Uitspraak
AMSTERDAM COURT OF APPEAL
Netherlands Commercial Court of Appeal
Case numbers Court of Appeal : 200.358.029/01 and 200.358.754/01
Case number District Court : NCC C/13/768479
Judgment given on 30 June 2026
in the case with number 200.358.029/01 of:
DELTROIT DIRECTIONAL OPPORTUNITIES MASTER FUND LIMITED,
George Town, Cayman Islands,
claimant in appeal,
claimant in the incidental motion,
(“Deltroit”),
represented by S.C. Pepels, J.R. Berkenbosch and G. te Winkel, lawyers,
against
KROLL TRUSTEE SERVICES LIMITED,
London, England,
defendant in appeal,
defendant in the incidental motion,
(“Kroll”),
represented by J.W. Volkers, W.N.M. Bouman and T.B. Klerks, lawyers,
and
1.SELECTA GROUP AG IN LIQUIDATION,
Cham, Switzerland,
(the “Parent”),
2.
SELECTA GROUP B.V.,
SELECTA GROUP B.V.,
Amsterdam, the Netherlands,
(the “Company”),
interested parties,
(the Parent and the Company together: “Selecta”),
represented by V.R. Vroom and B. Kemp, lawyers,
3.SEAGULL BIDCO LIMITED,
Folkstone, Kent, United Kingdom,
interested party,
(“Seagull”),
represented by E.R. Meerdink, F.J.L. Kaptein and R.G.A. Elkerbout-Kok, lawyers,
and in the case with number 200.358.754/01 of:
1.CQS GLOBAL FUNDS (IRELAND) P.L.C.in respect of its sub-funds CQS Credit
Multi Asset Fund, CQS Brunel Multi Asset Credit Fund and CQS Alternative Credit Fund,
Dublin, Ireland,
2.
CQS NEW CITY HIGH YIELD FUND LIMITED,
CQS NEW CITY HIGH YIELD FUND LIMITED,
St. Helier, Jersey,
3.
MERCER QIF FUND P.L.C.in respect of its sub-fund Mercer Multi-Asset Credit Fund,
MERCER QIF FUND P.L.C.in respect of its sub-fund Mercer Multi-Asset Credit Fund,
Dublin, Ireland,
4.
ALGEBRIS UCITS FUND P.L.C.,
ALGEBRIS UCITS FUND P.L.C.,
Dublin, Ireland,
5.
FINECO ASSET MANAGEMENT DAC,
FINECO ASSET MANAGEMENT DAC,
Dublin, Ireland,
claimants in appeal,
claimants in the incidental motion,
(“CQS”),
represented by C.B. Schutte, R. van den Berg and T.J.P.H. de Bekker, lawyers,
against
KROLL TRUSTEE SERVICES LIMITED,
London, England,
defendant in appeal,
defendant in the incidental motion,
(“Kroll”),
represented by J.W. Volkers, W.N.M. Bouman and T.B. Klerks, lawyers,
and
1.SELECTA GROUP AG IN LIQUIDATION,
Cham, Switzerland,
(the “Parent”),
2.
SELECTA GROUP B.V.,
SELECTA GROUP B.V.,
Amsterdam, the Netherlands,
(the “Company”),
interested parties,
(the Parent and the Company together: “Selecta”),
represented by V.R. Vroom and B. Kemp, lawyers,
3.SEAGULL BIDCO LIMITED,
Folkstone, Kent, United Kingdom,
interested party,
(“Seagull”),
represented by E.R. Meerdink, F.J.L. Kaptein and R.G.A. Elkerbout-Kok, lawyers.
Deltroit and CQS together: the “Appellants”.
Kroll, Selecta and Seagull together: the “Respondents”.
1.Summary of the case
By judgment of 13 May 2025, the NCC District Court granted Kroll leave to transfer all the shares in the Company by way of a private enforcement sale pursuant to Article 3:251(1) Dutch Civil Code (DCC). The Appellants, who were not involved in the proceedings before the NCC District Court, filed an application for appeal with the NCC Court of Appeal requesting the Court to annul the judgment. Before their requests can be considered on the merits, the NCC Court of Appeal will in this interim judgment first decide (i) if Deltroit and CQS can be qualified as ‘interested parties’, and (ii) if there is ground to lift the applicable prohibition against appealing the judgment.
