A works council was not consulted — insolvency near

# A works council was not consulted on a group decision while insolvency is already in sight

A works council whose advisory right was skipped on a significant group decision has two live routes once insolvency is already near: an appeal to the Ondernemingskamer (Enterprise Chamber), or interim relief proceedings before a Dutch court to suspend implementation now. A third path, raising the point later inside formal insolvency proceedings, exists but loses most of its force once a curator (insolvency trustee) takes control. The right choice turns on how many weeks of runway remain.

What happens if you do nothing

If neither the council nor an affected party acts, the decision stands and gets implemented. This is, at bottom, a matter of corporate law and governance, not of insolvency law, until the moment a filing is made: the advisory right exists to slow down and test important decisions before they happen, and once they have happened it is far harder to unwind them. If insolvency proceedings open before the council moves, the leverage the advisory right gave largely disappears, because the trustee's duty to the general body of creditors displaces a claim aimed at a single decision-maker. Where the decision involved a pledge or other security, the position can mirror what happens when a secured creditor enforces its position and leaves nothing for others: procedural rights that were real a month earlier become academic once the estate is fixed.

The routes open to you

Three paths exist. Two are live now; the third only becomes relevant once insolvency has formally opened.

Route	What it takes	Time	Cost driver	What it gives you
Appeal to the Enterprise Chamber	An application arguing the decision could not reasonably have been taken without first seeking the works council's advice	Weeks; faster where urgency is argued, but a full application procedure	Dutch-qualified counsel of record's preparation time and the court fee for the application	An order that can suspend, prohibit or require reversal of the decision
Interim relief proceedings (kort geding)	An urgent claim for an injunction halting implementation, argued before a Dutch court on the ordinary law of obligations and the council's statutory position	Days to a few weeks; hearing set on urgency	Dutch-qualified counsel of record's time and the court fee for the interim claim	A fast, temporary order; the underlying dispute over the advisory right is not finally settled
Raising it inside the insolvency	A submission to the curator, or preservation of the point for a later claim against directors	Only relevant once a formal filing has been made; can run for months	Mostly internal time, plus a court fee if a formal claim follows	At best a finding or a damages claim; it does not undo the decision

What decides between them

The first question is how many days or weeks separate you from a formal insolvency filing: the appeal route needs enough runway to be heard before that happens, or it decides nothing. The second is whether the goal is to reverse the decision itself or to build a record for a later claim, which points toward interim relief or toward the insolvency route respectively. Whether the decision was taken through an informal group practice that sits uneasily with the articles of association also matters: an informal decision path is often easier to challenge on procedure than a formally minuted one. Finally, ask whether the company still has operations against which an order would have practical effect, or whether the decision has already been executed beyond recall.

The deadline that runs

The formal appeal route to the Enterprise Chamber runs from a fixed, short period after the decision was communicated to the works council. Miss that window and the appeal route closes, leaving interim relief as the only route with speed left. That period, and any recent movement in how it is applied, should be checked against the current position under Dutch law before you rely on it; do not assume it is measured in months.

Evidence to secure now

Collect the decision as communicated to the works council, and the date on which it was communicated. Establish whether any request for advice was sent at all, and if it was, whether it preceded or followed implementation. Gather correspondence showing when management knew the group's financial position had deteriorated, since this bears on whether the decision itself was taken with insolvency already near. Where the group has cross-border operations, the exposure of individual directors can differ by entity, in the way set out for director and officer exposure in a German group entity; check whether that pattern repeats here.

Cost drivers

Cost is driven by the complexity of the group structure, in particular whether it spans more than one jurisdiction and needs coordination between Dutch-qualified counsel of record and advisers elsewhere. It is driven by whether the matter proceeds on urgency, which compresses preparation time into days rather than weeks. It is driven by the volume of documentation that must be reviewed to establish when the decision was taken and when advice, if any, was sought. None of these drivers is a fixed rate; they are factors that make one route heavier than another.

What we would do in the first week

Obtain the decision and any consultation record in full, with dates. Map the group structure, including which entity took the decision and which entity is closest to insolvency. Assess how many days remain before a filing is likely, since that number decides whether the appeal route is still open. Brief Dutch-qualified counsel of record on the choice between an appeal and interim relief, and file whichever route the runway supports.

What this does not cover

It does not cover the substantive test for whether a given decision was "important" enough to trigger the advisory right in the first place; that turns on the facts of the decision.
It does not cover the position once a formal insolvency filing has already been made; the playbook then is different and is not addressed here.
It does not cover personal liability of individual directors for the failure to consult, which is a separate line of exposure.
It does not cover works councils outside the Netherlands, or group decisions taken entirely outside a Dutch entity.

Questions

Does the works council's advisory right survive once formal insolvency proceedings open?

It weakens sharply. The curator's duties run to the general body of creditors, and a claim aimed at reversing a single decision competes with, and usually loses to, the administration of the estate as a whole.

Can an appeal to the Enterprise Chamber be combined with interim relief?

Yes, in principle. Interim relief is commonly used to hold the position, by suspending implementation, while the slower appeal procedure runs its course toward a final order.

Does a buyer of the affected business unit inherit this risk?

Potentially. If the underlying decision is later suspended or reversed, a transaction built on it can be affected; this is a reason to check the consultation record before, not after, completion.

Author

Eva Kuipers, governance and the Enterprise Chamber. Eva works on works council disputes, board decision-making under scrutiny, and the procedural side of group reorganisations that touch Dutch entities.

Where you need a structured view of the group before deciding which route to take, a structure report sets out the entities, the decision path and the points at which advice should have been sought. For the underlying advisory-right procedure, see the Enterprise Chamber advisory-right service. The next practical step is to note your route with us before the window narrows further.

Last legal review: 2026-10-07

A works council was not consulted on a group decision while insolvency is already in sight