If you have been served with a Dutch claim or if you wish to bring proceedings before a Dutch court, we can represent your interests in the Dutch court under both German and Dutch law.
In the following, we provide a list of the various types of proceedings in the Netherlands, information about court standing, legal representation, costs and answers to other common questions. We will be happy to assist you.
The court system in the Netherlands is fairly streamlined and comprehensible. For claims up to and including EUR 25,000, as well as labour law and tenancy law matters, the local court (Kantonrechter) has competence. All other cases, including commercial cases, are handled by the civil division of one of the 11 district courts (Rechtbank) distributed across the country. Appeals are handled by one of the country’s four appeal courts (Gerechtshof).
If you file a claim with the Rechtbank, you are obliged to hire a Dutch lawyer. Although there is no obligation to be represented by a lawyer in proceedings before the Kantonrechter, representation by a lawyer is strongly recommended here as well. Missed opportunities in the first instance have a direct impact on any subsequent appeal.
In the Netherlands, legal representatives like attorneys work according to a fixed hourly rate that generally depends on the lawyer’s career experience. The legal advisers at Boels Zanders will be happy to give an advance estimate of the time that proceedings are likely to take.
Although the principle that the losing party must bear the costs of the proceedings also applies in the Netherlands, the winning party commonly has to bear some share of the costs in practice. This is because the court will often, but not always, calculate the costs of proceedings to be reimbursed based on fixed amounts that do not correspond to the actual costs of proceedings.
The amount of the court fees depends on the amount in dispute and whether the claiming party or the defendant is a legal entity. For the year 2021, the fixed court fees are EUR 952 for a private person and EUR 2,076 for a legal entity if the amount in dispute is less than EUR 100,000.
The summons fees charged by Dutch process servers are currently EUR 98.52 plus VAT (as of 2021).
As a rule, an appeal (hoger beroep) can be lodged against the judgment of a court of first instance within three months after it is rendered. The appellate court may again give the parties the opportunity to examine witnesses or to appoint an expert. There is an avenue for appeal of the ruling of an appellate court, but this is hardly ever used in practice.
Even before civil proceedings begin, a Dutch lawyer can file a request for preliminary examination of witnesses (voorlopig getuigenverhoor) or a preliminary expert report. The judge will then decide whether to grant the request. In practice, such requests are rarely rejected. The findings from a preliminary examination of witnesses or a preliminary expert report can later serve as evidence in the main proceedings.
The Dutch injunctive relief proceedings (kort geding) can be used for many different types of disputes. The great advantage of this form of proceedings is the short turnaround time. Usually, the first hearing takes place after only a few weeks. There is no option for a preliminary examination of witnesses in the kort geding. Judgments are usually rendered within two weeks of the hearing.
The requirement for initiating a kort geding is that the matter requires an immediate decision by the judge due to urgency, i.e., because the claiming party is at risk of suffering irreparable damages. The kort geding is not suitable for obtaining a declaratory judgment or a precedent. It is merely a matter of obtaining an interim injunction. Judgments in kort geding can be appealed.
If you have a claim against a client domiciled in the Netherlands, a Dutch lawyer can, after examining the specifics of the case, obtain a pre-judgment attachment (conservatoir beslag) for you from the court within just a few days. The consequences of pre-judgment attachment are very far-reaching. The debtor’s accounts can be frozen, preventing them from making further payments. Also, assets (moveable or immoveable property and receivables) can be seized. Pre-judgment attachment is therefore an extremely useful means of exerting pressure to settle outstanding accounts.
Judgments obtained in Germany are recognised in the Netherlands and can be enforced by a Dutch process server without any additional administrative requirements. To this end, the process server needs a number of documents:
The further course of the enforcement procedure is governed by Dutch law. Likewise, judgments obtained in the Netherlands can be enforced in Germany under the same conditions.
Outstanding debts against Dutch customers can be recovered in various ways.
First of all, there is the possibility of initiating a European order for payment procedure. In the European order for payment procedure, a number of forms and applications have to be completed and sent to the court in The Hague. The court then issues a European order for payment, giving the debtor 30 days to lodge an objection against this order for payment. If the debtor does not do so, the order for payment is declared enforceable and can be enforced with the help of a Dutch process server. In the event of an objection, the matter will be heard by the competent Dutch court.
As mentioned above, Dutch law also offers the option of conservatoir beslag, by which assets of your Dutch debtor can be frozen, enabling you to obtain payment very quickly.
In addition, there is the option of initiating debt collection proceedings in court. This is a normal court procedure in which the aim of the claim is to order the debtor to pay. Note that this is a regular court case. The Netherlands does not have a dunning procedure (Mahnverfahren) as Germany does. It may still be possible to obtain an advance payment for the arrears in kort geding proceedings.
As a last resort, under certain conditions, a petition for insolvency (faillissementsaanvraag) can also be filed against the debtor. This does require that the debtor is leaving multiple creditors unpaid. Provided the debtor can pay, they will usually do everything possible to avoid insolvency.
If you are a party to a construction contract governed by Dutch law, or if you intend to enter into such a contract with a Dutch party, you should know that it is common practice in the Netherlands to declare any of various general terms and conditions applicable (UAV 2012, UAV GC 2005, AVA 2013, etc.).
As a result of the applicability of these general terms and conditions, construction disputes between the client and the contractor in the execution phase will generally not be settled in civil court, but rather by arbitration. The Arbitration Board for the Building Industry is responsible for such disputes. The proceedings that can be brought before the Arbitration Board for the Building Industry differ in many respects from the proceedings that can be brought before the civil courts. For more information on proceedings before the Arbitration Board for the Building Industry, see the website raadvanarbitrage.nl. We are also happy to answer any questions you may have on this topic.
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