Case Study 12: NK V BNP Paribas Fortis NV | University College Cork

Summary of Facts of the Case

This case was brought by NK, the liquidator in the bankruptcies of PI Gerechtsdeurwaarderskantoor BV and PI against BNP Paribas Fortis NV in respect of the recovery of a sum unduly debited from an account with Fortis Bank in Belgium. Funds were transferred to Fortis Bank by PI over a period of time in 2008 and were then withdrawn in cash, an act classified as embezzlement and resulting in the sentencing and imprisonment of PI [para 11].

During the insolvency proceedings conducted in the Netherlands, proceedings were brought against Fortis Bank seeking an order that Fortis repay the debited funds on the basis that it had incurred liability toward the general body of creditors by cooperating with PI in breach of its statutory obligations in the withdrawals made, thereby resulting in losses to the creditors of the bankrupt estates [para 13].

Under Dutch law the liquidator can bring a single action against a bank to repay money in tort in what is called a Peeters-Gatzen action. This action can be brought by an individual creditor, liquidator and/ or anyone affected against a third party who was involved in causing the loss suffered by the general body of creditors [para 17]. For this reason, the Dutch liquidator took the proceeding in the Netherlands but the defendant bank, NK Fortis, said it was a tort claim and therefore should be brought in Belgium. The net question is whether the action is closely connected to the insolvency proceedings thereby being covered by the EIR Recast or is an action in tort falling outside the Regulation [para 19]. Because it is normal for a liquidator to bring this claim, the Dutch view was that the Dutch court should have jurisdiction as it is an action closely connected to the main insolvency proceedings being conducted in the Netherlands.

The questions referred by the Dutch Supreme Court concerning cooperation in this matter specifically were as follows:

(1) Is a claim for damages against a third party on behalf of all the creditors brought by a liquidator covered by the insolvency exception under article 1(2)(b) of the Brussels Regulation (bringing it into the scope of the EIR Recast)?

(2) If it is covered by the EIR Recast, will the claim be governed by the law of the Member State in which insolvency proceedings had been opened (the Netherlands in this case)?