Jurisdiction
When no European Regulation or International Convention (Treaty) is applicable to answer the question if a Dutch court has jurisdiction over an action with an international element, then the Dutch court must answer this question by applying the national rules on international jurisdiction of the Netherlands, which are to be found in Article 1 - 14 of the Code of Civil Procedure. These provisions make a distinction between legal proceedings to be initiated by a writ of summons and legal proceedings to be initiated by a petition (also called an application). This distinction is largely in line with that between on the one hand civil and commercial matters (writ of summons) and on the other hand family matters that do not involve a dispute over property (petition). The international private law of the Netherlands is largely based on international treaties and European Regulations. But when such a Treaty or Regulation is absent to determine if the seised Dutch Court has jurisdiction over an international claim, one has to fall back on purely national law to resolve if a legal claim is admissible. The national rules of the Netherlands concerning international jurisdiction can be found in the first provisions of the Dutch Code of Civil Procedure (Articles 1 - 14 of the ‘Wetboek van Burgerlijke Rechtsvordering’). This Code uses a number of criteria to establish whether a Dutch Court has jurisdiction over a right of action with an international element.
Article 1 of the Code of Civil Procedure makes clear that the national provisions on international jurisdiction only apply when the action is not covered by Regulations of the European Union or by international Treaties or Conventions. In general this means that the national provisions on international jurisdiction only come to the surface in civil or commercial matters where the defendant is not a resident of a Member State of the European Union or of EFTA, provided, of course, that the action is not dealt with differently in another Treaty or Convention. With regard to family matters the national provisions on international jurisdiction only become important when the case doesn’t fall under the scope of the Brussels II Regulation 2003 or of one of the other Conventions on these matters signed by the Netherlands. Article 2 and Article 3 of the Code of Civil Procedure enfold the main rule for international jurisdiction. The connecting factor is always the domicile or habitual residence of the party who has been invited by another person to appear in court. A distinction is made between legal proceedings to be initiated by a writ of summons (Article 2, with additional rules in Article 6 and Article 6a) and those to be initiated by a petition (Article 3, with exceptions to this rule in Article 4 and Article 5). This distinction is largely in line with that between on the one hand civil and commercial matters (writ of summons) and on the other hand family matters where no dispute over property is involved (petition). Article 7 of the Code of Civil Procedure provides additional rules for jurisdiction based on procedural efficiency. It applies when the Dutch court has jurisdiction over the initially filed claim and faces a separate claim against one of the defendants, a counter action of the opposite party, a joinder or an intervention of a third party. If the Dutch court has jurisdiction with respect to one of the defendants, then it has jurisdiction as well with respect to the other defendants who are called to the same legal proceedings, provided that the rights of actions against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency. If the Dutch court has jurisdiction over the original legal claim, then it has also jurisdiction over a counter action and over a right of action against a third party, who is called to the proceedings by a defendant as being the ultimate liable person, and over a right of action of a third party who has appeared in court for a consolidation of actions (‘joinder’) or an intervention, unless there is not enough connection between these other actions and the original action. The choice of forum is provided for in Article 8 and Article 9 of the Code of Civil Procedure. A safety-net provision (‘forum necessitatis’) is to be found in Article 9, paragraph 2. In the event that the same parties have brought an identical case to a Dutch court as well as to a court of another country, a stay of proceedings (‘lis pendens’) is regulated in Article 12 of the Code of Civil Procedure, as far as this question is not already solved by an applicable European Regulation or International Convention. The Articles 1 – 14 of the Code of Civil Procedure entail the main rules of Dutch international private law on jurisdiction over legal claims with an international element. But there are other national rules that cover this subject. Article 10 of the Code of Civil Procedure makes clear that the Dutch court has jurisdiction also in a case as meant in Article 767 of the Code of Civil Procedure. This Article provides a possibility to obtain judgement from a Dutch court that is enforceable in the Netherlands against a debtor in situations in which a creditor otherwise would have no means to start legal proceedings in the Netherlands, because the Dutch court is not competent to rule on the principal legal claim. Furthermore a Dutch court has, according to Article 10 of the Code of Civil procedure, jurisdiction as well when this results from legal provisions which point out the competent court other than those set out in the Third Section of the Second Chapter and the Second Section of the Third Chapter of the Code of Civil Procedure. These last provisions determine in which district a right of action has to be filed at the District Court or Subdistrict Court. They intent to regulate the territorial jurisdiction (jurisdiction ‘ratione loci’) in the Netherlands itself, therefore the distribution over the various courts of the Netherlands of legal claims at which no international element is involved. Before the reversion of the Code of Civil Procedure also international jurisdiction had to be determined on the basis of purely national territorial jurisdiction. If a Dutch court had jurisdiction according to these rules, it was also competent to give a judgment on a right of action with an international element falling within the scope of the rule of national territorial jurisdiction. Since the reversion in 2002 this old rule is abandoned. Now the question whether the Dutch court has jurisdiction of not has to be answered by the provisions of Articles 1 - 14 of the Code of Civil Procedure. Nevertheless, this rule has returned in Article 10 of the Code of Civil Procedure to avoid the possibility that the Dutch court has no jurisdiction over some matters, although they are so connected to the Netherlands that jurisdiction of a Dutch court would be preferable.