2.The procedural history
2.1.
The case file of the NCC Court of Appeal (“Court”) includes the following documents:
the appeal against application ex Art. 3:251(1) DCC and the incidental motion to provide copies and access pursuant to Art. 195 and Pro 195a Dutch Code of Civil Procedure (DCCP), including Exhibits nos. 1 to 40, of Deltroit, in the case with number 200.358.029/01;
the appeal against application ex Art. 3:251(1) DCC and the incidental motion to provide copies and access pursuant to Art. 195 and Pro 195a DCCP, including Exhibits nos. 1 to 41, of CQS et al, in the case with number 200.358.754/01;
the statement of defence on admissibility of Kroll in both cases;
the statement of defence on the admissibility of the appeals and the prohibition against appeal in pledge enforcement proceedings on the basis of Article 3:251(1) DCC, of Selecta, including Exhibits nos. 1 to 13, in both cases;
the statement of defence on the admissibility of the appeals and the prohibition against appeal in Article 3:251(1) DCC proceedings, of Seagull, including Exhibits nos. 1 and 2, in both cases;
the statement of submission of supplemental exhibits of Seagull, including Exhibits nos. 3 and 4, in both cases;
the brief submitting additional exhibits of Selecta, including Exhibits nos. 14 to 19, in both cases;
the brief submitting exhibits of Deltroit, including Exhibits nos. 41 to 53in the case with number 200.358.029/01;
the brief submitting exhibits of CQS, including Exhibits nos. 42 to 54, in the case with number 200.358.029/01;
the letters of Kroll, Selecta and Seagull dated 9 April 2026, in both cases, requesting the Court to refuse Exhibit 46 of Deltroit and Exhibit 47 of CQS, which request was denied during the hearing;
the letter of Deltroit of 10 April 2026, in the case with number 200.358.029/01.
2.2.
The cases were heard together on 16 April 2026. Deltroit was represented by S.C. Pepels and G. te Winkel mentioned above, and by Q. Rook and E.L.R. Mendes Aguiar, lawyers. CQS was represented by C.B. Schutte and T.J.P.H. de Bekker mentioned above. Kroll was represented by its lawyers mentioned above. Selecta was represented by its lawyers mentioned above and by K. de Bruijn, lawyer. Seagull was represented by E.R. Meerdink and F.J.L. Kaptein mentioned above and by P. van der Veen, lawyer. The lawyers argued their case using pleading notes that are part of the case file.
2.3.
Judgment regarding the admissibility of the appeals was subsequently set for today.
3.The facts
The facts, in so far as relevant for this interim judgment, are as follows.
3.1.
The Company heads the “Selecta Group”, a group of companies that operates a Europe-wide food technology business, amongst other things in the field of coffee roasting and coffee vending machines throughout Europe. The Company is a holding company for the operating companies of the Selecta Group. The shares in the Company were owned by the Parent until 11 June 2025, when the shares were sold to Seagull as part of a restructuring.
3.2.
Prior to the aforementioned restructuring, the Selecta Group was financed by multiple layers of secured debt, with various levels of seniority, totalling approximately EUR 1,445.5 million including accrued but unpaid interest. Until 2025, the Selecta Group’s capital structure included:
- a EUR 150 million super senior revolving credit facility dated 15 January 2018, maturing in January 2026 (the “RCF”);
- first-lien senior secured notes, publicly traded and held by individual noteholders through clearing agencies, representing an aggregate principal amount of EUR 810.3 million, governed by the 1L Indenture, maturing in April 2026 (the “1L Notes”);
- second-lien senior secured notes, publicly traded and held by individual noteholders through clearing agencies, representing an aggregate principal amount of EUR 370.1 million, governed by the 2L Indenture, maturing in July 2026 (the “2L Notes”).
3.3.
An intercreditor agreement under English law dated 31 January 2018 (the “ICA”) governed, amongst other things, the rankings of the creditors under the financing arrangement and the enforcement of the transaction security.
3.4.
