Group of persons covered by section 105(1) of the Danish Bankruptcy Act

Case no. BS-14920/2024-HJR

Byggeselskabet DK ApS in bankruptcy
vs.
A

On 14 March 2023, the Maritime and Commercial Court’s Bankruptcy Court issued a bankruptcy order against Byggeselskabet DK ApS and appointed lawyer Anders Hauge Gløde as trustee.

At a court hearing on 19 September 2023 in the Maritime and Commercial Court’s Bankruptcy Court, A gave a statement and explained, among other things, that the company had used two specified email accounts, that A had received emails from some of the company’s customers on his private email account, and that the private email account had been linked to the Dinero software platform, which was used for the company’s invoicing.  

During the court hearing, the trustee requested the Bankruptcy Court to order A to hand over his mobile phone with PIN code to the trustee for the purpose of mirroring the phone contents, as the trustee required access to the company’s material stored on the three mentioned email accounts.  

The Bankruptcy Court did not grant the trustee’s request, stating that A had never been registered as a director of the bankrupt company and was therefore not covered by the group of persons referred to in section 112(1), second sentence, cf. section 112(2), cf. section 105(1), of the Bankruptcy Act. The High Court upheld the Bankruptcy Court’s decision. 

The main question for the Supreme Court to consider was whether section 112(1), second sentence, of the Bankruptcy Act – according to which the Bankruptcy Court may order that the trustee be provided with the estate’s assets, business papers and material in the debtor’s possession – as a result of the reference in subsection (2) to section 105(1) – applies to A, who, as mentioned, had not been registered as a director of the bankrupt company.

The Supreme Court found that, according to the wording of section 105(1) of the Bankruptcy Act and the legislative history behind the provision, it is not a condition for a person to be covered by the provision that the person in question is or has been registered as a member of the executive board (or the board of directors). It is sufficient that the person concerned has performed tasks that are normally incumbent on a director (or the board of directors). The Supreme Court further found that A had performed tasks in the bankrupt company that are normally carried out by a director (or the board of directors).  On this basis, the Supreme Court found that A was included in the group of persons specified in section 105(1) of the Bankruptcy Act, and that section 112(1), second sentence, cf. section 112(2), therefore applied to A.

Regarding access to the bankruptcy estate’s material, the Supreme Court noted that the trustee wanted access to the bankruptcy estate’s material in three email accounts, two of which belonged to the company and one was A’s private email account. The trustee was entitled, with the assistance of the Bankruptcy Court, to be given access to this material, and A was – as part of the group of persons specified in section 105(1) of the Bankruptcy Act – obliged to hand over the material, cf. section 112(1), second sentence, cf. section 112(2), read in conjunction with section 105(1) of the Bankruptcy Act. 

The Supreme Court found no basis for considering the issue of whether A’s obligation to assist the trustee in gaining access to the bankruptcy estate’s material in the three email accounts should be fulfilled by mirroring A’s mobile phone or by other means. 

The Supreme Court remitted the case for reconsideration by the Maritime and Commercial Court’s Bankruptcy Court.

The High Court and the Bankruptcy Court had reached a different conclusion.