments is maintained.
Cited case law
Supreme Court
- Peeters q.q./Gatzen — Supreme Court 14 January 1983, ECLI:NL:HR:1983:AG4521
- De Bont/Bannenberg q.q. — Supreme Court 16 September 2005, ECLI:NL:HR:2005:AT7797
- Dekker q.q./Lutèce — Supreme Court 24 April 2009, ECLI:NL:HR:2009:BF3917
- Butterman q.q./Rabobank — Supreme Court 14 January 2011, ECLI:NL:HR:2011:BN7887
- Supreme Court 22 December 2017, ECLI:NL:HR:2017:3253 (supervisory judge's assessment standard)
Advocate General
- Opinion of AG Snijders — 10 July 2026, ECLI:NL:PHR:2026:720
District Courts
- District Court Midden-Nederland (supervisory judge) 16 May 2025, ECLI:NL:RBMNE:2025:2322
- District Court Midden-Nederland 12 November 2025, ECLI:NL:RBMNE:2025:5959