Under the ICA, Kroll was appointed as agent and as security agent. Kroll held the notes and the security rights on behalf of certain of the Selecta Group’s creditors who were granted certain security instruments, including a first ranking share pledge over the entire issued share capital of the Company. Pursuant to the ICA and the deeds of pledge, Kroll had the authority to enforce the security, in accordance with their terms and upon instructions of the requisite majority of the applicable creditors, in case of an ‘enforcement event’, as defined in the ICA. Broadly stated, such event includes outstanding amounts under a financing instrument becoming immediately due and payable.
3.5.
In January 2025, the Company failed to meet an interest payment obligation to the 1L Noteholders. However, the contractual grace period was extended by the requisite majority of holders under the 1L Notes. To address the Selecta Group’s liquidity shortfall, a EUR 50 million super senior short-term interim facility dated 10 January 2025 maturing on 22 May 2025 (the “IFA”) was put in place, provided by a group of the Selecta Group’s creditors (the “Majority Noteholders”). To address the Selecta Group’s financial issues, the Company, Kroll and the Majority Noteholders reached an agreement for the restructuring of Selecta Group’s debt.
3.6.
On 30 April 2025, Kroll received notice of an event of default under the 1L Indenture from the Company. At the instruction of the Majority Noteholders, representing more than 50% of the aggregate principal amount of the 1L Notes, Kroll issued a notice to the Company resulting in the outstanding amounts in respect of the 1L Notes becoming immediately due and payable. On that same day, the Majority Noteholders instructed Kroll to enforce the pledge over the shares in the Company.
3.7.
On 30 April 2025, Kroll filed an application with the NCC District Court in Summary Proceedings (“District Court”) requesting approval to enforce the pledge by means of sale of the shares in the Company to Seagull, as laid down in a share purchase agreement. This proposed private sale involved, in essence, Seagull paying a cash consideration of EUR 1 for all shares in the Company, and Seagull releasing the Selecta Group from a portion of its outstanding debt.
3.8.
Later on 30 April 2025, Kroll issued a notification via the clearing agencies to the noteholders. This notice included, insofar as relevant, the following text:
“NOTICE IS HEREBY GIVEN, in accordance with Section 7.05 (Notice of Defaults) of the Indenture, that the Trustee has received a notice from the Issuer dated 30 April 2025 (the “Issuer Notice”) in which the Issuer informed the Trustee that an Event of Default has occurred and is continuing under Section 6.01(a)(1) of the Indenture. The Security Agent has subsequently filed on 30 April 2025 a petition with the court in preliminary relief proceedings (voorzieningenrechter) of the Netherlands Commercial Court requesting its approval to enforce Transaction Security (as defined in the Intercreditor Agreement) over the shares of the Issuer without a hearing”.
3.9.
Also on 30 April 2025, the Selecta Group announced in a press release that it had secured a “
transformative recapitalisation agreement”, explaining that “
ownership of Selecta Group will transfer to a Consortium of the Group’s existing long-term institutional investors” and that this transaction was to be “
implemented using a controlled enforcement process”.
transformative recapitalisation agreement”, explaining that “
ownership of Selecta Group will transfer to a Consortium of the Group’s existing long-term institutional investors” and that this transaction was to be “
implemented using a controlled enforcement process”.
3.10.
The proposed private sale was approved by the District Court in a judgment dated 13 May 2025 (the judgment challenged in appeal). The pledged shares in the Company were transferred to Seagull on 11 June 2025. Seagull was established by certain members of the Majority Noteholders for the purpose of this transfer. This transfer was part of a more comprehensive restructuring of the Company.
4.The case in first instance
4.1.
By application of 30 April 2025, Kroll, in its capacity as security agent and as pledgee, requested the District Court, by means of an immediately enforceable decision, to grant Kroll leave pursuant to Article 3:251(1) DCC to transfer the Shares (as defined in the application) to Seagull. In these proceedings, Selecta and Seagull were involved as interested parties.
4.2.
The District Court granted the requested leave by judgment of 13 May 2025. The District Court considered that, under the circumstances, the proposed sale of the shares in the Company to Seagull is the best possible outcome and will deliver maximum value for the shares.
5.The cases in appeal
5.1.