The most rights of actions related to family law have to be introduced at court by a petition (or application), unless it merely concerns property rights which are related to a marriage or an inheritance, such as the legal claim to divide a marital community of property or to apportion the deceased's estate. Article 3 of the Code of Civil Procedure contains a rule on jurisdiction for legal proceedings to be initiated by a petition of the petitioner himself or of his solicitor. As a principle rule, except when Article 4 or Article 5 are applicable, the Dutch court has jurisdiction:
The Dutch legislator felt is was desirable to balance out the Dutch rules on jurisdiction over family matters in accordance with the European Regulation concerning these issues, in particular with the Brussels II Regulation 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, even when this Regulation is not applicable itself. As a result of the intention to lean on the Brussels Regulations on jurisdiction as much as possible, Article 4 and Article 5 refer directly to one of these Regulations as far as it concerns family matters that are to be initiated by a petition. Article 4 points out that, even when the Brussels II Regulation 2000 is not applicable directly, the jurisdiction of the Dutch court on matters of divorce, legal separation, the dissolution of a marriage after a legal separation and the nullity, annulment or validity of a marriage has to be determined exclusively in accordance with Article 3, 4 and 5 of this European Regulation. Furthermore it makes clear that when the Dutch court has jurisdiction over the principal subject-matter it also has jurisdiction, although under certain restrictions, over subsidiary matters that are introduced simultaneously and over rights of actions claiming provisional and protective measures related to the defined family matters. But the Dutch court may never consider petitions that request for a court arrangement on parental responsibility or parental access if the court finds itself to be unable to consider the interests of the involved child properly because the case is only connected with the Dutch legal sphere to a minor degree. According to Article 5 of the Code of Civil Procedure the Dutch court has no jurisdiction over matters concerning parental responsibility if the child’s habitual residence is not situated in The Netherlands, unless – in exceptional circumstances - the court finds itself to be able to consider the interests of the involved child properly because the case is connected sufficiently with the Dutch legal sphere. Furthermore, a Dutch Court acknowledges it has international jurisdiction over family matters if both parties involved in the lawsuit, even though both possibly non-residents of the Netherlands, have mutually agreed that the legal proceeding will be carried out before a court in the Netherlands (forum clause), on condition that the involving parties have a reasonable interest to support their choice for a Dutch Court. But even then, not every international civil lawsuit can be transferred by parties to Dutch jurisdiction. The lawsuit must concern a claim which, if parties would have been able to come to terms with it themselves, in essence could have been solved through a mutual agreement between them. This is virtually always the case with commercial claims out of an agreement, a tortious act or a similar source of obligations. Yet, the most international legal actions on the field of family law are excluded from this free choice of parties, although Dutch Courts have admitted international claims, brought before them through a forum clause, which are related to maintenance obligations between two spouses (but not with regard to maintenance obligations concerning their children), the dissolution of a marital community of property and the apportionment of a heritage.
