Claiming extrajudicial costs under the Dutch Civil Code
Extrajudicial costs (buitengerechtelijke incassokosten) are the expenses a creditor (schuldeiser) incurs outside of court proceedings to collect a debt. Section 6:96(2)(c) of the Dutch Civil Code (Burgerlijk Wetboek) provides the legal basis for claiming these costs. This article explains how extrajudicial costs work, how they are calculated, and what conditions apply to both commercial and consumer debtors.
Extrajudicial costs play a significant role in the broader framework of debt collection in the Netherlands. Understanding the rules is important for any party involved in a payment dispute.
Understanding extrajudicial costs under Dutch law
Extrajudicial costs refer to the expenses incurred outside the formal judicial process. The Dutch Civil Code, specifically Section 6:96(2)(c), provides a legal framework for the recovery of such costs, but its application requires careful attention to the specific circumstances of each case.
These costs may include legal consultation fees, expenses related to document preparation, and other administrative tasks. The Dutch Civil Code does not provide an exhaustive list of eligible costs. As a result, the determination of what qualifies as an extrajudicial cost is largely a matter of judicial discretion.
Dutch case law has set some parameters. Costs must be reasonable and directly related to the case. In addition, these costs can only be claimed if they result from a debtor’s (schuldenaar) wrongful act, and if the creditor would not have incurred them but for this act.
Section 6:96(2)(c) of the Dutch Civil Code explained
Section 6:96(2)(c) of the Dutch Civil Code covers costs incurred during the collection of a claim outside court proceedings. These costs can be claimed as long as they are deemed reasonable and necessary to secure the rights of the claimant.
The interpretation of ‘reasonable’ and ‘necessary’ depends on the specific facts. The court usually provides an assessment during civil proceedings, taking into account the nature of the case, the complexity of the matter, and the behaviour of both parties during the collection process.
The section also stipulates that the claimant should demonstrate that they have actually incurred these costs. This means that the costs must be substantiated and not merely estimated or anticipated. Dutch law places the burden of proof on the claimant, which requires careful documentation of all extrajudicial costs.
Calculation of extrajudicial costs in Dutch law
Under Dutch civil law, the calculation of extrajudicial costs (buitengerechtelijke incassokosten) follows specific guidelines and regulations. These calculations are not arbitrary but are governed by detailed rules to promote fairness and transparency. The following aspects are relevant:
Debt Value: The value of the debt directly influences the amount of the costs that can be claimed.
Incremental Rates: For debts exceeding a certain threshold, incremental rates apply to the portion of the debt above that threshold.
Additional Costs: These may include costs incurred in collection efforts, legal consultancy, and other related activities.
Necessity Test: They must be necessary and reasonable, as determined by the courts.
Proportional: Costs should be proportional to the value of the debt.
Statutory Interest: The Dutch Civil Code mandates the application of statutory interest (wettelijke rente) on the debt. You can calculate the statutory interest using our online tool.
Claiming extrajudicial costs in the Netherlands
The process of claiming extrajudicial costs under the Dutch Civil Code requires a solid understanding of specific procedural guidelines and legal provisions. These costs arise from activities outside of court proceedings, such as negotiations, correspondence, or debt collection efforts, and are claimable under Section 6:96(2)(c) as part of a broader claim for damages.
What triggers the minimum of 40 euros in extrajudicial costs?
Under Dutch law, a commercial agreement (overeenkomst) automatically incurs at least 40 euros in extrajudicial collection costs. No reminder (aanmaning) is needed. This obligation starts the day after the payment deadline passes, as provided in article 6:96 section 4 of the Dutch Civil Code.
What defines a commercial agreement?
A commercial agreement involves a transaction where parties commit to deliver goods or services. It applies to transactions between professionals or businesses, as stated in article 6:119a section 1 of the Dutch Civil Code.
How are consumers treated differently?
For non-professional individuals, extra costs apply only after the debtor is in default (verzuim). Unlike commercial debtors, consumer debtors can only be charged extrajudicial collection costs if they have received a fourteen-day letter (veertiendagenbrief) and fail to pay the initial amount within the granted term of at least fourteen days. The Dutch Supreme Court (Hoge Raad) has ruled that after the fourteen-day letter, no further collection efforts need to be made for costs to be reimbursed.
When is a debtor in default under Dutch law?
- Non-conformity with the obligation after the due date and demandability.
- Failure to perform within a reasonable time after formal notice (sommatie), as provided in article 6:82 section 1 in conjunction with article 6:81 of the Dutch Civil Code.
- Where the obligation is tied to a specific deadline that is not met, without the need for formal notice, under article 6:83 section 1 in conjunction with article 6:81 of the Dutch Civil Code.
In these scenarios, the debtor (schuldenaar) is liable for the non-performance and the resulting costs. Claims for extrajudicial costs are subject to the applicable limitation period under Dutch law.
The claimant must carefully demonstrate that the costs incurred were reasonable and necessary. This involves providing detailed evidence such as correspondence, lawyers' letters, and invoices to substantiate the claim. Any ambiguity or lack of clarity can result in the claim being dismissed. Precise documentation is therefore of great importance.
Dutch law also sets out a scale of fees for extrajudicial costs, which limits the amount claimable. It is important for the claimant to check whether the costs claimed exceed these fixed rates and adjust the claim accordingly.
The amount of reimbursable extrajudicial collection costs can be calculated using the Extrajudicial Collection Costs (Fees) Decree (Besluit vergoeding voor buitengerechtelijke incassokosten) and the following graduated scale:
- 15% of the principal sum of the claim for the first 2,500 euros of the claim, and
- 10% of the principal sum of the claim for the next 2,500 euros of the claim, and
- 5% of the principal sum of the claim on the next 5,000 euros of the claim, and
- 1% of the principal sum of the claim on the next 190,000 euros of the claim, and
- 0.5% on the remainder of the principal up to a maximum of 6,775 euros.
Parties may deviate from this scale, but such deviations cannot be to the disadvantage of consumer debtors.
Aspects of reasonable extrajudicial costs
Transparency: The claimant must provide a clear and itemized breakdown of the extrajudicial costs incurred. This allows for a proper assessment of reasonableness.
Documentation: Supporting documents, such as invoices, receipts, and time records, should be provided to substantiate the claimed extrajudicial costs.
Good faith (goede trouw): The claimant should act in good faith when claiming extrajudicial costs, making sure that the claimed amount accurately reflects the actual costs incurred.
Summary of extrajudicial costs in Dutch law
Section 6:96(2)(c) of the Dutch Civil Code provides a legal avenue for claiming extrajudicial costs (buitengerechtelijke incassokosten). The understanding and calculation of these costs rely on specific parameters and prerequisites, which require careful knowledge and application.
Claiming reasonable extrajudicial costs promotes a fair process and reduces the financial burden on the claimant. For guidance on navigating these rules, consulting a Dutch lawyer is advisable. This is an important aspect of Dutch legal procedures, reinforcing the principle of justice and equity.