The applications in appeal of Deltroit and CQS are virtually identical. Both parties request the Court to annul the judgment of the District Court and to re-adjudicate Kroll’s application, denying the request to enforce the share pledge over the shares in the Company, and to order that Kroll pay the costs of the proceedings in appeal.
5.2.
Deltroit and CQS further request the Court, by incidental motion, to order the Respondents to provide them with a copy of the information listed in their application for appeal. As follows from the Court notice dated 17 September 2025, this incidental motion will not be decided on in this interim judgment.
5.3.
The Respondents each request – in summary – that the Court declare Deltroit and CQS inadmissible or dismiss their appeals, and order Deltroit and CQS to pay the costs of the proceedings.
6.The issues: “interested party” and prohibition against appeal
6.1.
In this first phase of the proceedings, the Court will rule on the admissibility of the appeals, more specifically on the qualification of ‘interested party’ and the prohibition against appeal, based on statutory provisions of the DCC and related Supreme Court case law. These matters are governed by Dutch civil procedural law.
6.2.
The Respondents each argue that the Appellants should be declared inadmissible or, alternatively, their appeal should be dismissed. They come to this conclusion because (i) the Appellants are not ‘interested parties’ and therefore not competent to lodge an appeal pursuant to Article 358(2) DCCP, and (ii) there are no grounds for lifting the prohibition against appeal judgments in proceedings based on Article 3:251 DCC.
Interested party
6.3.
Article 358(2) DCCP stipulates that an appeal against a judgment is open to the parties to the proceedings and to interested parties who appeared in the proceedings, as well as to other interested parties (
belanghebbenden). As Deltroit and CQS were not parties to the proceedings before the District Court, it must be assessed whether they qualify as interested parties within the meaning of Article 282(1) DCCP.
belanghebbenden). As Deltroit and CQS were not parties to the proceedings before the District Court, it must be assessed whether they qualify as interested parties within the meaning of Article 282(1) DCCP.
6.4.
It must first be noted that Article 282(1) DCCP does not specify who qualifies as an interested party in application proceedings. Whether or not the Appellants are interested parties must be derived from the nature of the proceedings and the related statutory provisions (Supreme Court 25 October 1991, ECLI:NL:HR:1991:ZC0387). In determining whether a person is an interested party, the extent to which that party may be affected in its own interest by the outcome of the proceedings must be considered, or the extent to which they are otherwise so closely involved, or have been involved, with the subject matter being dealt with that there is an interest in appearing in the proceedings (Supreme Court 6 June 2003, ECLI:NL:HR:2003:AF9440).
6.5.
The Court will therefore assess in light of the objective and the scope of the relevant proceedings, i.e. the proceedings pursuant to Article 3:251(1) DCC, whether the Appellants qualify as interested parties. These proceedings concern the execution of pledged assets by means other than a public auction, as regulated in Article 3:250 DCC. The objective of a public auction (Article 3:250 DCC) is to yield the highest possible proceeds and to minimise the risk that the enforcing pledgee might collude with the purchaser of the secured assets to the detriment of the pledgor and the other creditors. There may exist valid reasons, however, to sell the pledged shares by another procedure than a public auction, such as a private sale. Such other procedure is provided for in Article 3:251(1) DCC, for which leave from the court in summary proceedings is required. The underlying purpose of both Article 3:250 and 3:251(1) DCC is that the interests of the pledgor and the other creditors are safeguarded as much as possible. If leave for a private sale is requested pursuant to Article 3:251(1) DCC, it is for the court in summary proceedings to assess if their interests are sufficiently safeguarded in that private sale (Supreme Court 22 June 2018, ECLI:NL:HR:2018:972).
6.6.
Considering the aforementioned rationale of Article 3:251(1) DCC, the Court sees no ground for limiting the concept of ‘interested parties’ to the formal parties to the share pledge and formal holders of a security right, attachment or other limited right, as argued by the Respondents.
6.7.
The Respondents point out that Deltroit and CQS as individual beneficial noteholders do not hold the notes themselves, as these are legally held by the registered holder. The Court finds that this does not necessarily entail that they are not to be considered interested parties. The Court considers that the position of Deltroit and CQS in relation to the enforcement sale proceedings, under the circumstances outlined by the Appellants, is comparable to the position of creditors whose interests have to be safeguarded (as mentioned in Supreme Court 22 June 2018, ECLI:NL:HR:2018:972) and that they have a right to be heard as interested parties. Moreover, the Appellants have extensively and rightly argued that their legal and economic interests are directly affected by the outcome of the proceedings before the District Court.