Virtually all legal claims based on property law, the law of obligations, the law of contracts, the law of tort or on intellectual property rights have to be brought before a Dutch court by filing a writ of summons at the Registry of the court. The writ must have been served on the defendant by a bailiff. Through this writ the defendant is invited to appear in court on a specific day. The same applies to legal claims based on family law or the law of succession, as far as they only entail a dispute over one or more rights in property, such as a legal claim to divide a matrimonial community of property or to divide the estate of a deceased person. Rights of actions with regard to solely family matters, such as a divorce or matters of parental responsibility, must usually be brought to court by a petition (application) of the petitioner himself or of his solicitor. Article 2 of the Code of Civil Procedure indicates that where legal proceedings are to be initiated by a writ of summons, the Dutch court has jurisdiction if the defendant has his domicile or habitual residence in the Netherlands (the ‘forum rei’ rule). The domicile and habitual residence of commercial partnerships and legal persons are the Municipality that is appointed as seat of the commercial partnership or legal person and the place where its head office is actually located, respectively. Article 6 of the Code of Civil Procedure offers alternative criteria for jurisdiction with regard to legal proceedings initiated by a writ of summons, regardless of the domicile or habitual residence of the defendant. These criteria independently make that the Dutch court has jurisdiction. They all presume that the legal claim is linked in such a way to the territory of the Netherlands that jurisdiction of the Dutch court is justified. Some of these provisions are drawn from the Brussels I Regulation, such as the rules under point (a) and point (e). According to Article 6, the Dutch court has also jurisdiction in matters concerning:
According to Article 6, under (a) of the Code of Civil Procedure, the Dutch court has, in addition to the principal rule of Article 2 of the Code of Civil Procedure, also jurisdiction in matters concerning obligations from an agreement, if the obligation which forms the basis for the right of action, has been performed or must be performed in The Netherlands; The Dutch court first has to determine which national law applies to the agreement. It is even possible that the content of the agreement is subject to an international treaty, like the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG). On the basis of the applicable civil law the Dutch court has to asses where the obligation, according to this law, is or must be performed. As far as the applicable law allows parties to point out the place of performance themselves, then this choice shall be respected by the Dutch court, unless the selected place has no real connection to the agreement or obligation at all. If, pursuant to the applicable civil law, including a rightful made choice of the parties, the obligation is or must be performed in the Netherlands, then the Dutch court has jurisdiction to rule on the matter, even when the agreement itself is not governed by Dutch civil law. Where it concerns a purchase or sale agreement of goods, the place where the obligation is performed, is in any event situated in the Netherlands, if under the agreement the sold movable thing was delivered or should have been delivered in the Netherlands. Where it concerns a service agreement, the place of performance is in any case located in the Netherlands, if under the agreement the services were supplied or should have been supplied in the Netherlands. This rule of Article 6a of the Code of Civil Procedure, however, only applies insofar parties have not agreed otherwise. It is drawn directly from Article 5 of the Brussels I Regulation.
In addition to the principal rule of Article 2 of the Code of Civil Procedure the Dutch court has, according to Article 6, under (b), of the Code of Civil Procedure, also jurisdiction in matters concerning an individual employment agreement or a commercial agency agreement, if the work is usually performed in The Netherlands or was prior to the end of the agreement usually performed in The Netherlands; The requirement that the work is usually performed in the Netherlands means that the work must be carried out mainly in the Netherlands. This provision also covers the situation that an employee not only usually performs his work in the Netherlands, but also in another country. In such an event the Dutch court has jurisdiction as well. In addition the Dutch court has jurisdiction in legal proceedings with regard to an employment agreement that already has ended, provided that the work that was performed prior to the end of the agreement, was usually (mainly) carried out in the Netherlands. The provision of Article 6, under (b), of the Code of Civil Procedure on jurisdiction over individual contracts of employment is not in line with comparable provisions of Article 18-20 of the Brussels I Regulation. The Dutch legislator deliberately did not copied the provisions of Article 19 paragraph 2 under point (b) and Article 20 of the Brussels I Regulation, because they were regarded as unnecessary restrictive. Contrary to the provisions of the Brussels I Regulation the agency agreement is explicitly mentioned in Article 6 under (b) of the Code of Civil Procedure. Although according to the European Court of Justice the provisions on jurisdiction over employment agreements also cover agency agreements (ECJ 8 March 1988 (9/87), ECR 1988, p. 1539), the Dutch legislator wanted to express this in the legal provision itself. In disputes concerning an individual employment contract, under which the work is performed temporarily in the Netherlands, the Dutch court has jurisdiction according to Article 6, under (c), of the Code of Civil Procedure insofar it concerns a right of action with regard to conditions of employment and labour conditions referred to in Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. When the employee does not usually perform his work in the Netherland, but only on a temporarily base, the rule under point (b) cannot lead to jurisdiction of a Dutch court. Nevertheless when the legal claim is related to conditions of employment or labour conditions, the Dutch court may consider it still, provided that the legal claim is based on Article 1 of the Act on Employment Conditions Transgressing Labour, Article 7 or 15 of the Act on Minimum Wages and Minimum Holiday Allowances, Article 2, paragraph 6 of the Act on the Declaration of the Universally Binding and Non-binding Status of Collective Labour Agreements, Article 8 or 11 of the Act Allocation of Employees by Intermediaries, as well as Article 5, paragraph 1, under point (b), point (d), point (e), or point (f), of the General Equal Treatment Act. The provision under point (c) is implemented in order to comply with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. It intents to assure that the Dutch court is competent to consider legal actions with regard to conditions of employment and labour conditions as mentioned in this European Directive, instituted by an employee who temporarily works in the Netherlands and whose employment agreement is governed by the law of another country than the Netherlands. If necessary, the provision under point (c) will set aside the provisions of Article 19-20 of the Brussels I Regulation and Article 5 of the Lugano Convention 1988, this in line with what is specified in Article 67 of the Brussels I Regulation and Article 53 paragraph 3 of the Lugano Convention 1988.
