Civil procedures in the Netherlands
Civil proceedings in the Netherlands commenced by a writ of summons
Civil law in the Netherlands recognizes two significant types of procedures: the so-called 'dagvaardingsprocedure' (proceedings commenced by a writ of summons) and the 'verzoekschriftprocedure' (i.e. proceedings commenced by an application to the court).
In this article, we will focus on the proceedings commenced by a writ of summons. In this type of Dutch civil procedure, two parties stand opposite to each other: the plaintiff and the defendant. The defendant is summoned by the plaintiff to appear in court. This is accomplished through a summons delivered by the bailiff. In the summons, the plaintiff explains what he or she demands from the defendant and why.
Exchange of written pleadings in a civil procedure in the Netherlands
Such a Dutch civil procedure begins in writing. The plaintiff sends a summons to the defendant via a bailiff. The summons contains information about the plaintiff, what the plaintiff demands, from whom and why, and what evidence the plaintiff has to support his claims. The summons also states the deadline for the defendant to respond (the "appearance date") and the Dutch court where the defendant must do so. The defendant's place of residence generally determines which court will handle the case. Parties may also choose a particular judge in an agreement, including (for instance) general terms and conditions.
The plaintiff then sends the summons to the court by the above-mentioned appearance date. The defendant can submit his written defense on that same date (the "answer conclusion"). If the defendant does not do so on the appearance date, the court gives him six weeks to do so. In the answer conclusion, the defendant explains which points he disagrees with the plaintiff and why. The defendant may also institute a counterclaim (a "counterclaim in reconvention").
The roles of lawyers and judges in civil proceedings in the Netherlands
Civil litigation is a process that involves a dispute between two or more parties, typically over a matter related to a contract or a breach of a legal obligation. In most cases, you will need to be represented by a lawyer in civil proceedings. This is a requirement set by the court. Your lawyer will draft the court documents (referred to as "pleadings") based on the information and evidence that you provide, and then file these pleadings with the court.
Do you need a Lawyer for civil proceedings in the Netherlands?
In the Netherlands, not all civil proceedings require a lawyer. If your case falls under the jurisdiction of the small claims court, also known as "kantongerecht", you can proceed without legal representation. The small claims court deals with all cases involving rental law, labor law, and civil disputes with a monetary value of less than €25,000.
The oral hearing in civil proceedings in the Netherlands
After the initial written round, both parties are usually summoned to appear in person before the Dutch court. Both parties can then explain to the judge orally how they see the case. The judge will also ask questions and explore the possibility of a settlement. In this case, the parties are often sent "on their way" to confer with each other and their lawyers about a possible resolution. If a resolution is reached, the judge will usually be willing to help draft the resolution on the spot. The document is then signed by the parties, bringing the proceedings to an end and no judgment is issued by the court.
The continuation of the Dutch civil proceedings after the hearing
After the hearing, the judge can do a few things. In some cases, the next step (which can take a long time!) will be to issue a final verdict. However, if the judge finds that the situation is not yet clear enough to make a decision, he or she may decide that a second written round is necessary (reply and dupliek). Both the plaintiff and the defendant will then explain in writing through their lawyers why they are right and why a certain claim should be granted or rejected. Another possibility is that the court decides to issue an interlocutory judgment, which the court, for example, instructs one of the parties to prove something. The judge can also ask one or more experts to conduct further research before issuing a judgment.
The position of the judge in Dutch civil proceedings
The civil judge in the Netherlands has a passive, rather than an active, role. This means that he or she waits for the facts presented by the plaintiff and defendant and listens to their arguments. The judge cannot consider other facts in his or her judgment. For example, he or she may not impose more compensation than the plaintiff demands or order the defendant to perform a particular act. The judge's role is limited to hearing the evidence and making a decision based on the evidence presented in court.