6.8.
In short, the Appellants state the following. The Appellants were both 1L Noteholders, in an aggregate amount of approximately EUR 31 million. They argue that whilst prior to restructuring all holders of 1L Notes had the same rights and interests, the Majority Noteholders after the restructuring held the highest ranking, most secured and first repaid notes, while the Appellants only held 3O Notes. This was effectuated by first exchanging all 1L Notes for new lower value third priority notes (“3O Notes”) issued by Seagull. After this exchange, the Majority Noteholders were able to exchange their own 3O Notes for more valuable first priority notes (“1O Notes”). The other noteholders holding the minority of the shares, including Deltroit and CQS, were later also offered to exchange their 3O Notes for 1O Notes. This offer, however, included unacceptable non-market conditions that could only further benefit the Majority Noteholders. The result of this restructuring, that was engineered and effectuated behind the backs of the minority noteholders, is that the recovery position of the minority noteholders vis-à-vis the Company has decreased substantively. It was only in mid-June 2025 that the minority noteholders including the Appellants were confronted with a
fait accompli. According to the Appellants, the Respondents did not properly inform the District Court of this unreasonable and discriminatory result of the proposed sale, as the District Court would not have allowed such result without hearing the prejudiced parties, i.e. the minority noteholders including Deltroit and CQS.
fait accompli. According to the Appellants, the Respondents did not properly inform the District Court of this unreasonable and discriminatory result of the proposed sale, as the District Court would not have allowed such result without hearing the prejudiced parties, i.e. the minority noteholders including Deltroit and CQS.
6.9.
The Respondents contest the various allegations made by the Appellants. However, they do not dispute the outlined general restructuring method as such, pursuant to which the Appellants as holders of 1L Notes, amongst others, were to receive notes issued by a third party on substantially different terms and that hence the economic position of the Appellants was affected by the proposed restructuring in respect of which the District Court’s permission was sought. Nor do the Respondents dispute that the leave granted by the District Court played an indispensable role in the restructuring process. Given these circumstances, the Appellants clearly may be affected in their own interest by the outcome of the proceedings, even though: (i) they are individual beneficial noteholders and the notes are legally held by the registered holder, and (ii) the share pledges were granted in favour of Kroll as Security Agent under the ICA. Therefore, the Appellants are to be considered interested parties, who may express their view on the arguments of the Respondents in the request pursuant to Article 3:251(1) DCC. Their specific interests as beneficial noteholders are sufficient to warrant their participation in the proceedings to protect that interest, given the impact of the resulting judgment.
6.10.
The Court acknowledges that Article 3:251(1) DCC aims to achieve definitive legal certainty about the sale of the pledged assets within a short term, as the Respondents argue. This – legitimate – objective however does not relieve the court in summary proceedings of its responsibility to identify who the interested parties are and to summon these parties to appear in the proceedings pursuant to Article 279(1) DCCP.
6.11.
The Respondents further argue that the terms of the relevant contractual documentation lead to the conclusion that the Appellants cannot be qualified as interested parties. They refer in this context to the ICA, which restricts individual creditors to pursue enforcement action, and the 1L Indenture, which contains a ‘no action’ clause.
This argument has no merit in this phase of the proceedings. Leaving aside that the Appellants dispute that these clauses prevent them from participating in the present proceedings as interested parties, the contractual restrictions in the ICA and the 1L Indenture cannot set aside the obligation of the court in summary proceedings to consider the interests of the Appellants (as interested parties) pursuant to Article 3:251 DCC. Consequently, the Court will uphold the protection of the interests of Appellants resulting from this statutory obligation.
Prohibition against appeal
6.12.