Irrespective of the domicile or habitual residence of the defendant, the Dutch court has, consistent with Article 6, under (d), of the Code of Civil Procedure, also jurisdiction in matters concerning an consumer agreement. This is an agreement closed by a party who, when entering into it, pursued commercial or professional activities and a natural person who, when entering into this agreement, did not pursue commercial or professional activities, provided that this natural person has his domicile or habitual residence in the Netherlands and that the party pursuing commercial or professional activities develops his commercial activities or his trade of profession in the Netherlands or directs such activities, by any means, to the Netherlands and the agreement falls within the scope of such activities. The jurisdiction of the Dutch court with regard to legal claims arising from a consumer agreement is regulated in Article 6 under (d) of the Code of Civil Procedure. Just like Article 15 – 17 of the Brussels I Regulation, it only applies when one of the parties enters into the agreement on behalf of his commercial practice, business or company, while the other one is only involved as a natural person for his own personal needs (ECJ 19 January 1993 (C-89/91), ECR 1993, p. I-139, ‘Shearson Lehman/TVB’, ECJ 21 June 1978, (150/77), ECR 1978, p. 1431 ‘Bertrand/Ott’ and ECJ 3 July 1997 (C-269/95), ECR 1997, p. I-3767 ‘Benincase/Dentakil’). A consumer association may not be equated for this purpose with a consumer (ECJ 1 October 2002, C-167-00), ECR 2002, p. I-8111). So when both parties are a legal person or when they are both acting on behalf of a commercial practice or business, the provision under point (d) is of no importance. The same goes for an agreement between two consumers. This provision may especially become important in future, since it also deals with consumer agreements that are brought about using e-mail or the Internet. If a foreign company approaches Dutch consumers by e-mail and as a result of this an agreement is closed between this company and a Dutch consumer, then the Dutch court has jurisdiction, regardless of where the foreign company is located. This means that the Dutch consumer may file a claim at a Dutch court against, for instance, a company in Bermuda as far as the legal claim is connected with a consumer agreement. On the condition that the foreign company has been called properly to the proceedings, the Dutch court can give a judgment on the claim. Nevertheless it is required that the foreign company indeed addresses itself in a commercial way to the Dutch public (too). If that’s not the case, then the provision under point (d) cannot lead to jurisdiction of the Dutch court, even when the legal claim involves a consumer agreement with a consumer who resides in the Netherlands. So when a consumer agreement is closed by using only the website of a foreign company, this does not necessarily mean that Article 6 under (d) is applicable, since it is not certain that the company uses this website also to approach Dutch consumers. An indication that it does, might be the fact that the website is partly in Dutch or that it contains information about transport fees for transportation to the Netherlands.
According to Article 6, under (e), of the Code of Civil Procedure the Dutch court has also jurisdiction in matters concerning obligations arisen from a tortious act, if the event that has caused the damage has taken place or may take place in the Netherlands; The Dutch court considers itself to be competent when a tortious act has occurred within the territory of the Netherlands, irrespective of the nationality or residence of the offender or injured person. This provision is taken from Article 5, point 3, of the Brussels I Regulation, but the case law of the European Court of Justice is not integrated in its text, since it was thought that the Dutch court should have the right to determine itself if and to what extent it wants to follow European case law in this respect. Nevertheless the Dutch legislator has acknowledged that the case law of the European Court of Justice will be an important source for the Dutch court in interpreting this provision. According to European case law an obligation in the sense of this provision is every legal claim that is filed with the intention to make a person liable for damages caused by an act not related to an agreement. The expression "matters relating to tort, delict or quasi-delict" contained in Article 5, point (3), of the Brussels Convention 1968 must be regarded as an independent concept covering all actions which seek to establish the liability of a defendant and which are not related to a "contract" within the meaning of Article 5, point (1) (ECJ 27 September 1988, (189/87), ECR 1988, p. 5565 ‘Kalfelis/Bank Schröder’). This includes a legal claim of the consignee of goods or his insurer seeking redress for damaged suffered during transport of the goods, not against the person who issued the bill of lading, but against the person whom the plaintiff considers to be the actual maritime carrier (ECJ 27 October 1998, (C-51/97), ECR 1998, p. I-6511 ‘Réunion Européenne/Spliethoff’s Bevrachtingskantoor’). Excluded, however, are legal claims arising after a creditor has nullified on the basis of fraudulent conveyance a juridical act to which his debtor was a party (ECJ 26 March 1992 (C-261/90) ECR 1992, p. I-2149). But a court which has jurisdiction under Article 5, point (3), of the Brussels I Regulation