Judgment by default - verstek
Verstek is a term that refers to a defendant who does not respond to the summons and does not submit a written defense. In this case, the judge grants verstek to the absent defendant. Subsequently, the judge issues a default judgment, which usually means that the judge takes over the claimant's claim in his judgment. The defendant must then pay the costs of the proceedings. Against a default judgment, the defendant can object at the court. The defendant must then summon the claimant. The proceedings then continue from the day of the original claimant's summons.
Final judgment in civil proceedings in the Netherlands
When a judge has sufficient information (whether or not after witness hearings and/or expert investigations), he makes a ruling. The civil judge writes in a judgment whether the claimant's claim (and possibly the defendant's counterclaim) can or cannot be granted in whole or in part. He also decides who must pay the costs of the proceedings, such as the legal fees, the costs of the bailiff, and to some extent the costs of the lawyer. The parties must comply with the judge's judgment. Those who do not do so can be forced to do so. The bailiff can then, for example, seize a bank account and sell the goods of the convicted party. The other party can then claim the proceeds. Sometimes the judge imposes a fine. This means that the convicted party must pay a (usually high) fine for each day that he does not comply with the judgment or for each subsequent violation he makes.
Appeal proceedings in civil court cases in the Netherlands
Anyone who disagrees with the judge's decision can usually appeal to the court of appeal. Other judges will then look at the case and the assessment of the court again. If the proceedings at the court were about an amount of less than € 1,750, there can be no appeal.
Most Dutch judgments are "executable at once." This means that the party who lost must do what is in the judgment, even if he appeals. Seizure of assets can also take place (already). If "executable at once" is not in the judgment and a party appeals, the judgment cannot be executed until the court of appeal has decided on the case. Against the ruling of the Dutch court of appeal, parties can then file for cassation with the Supreme Court. It is good to know that at the Supreme Court, there is no further discussion about the facts; these are considered established. It is usually not possible to prove certain factual statements (by witnesses) at that time.
Summary Proceedings in the Netherlands
A regular civil procedure in the Netherlands, also known as the "bodemprocedure," can take quite a long time. It is not uncommon for it to take a year or more to resolve. However, in certain cases, the claimant may not be able to wait that long. For example, a manufacturer may no longer be willing to supply goods, or someone may not want a particular article to be published in a newspaper. The interim judge of the court handles these urgent matters in a summary proceedings, also known as "kort geding."
Steps in a summary proceedings in the Netherlands
Requesting a hearing date - The claimant sends a draft of the summons to the judge, asking the judge to set a date for a hearing (the "oral hearing"). The hearing will typically be scheduled within four to six weeks. If there is an urgent need, such as a news broadcast that needs to be prevented, the judge will cooperate, and the hearing can take place on the same day if necessary.
Serving the summons - The claimant then sends the summons to the defendant through a bailiff, which includes the date of the hearing. The defendant can also voluntarily agree to appear, in which case the summons does not need to be served by the bailiff. The summons is then sent to the defendant by ordinary mail or email.
Representation by an attorney-at-law - The claimant in a summary proceedings must engage a Dutch attorney-at-law (i.e. a lawyer in the Netherlands who is a member of the Dutch Bar Association - an 'advocaat'). The defendant does not need to do so, unless they want to file a counterclaim. During the hearing, the parties' lawyers will present their arguments orally, so the defendant typically does not need to submit a written defense beforehand, but they will need to prepare well for the hearing. During the hearing, parties may still hand the judge a written document outlining what they will say (the "pleading notes"). Supporting documents to back up their arguments should be sent to the judge and the other party as early as possible before the hearing.
Decision in summary proceedings in the Netherlands
The interim judge makes a decision quickly, often within two weeks, but sometimes even on the same day. This is a provisional ruling. After this, the parties can still go to court for regular proceedings on the merits, but this rarely happens. Most parties accept the ruling in summary proceedings. If a party wants to be compensated for all their damages, they will need to start regular proceedings on the merits.
Appeal in summary proceedings in the Netherlands
Parties can appeal the ruling in a summary proceedings within four weeks to the appeals court. Against the ruling of the Dutch appeals court, parties can appeal to the Supreme Court.