In principle, a judgment granting leave pursuant to Article 3:251(1) DCC is not open to appeal (Supreme Court 17 June 1994, ECLI:NL:HR:1994:ZC1401,
Rabobank/Sporting Connection, par. 3.2). However, according to settled case law, the prohibition against appeal may be lifted under certain conditions (
doorbrekingsgronden). The prohibition can be lifted if the relevant lower court: (i) acted beyond the scope of the relevant statutory provision, i.e. Article 3:251(1) DCC, (ii) wrongly failed to apply that provision, or (iii) disregarded such fundamental procedural forms that the proceedings cannot be considered fair and impartial (Supreme Court 29 March 1985, ECLI:NL:HR:1985:AG4989).
Rabobank/Sporting Connection, par. 3.2). However, according to settled case law, the prohibition against appeal may be lifted under certain conditions (
doorbrekingsgronden). The prohibition can be lifted if the relevant lower court: (i) acted beyond the scope of the relevant statutory provision, i.e. Article 3:251(1) DCC, (ii) wrongly failed to apply that provision, or (iii) disregarded such fundamental procedural forms that the proceedings cannot be considered fair and impartial (Supreme Court 29 March 1985, ECLI:NL:HR:1985:AG4989).
6.13.
The Appellants argue that two of the grounds for lifting the prohibition against appeal are applicable in the present proceedings. Firstly, they argue that their fundamental right to be heard has been breached, and secondly, that the District Court acted outside the scope of Article 3:251(1) DCC. Given that the Appellants have invoked these grounds, they are admissible in their appeal (Supreme Court 17 June 1994, ECLI:NL:HR:1994:ZC1401,
Rabobank/Sporting Connection, par. 3.4).
Rabobank/Sporting Connection, par. 3.4).
6.14.
The Court finds that the first ground brought forward by the Appellants is well-founded. It is undisputed that the Appellants were not summoned by the District Court as interested parties in accordance with the requirements of the DCCP. By not summoning the Appellants and ruling on Kroll’s application without giving them the opportunity to express their views, the District Court failed to observe the Appellants’ rights as interested parties.
6.15.
Even if the Appellants had knowledge of the District Court’s share pledge proceedings through the notice by Kroll of 30 April 2025 sent via the clearing agencies, as the Respondents argue and as Deltroit disputes, this knowledge would not change the findings of the Court since this notice does not qualify as a notice to appear within the meaning of Article 272 DCCP. This equally applies to the press release of the same date, which does not mention the District Court, and to any correspondence between the Appellants and Selecta’s advisors regarding the Company’s financial situation. The Appellants were allowed to await formal notice from the District Court regarding the application and the course of the proceedings. Therefore, not taking immediate action in response to the notice of 30 April 2025 does not impair their entitlement to invoke this ground to lift the prohibition against appeal.
Conclusion and next steps
6.16.
The considerations above lead to the conclusions that Deltroit and CQS are to be regarded as interested parties and that the prohibition against appeal is to be lifted.
6.17.
The Court notes that Article 290(1) DCCP stipulates that the Appellants, as interested parties, are entitled to inspect and receive copies of the documents in the case file. As this right follows from the law, a request to that end, or the grant of such request, appears to be unnecessary. The Court assumes that the Respondents will provide a copy of the case file to the Appellants.
6.18.
Following this interim judgment, the cases may be dealt with on the merits in the next phase. The next step would be for the Respondents to submit a statement of defence on the merits. However, it may be useful to first hold a case management conference in order to discuss the further course of the proceedings. The Court suggests that the parties consult each other and – if possible – provide the Court with a joint proposal. Each party may inform the Court in this respect by submitting a brief, simultaneously, of no more than 5 pages.
6.19.
At the hearing of 16 April 2026, the possible wish to lodge an interim Supreme Court appeal was discussed. Based on what the parties have brought forward, the Court will allow an interim Supreme Court appeal against this judgment.
6.20.
All further decisions, including those regarding the cost orders, will be stayed.
7.The decision
The NCC Court of Appeal:
7.1.
declares Deltroit and CQS admissible in their appeals against the judgment of the District Court of 13 May 2025;
7.2.
rules that an interim Supreme Court appeal may be lodged against this judgment;
7.3.
directs the parties to submit the briefs as set out in paragraph 6.19, via eNCC, no later than 28 July 2026.
Done by C.A. Joustra, P.M. Arnoldus-Smit and A.C. Metzelaar, appeal judges, assisted by the Clerk of the Court.
Issued in public on 30 June 2026.