over an action in so far as it is based on tort or delict does not have jurisdiction over that action in so far as it is not so based (ECJ 27 September 1988, (189/87), ECR 1988, p. 5565 ‘Kalfelis/Bank Schröder’). In such an event the legal claim must be split up, unless jurisdiction over the claim not based on tort or delict can be founded on another ground, such as the fact that the agreement has to be performed in the Netherlands (Article 6 under (a) or that the rights of actions against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency (Article 7, paragraph 1, of the Code of Civil Procedure). The term ‘the event that has caused the damage has taken place (…) in the Netherlands’ in Article 6, under (e), of the Code of Civil Procedure is intended to be in line with the term ‘the place where the harmful event occurred’ in Article 5, point (3), of the Brussels I Regulation. Article 5, point (3), of the Brussels I Regulation states that a person, domiciled in a Member State may, in another Member State, be sued in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression ‘place where the harmful event occurred', in Article 5, point (3), must be understood as being intended to cover both, the place where the damage occurred and the place of the event giving rise to it. The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage (ECJ 30 November 1976 (21/76) ECR 1976, p. 1735 ‘Bier/Mine de potasse d’Alsace’). On the other hand the term ‘place where the harmful event occurred’ does not, on a proper interpretation, cover the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Member State. Although that term may cover both the place where the damage occurred and the place of the event giving rise to it, it cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere (ECJ 19 September 1995 (C-364/93) ECR 1995, p. I-2719 ‘Marinari/Lloyd’s Bank’). The rule on jurisdiction laid down in Article 5, point (3), of the Brussels I Regulation can neither be interpreted as permitting a plaintiff pleading damage which he claims to be caused by the harm suffered by other persons, who were direct victims of the harmful act, to bring proceedings against the perpetrator of that act before the courts in the place in which he himself ascertained the damage to his assets (ECJ 11 January 1990 (C-220/88) ECR 1990, p. I-49 ‘Dumez France/Hessische Landesbank’). The European Court has determined also which Member State has jurisdiction when de harmful event consists of a tortious publication in a newspaper that is issued in several Member States. The victim of a libel by a newspaper article distributed in several Member States may bring an action for damages against the publisher either before the courts of the Member State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Member State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised. The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the plaintiff in an action in tort, delict or quasi-delict are not governed by the Brussels I Regulation but are determined in accordance with the substantive law designated by the national conflict of laws rules of the court seised on the basis of the Brussels I Regulation, provided that the effectiveness of the Regulation is not thereby impaired. The fact that under the national law applicable to the main proceedings damage is presumed in libel actions, so that the plaintiff does not have to adduce evidence of the existence and extent of that damage, does not therefore preclude the application of Article 5, point (3), of the Brussels I Regulation (ECJ 7 March 1995 (C-68/93) ECR 1995, p. I-415 ‘Shevill/Presse Alliance’). In a situation where the consignee of goods or his insurer seeks redress for damaged by filing a legal claim against the person who is not assigned by the bill of lading, but who is considered to be the actual maritime carrier who has caused the damage, the term `place where the harmful event occurred' cannot be understood as the place where the consignee, on completion of a transport operation by sea and then by land, merely discovered the existence of the damage to the goods delivered to him. Whilst it is true that the abovementioned term of Article 5, point (3), may cover both the place where the damage occurred and the place of the event giving rise to it, the place where the damage arose can, in the circumstances described, only be the place where the maritime carrier had to deliver the goods (ECJ 27 October 1998, (C-51/97), ECR 1998, p. I-6511 ‘Réunion Européenne/Spliethoff’s Bevrachtingskantoor’). In conformity with Article 5, point (3), of the Brussels I Regulation, the Dutch legislator has added to the text of Article 6, under (e), of the Code of Civil Procedure the words ‘or may take place’. Just like Article 5, point (3), of the Brussels I Regulation it covers therefore not only cases where the harmful event has occurred, but also those where it may occur in future. This addition is a result of European case law. The rules on jurisdiction laid down in the Brussels Convention 1968 had to be interpreted, according to the European Court of Justice, as meaning that a preventive action brought by a plaintiff (in this case a consumer protection organisation) for the purpose of preventing a trader from using terms considered to be unfair in contracts with private individuals, is a matter relating to tort, delict or quasi-delict within the meaning of Article 5, point (3), of that Convention (ECJ 1 October 2002 (C-167/00) ECR 2002, p. I-8111 ‘VKI/Henkel’).
