13.4 Commencement of the investigation

When the Enterprise Chamber orders an investigation, it must take three decisions. Firstly, it must decide which investigative order it will issue to the investigators. The ‘investigative order’ refers to any restrictions that the Enterprise Chamber imposes on the scale of the investigation (in terms of period or aspects of the policy pursued) and also to any specific instructions to the investigators. Secondly, the Enterprise Chamber must decide which investigator(s) to appoint. Thirdly, it must determine the investigation budget within which the investigators must conduct the investigation.

I discuss the investigative order in Chapter 2. My study of case law shows that, in most cases, the Enterprise Chamber does not clearly state what the investigators should and should not investigate. Notably, if the Enterprise Chamber issues an order for additional investigations, it does state in concrete terms what the investigators should further investigate. This suggests that it should be possible to formulate investigative orders in more specific terms. In Chapter 2, I also discuss the restrictions on the Enterprise Chamber’s freedom to formulate investigative orders and the extent to which investigative orders may be directed at stakeholders other than the legal entity. Another subject addressed in this chapter is the relationship between the investigators and other Enterprise Chamber officials (managing directors, supervisory directors or equity managers appointed by the Enterprise Chamber with immediate effect). Lastly, this chapter discusses whether the Enterprise Chamber can adjust or clarify investigative orders at a later stage and when it can order additional investigations.

The appointment of the investigators is discussed in Chapter 3. The Enterprise Chamber usually appoints one investigator to conduct the investigations, but occasionally appoints two or three investigators. This usually happens in major investigations requiring specific knowledge and experience. In Chapter 3, I discuss the requirements that in my view should be imposed on investigators to qualify for appointment. At present, there are no such rules. Rules do apply to experts in criminal cases. For court-ordered expert examinations in civil proceedings, there are no statutory appointment requirements, but there is a specific training course for experts. There is also a public register of private individuals, the Netherlands Register of Court Experts (LRGD), in which experts can be entered. This register works well. The Enterprise Chamber has a list of individuals who qualify as Enterprise Chamber officials (including investigators). This list is not public, although a ‘Protocol List of Enterprise Chamber Officials’ has existed since 1 October 2015. That protocol regulates how individuals can be included on and removed from the list. In Chapter 3, I argue that the list of potential individuals qualifying for appointment should be public and that a training course for investigators should be set up. Other subjects that I discuss are the legal position of investigators, the acceptance of appointments by investigators, and the replacement of investigators, as well as the appointment of an additional investigator by the Enterprise Chamber.

The costs of the investigation are dealt with in Chapter 4. My research shows that at the start of the investigation, the Enterprise Chamber often makes only a rough estimate of the costs required for the investigation and that investigators regularly, and sometimes repeatedly, have to request an increase in the investigation budget. For that reason, I make a proposal for a new working method to determine investigation budgets. The existing rules concerning investigation budgets are intended as a measure to control the costs of investigations. This has little success in practice. The Enterprise Chamber nearly always grants requests to increase investigation budgets and is equally uncritical in establishing the remuneration of investigators. In principle, the legal entity pays the costs of the investigation, subject to the possibility of recovering the costs from current or former directors and employees of the legal entity. This creates a problem if the legal entity is insolvent. In that case, the petitioner or a third party must pay the costs of the investigation (on a voluntary basis). As such, this is not a problem. What is a problem is when the investigation budget is insufficient. In that case, there is a risk that the investigation cannot be sufficiently broad and does not sufficiently address all aspects of the policy pursued by the legal entity. There is also a risk that, at least in the perception of the defending parties, too little opportunity is afforded for hearing both sides of the argument. In order to avoid this, the Enterprise Chamber should not order an investigation if there is no adequate investigation budget. If this does not become clear until after the investigation has begun, and the investigation budget cannot be increased, then I believe the Enterprise Chamber should end the investigation.