When parties disagree about real property rights in immovable things located in the Netherlands, the Dutch court regards itself competent to admit the claim. The same applies to legal claims arisen from a lease or farm lease agreement to an immovable property that is situated in the Netherlands. The court derives its jurisdiction in such events from Article 6, under (f), of the Code of Civil Procedure if the plaintiff does not have his domicile or habitual residence in the Netherlands. When a dispute arises with regard to a real property right in an immovable thing that is located in the Netherlands the Dutch court has jurisdiction, provided that no Regulation or Convention deals with this matter otherwise. The rule also includes disputes over limited property rights in such immovable things, like easements, long leaseholds, rights of superficies, apartment rights, usufructs and mortgages, as long as the encumbered immovable thing is located in the Netherlands. The same rule on jurisdiction applies to disputes arising from a lease agreement or farming lease agreement related to an immovable thing (building, land) situated in the Netherlands. Article 6, under (f), of the Code of Civil Procedure is in line with the rules of International Private Law on jurisdiction in matters related to immovable property, like Article 22, point (1), of the Brussels I Regulation. But, contrary to this last rule, Article 6, under (f), of the Code of Civil Procedure does not grant exclusive jurisdiction to Dutch courts, since the Dutch legislator is not competent to regulate jurisdiction of foreign courts and States, not even with regard to immovable things that are situated in the Netherlands. A difference is also that the Dutch rule does not contain a regulation for jurisdiction over proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months (holiday houses or vacation homes). According to Article 22, point (1), of the Brussels I Regulation, in such situations the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State. Article 6, under (f), of the Code of Civil Procedure is effective when no Regulation, Treaty or Convention covers a dispute over Dutch immovable property. So when, for instance, an Argentinean company claims it has rented a storehouse at the Rotterdam harbour, it is clear that the dispute can be solved by the Dutch court, even when the owner of that storehouse is a Russian company with no other connections to the Netherlands. The same applies to a dispute over, for example, the ownership of an apartment building in Amsterdam or a long leasehold or mortgage on it. Article 6, under (f), of the Code of Civil Procedure has also meaning for purely financial disputes that are related directly to a real property right in or a lease agreement to Dutch immovable property. So when the dispute between the earlier mentioned Argentinean company and the Russian owner of the storehouse only concerns the question whether the lessee is entitled to postpone the payment of the rent as long as the lessor has not completed the necessary repairs, the Dutch court has jurisdiction. The Dutch court is also competent to consider disputes over utilization fees, ground rents and ground fees, based on a limited property right in an immovable thing that is located in the Netherlands. But Article 6, under (f), of the Code of Civil Procedure has no meaning for disputes arising from a loan agreement, even when the claim of the creditor is secured by a mortgage on Dutch immovable property. It has neither impact on disputes over the rights and obligations out of a sale or purchase agreement related to immovable property in the Netherlands. The question if the Dutch court has jurisdiction over these disputes must be answered in accordance with the main rule of jurisdiction of Article 2 of the Code of Civil Procedure for legal proceedings which are to be initiated by a writ of summons (the Dutch court has jurisdiction if the defendant has his domicile or habitual residence in the Netherlands) or in accordance with one of the alternative criteria offered by Article 6 of the Civil Code of Procedure, especially by the provision under (a), stating that the Dutch court has jurisdiction in matters concerning obligations from an agreement if the obligation which forms the basis for the right of action has been performed or must be performed in The Netherlands. Furthermore Article 6, under (f), of the Code of Civil Procedure also plays a part when the dispute is covered in general by a Regulation or Convention, but because of particular circumstances is excluded from its scope. This is for instance the case with disputes over immovable things located in the Netherland, arising from the law of inheritance or matrimonial property law. This means that disputes in connection with the division of an estate or a matrimonial community of property, involving Dutch immovable things or real property rights in it, comes within reach of Article 6, under (f), of the Code of Civil Procedure, since Article 22, point (1), of the Brussels I Regulation does not apply to such matters.
According to Article 6, under (g), of the Code of Civil Procedure, the Dutch court has in addition to the principal rule of Article 2 of the Code of Civil Procedure also jurisdiction in matters concerning estates of a deceased natural person, if the last domicile or last habitual residence of the deceased was located in the Netherlands. When the deceased had his last domicile or habitual residence in the Netherlands, the Dutch court has jurisdiction over disputes concerning the estate of the deceased, irrespective of the place where the assets of this estate may be at that time. This may include disputes over the division of property rights in immovable property abroad, unless the jurisdiction of the Dutch court is blocked by a European Regulation or International Convention.
According to Article 6, under (h), of the Code of Civil Procedure, the Dutch court has, regardless of the principal rule of Article 2 of the Code of Civil Procedure, jurisdiction in matters concerning the validity, nullity or dissolution of commercial partnerships and legal persons established in the Netherlands, including disputes over the validity, nullity or legal effects of their decisions or the decisions of their bodies, or the rights and obligations of their members or associates as such. Article 6, under (h), of the Code of Civil Procedure contains a provision that resembles Article 22, point (2), of the Brussels I Regulation. Disputes over a commercial partnership or legal person itself, and not over agreements to which such entities are merely a party, fall within the scope of this provision, provided that the commercial partnership or legal person has its seat in the Netherlands. When a legal person originally was established under Dutch law, but afterwards it has removed its seat to another country, then Article 6, under (h), of the Code of Civil Procedure does not apply. In accordance with Article 22, point (2), of the Brussels I Regulation, in order to determine that seat, the court shall apply its rules of private international law. Like Article 22, point (2), of the Brussels I Regulation, Article 6, under (h), of the Code of Civil Procedure also covers disputes over the validity of the decisions of the organs of a legal person. Nevertheless, Article 6, under (h), of the Code of Civil Procedure is more attuned to the Dutch law on legal persons. The Dutch court has, contrary to Article 22, point (2), of the Brussels I Regulation, also jurisdiction over disputes that are based on the legal effects of the decisions of Dutch legal persons or its bodies (organs) or over disputes about the rights and duties of members of an association or partners in a commercial partnership, even when the dispute is not connected to the validity of the legal person or commercial partnership itself.
Legal claims that are connected with or arising from a bankruptcy, a suspension of payment under a moratorium or the Debt Repayment Scheme for Natural Persons, may be reviewed by the Dutch court in line with Article 6, under (i), of the Code of Civil procedure, provide that the bankruptcy, suspension of payment or the application of the Debt Repayment Scheme has been proclaimed or granted in the Netherlands. A natural person who has his domicile or habitual residence in the Netherlands or a legal person or commercial partnership with its seat in the Netherlands, may be declared bankrupt by a Dutch court (Article 2 and Article 10 Bankruptcy Act). With regard to the same persons a Dutch court may order a moratrium on payment and appoint a legal administrator (Article 214 Banruptcy Act). Natural persons who have their domicile or habitual residence in the Netherlands, and who have become bankrupt, may address themselves to a Dutch court for the application of the Debt Repayment Scheme for Natural Persons (Article 284 Bankruptcy Act). This ensures them that they are released within three years from al the debts and obligations existing at the day on which they have been declared bankrupt, given that during this period they have tried to satisfy these debts and obligations to their best abilities, under supervision of a legal administrator. Nevertheless, the provision of Article 6, under (i), of the Code of Civil Procedure is not written for these rights of actions. A bankruptcy, a moratorium on payment and the Debt Repayment Scheme enter into force by a court order that is based on a petition (application), while Article 6 of the Code of Civil Procedure, including the provision under point (i), only applies to legal proceedings that are to be initiated by a writ of summons. Article 6, under (i), of the Code of Civil Procedure grants jurisdiction to a Dutch court concerning disputes that are closely connected with such a bankruptcy, suspension or Debt Repayment Scheme and that must be filed at the court by a writ of summons. Examples are rights of action instituted by the liquidator on the ground of fraudulent conveyance or to achieve the compliance with an agreement to which the debtor was a party. The Dutch court has jurisdiction over these legal claims even when the defendant is a foreign person or company. However, Article 6, under (i), of the Code of Civil Procedure may be set aside by Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (Official Journal L 160, 30/06/2000 P. 0001 – 0018). This Regulation applies to collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator (Article 1 Insolvency Regulation). Article 3 of the Insolvency Regulation governs matters of international jurisdiction over insolvency proceedings. It applies to all Member States of the European Union, with the exception of Denmark, that has not accepted it. The courts of the Member State within the territory of which the centre of a debtor's main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary (Article 3 (1) Insolvency Regulation). Where the centre of a debtor's main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State (Article 3 (2) Insolvency Regulation). Where insolvency proceedings have been opened under paragraph 1, any proceedings opened subsequently under paragraph 2 shall be secondary proceedings. These latter proceedings must be winding-up proceedings (Article 3 (3) Insolvency Regulation). Territorial insolvency proceedings referred to in paragraph 2 may be opened prior to the opening of main insolvency proceedings in accordance with paragraph 1 only (a) where insolvency proceedings under paragraph 1 cannot be opened because of the conditions laid down by the law of the Member State within the territory of which the centre of the debtor's main interests is situated; or (b) where the opening of territorial insolvency proceedings is requested by a creditor who has his domicile, habitual residence or registered office in the Member State within the territory of which the establishment is situated, or whose claim arises from the operation of that establishment (Article 3 (4) Insolvency Regulation).
Article 7 of the Code of Civil Procedure provides additional rules for jurisdiction over disputes initiated by a writ of summons. These rules are based on procedural efficiency and resemble some rules laid down in Article 6 of the Brussels I Regulation. Where a Dutch court has jurisdiction with respect to one of the defendants, it also has jurisdiction with respect to the other defendants who are called to the same legal proceedings, provided that the rights of actions against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency. This rule of paragraph 1 of Article 7 of the Code of Civil Procedure is compatible with Article 6 of the Brussels I Regulation. According to this last rule a person domiciled in a Member State may also be sued where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. When the Dutch court has jurisdiction to give a binding judgment on the claim for one of the defendants, either because of a European Regulation or International Convention or because of a national rule of International Private Law, then it automatically may give a binding judgment for all other defendants that are called to the same proceedings, irrespective of their nationality, domicile or habitual residence and irrespective of the place where the obligation out of the agreement was or has to be performed. Relevant is only that the rights of actions against the different defendants are connected with each other in such a way that a joint consideration in the same legal proceedings is justified for reasons of efficiency. This specific norm tries to prevent that Article 7, paragraph 1, of the Code of Civil Procedure is internationally regarded as an exorbitant rule of jurisdiction. That is way the Dutch legislator has adapted its text to the case law of the European Court of Justice on this subject. For Article 6, point (1), of the Brussels I Regulation to apply, a connection must exist between the various actions brought by the same plaintiff against different defendants. That connection, of which its nature must be determined independently, must be of such a kind that it is expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (ECJ 27 September 1988 (189/87) ECR 1988, p. 5565 ‘Kalfelis/Bank Schröder’). The Dutch Supreme Court had ruled a similar decision (HR 16 May 1986, NJ 1987, 456 ‘Stonestar/Javeri’). When there is enough connection between the two legal claims against two different defendants, the court with jurisdiction over one of the legal claims according to the Brussels I Regulation, automatically also has jurisdiction to consider the claim against the other defendant, even when, without such a connection between the two involved legal claims, it would not have been able to rule on this last claim separately according to the provisions of the Brussels I Regulation. The fact that the court declares the legal claim, over which it has jurisdiction by itself, inadmissible, does not need to result in a lack of jurisdiction with regard to the other legal claim, that in itself did not fall within the competence of the court. As the European Court of Justice has stated, it is possible to ground jurisdiction on Article 6, point (1), of the Brussels I Regulation in the context of an action brought in a Member State against a defendant domiciled in that State and a co-defendant domiciled in another Member State, even when that action is regarded under a national provision as inadmissible from the time it is brought in relation to the other defendant, such as a rule precluding creditors from bringing individual actions against a debtor who has been declared bankrupt. First, that provision does not include any express reference to the application of domestic rules or any requirement that an action brought against a number of defendants should be admissible, by the time it is brought, in relation to each of those defendants under national law. Second, since it is not one of the provisions which provide expressly for the application of domestic rules and thus serve as a legal basis therefore, that provision cannot be interpreted in such a way as to make its application dependent on the effects of domestic rules. However, Article 6, point (1), of the Brussels I Regulation cannot be interpreted in such a way as to allow a plaintiff to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled (ECJ 13 July 2006 (C-103/05), ECR 2006, p. I-6827 ‘Reisch Montage/Kiesel Baumaschinen’). Initially it seemed that the European Court of Justice thought there was not enough connection between the rights of actions against the defendants when the plaintiff claimed from one them compensation of damages by virtue of a contractual liability and from the other damages caused by tort (ECJ 27 October 1998 (C-51/97) ECR 1998, p. I-6511 ‘Réunion européenne/Spliethoff’s Bevrachtingskantoor’). It ruled that Article 6, point (1) of the Brussels I Regulation implied that a defendant domiciled in a Member State cannot, on the basis of that provision, be sued in another Member State before a court seised of an action against a co-defendant not domiciled in a Member State on the ground that the dispute is indivisible rather than merely displaying a connection. The objective of legal certainty pursued by the Brussels I Regulation would not be attained if the fact that a court in a Member State had accepted jurisdiction as regards one of the defendants not domiciled in a Member State made it possible to bring another defendant, domiciled in a Member State, before that same court in cases other than those envisaged by the Regulation, thereby depriving him of the benefit of the protective rules laid down by it. Later the European Court has adjusted its notion. The fact that the legal claims against a number defendants are based on different legal aspects does not prevent itself that the seised court finds it has jurisdiction over all legal claims as provided for in Article 6, point (1), of the Brussels I Regulation. Although, according to the European Court of Justice, the wording of that provision does not show that the conditions laid down for its application include a requirement that the actions brought against different defendants should have identical legal bases, it must however be ascertained whether, between various claims brought by the same plaintiff against different defendants, there is a connection of such a kind that it is expedient to determine those actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. For decisions to be regarded as contradictory, it is not sufficient for there to be a divergence in the outcome of the dispute. In addition, Article 6, point (1), of the Brussels I Regulation applies also where claims brought against different defendants are connected when the proceedings are instituted, to avoid the risk of irreconcilable judgments resulting from separate proceedings, without there being any further need to establish separately that the claims were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled (ECJ 11 October 1997 (C-98/06) ‘Freeport/Ole Arnoldsson’). But when the legal claims against a number of defendants cannot lead to irreconcilable judgments resulting from separate proceedings, because the legal aspects on which the claim is based is related to different actual facts and has to be considered by different national laws, then it is not possible for a court, who would in itself have no jurisdiction over one of the claims, to regard itself competent to rule on that claim anyway only because it has jurisdiction over the other claim against one of the other defendants. In such a situation there is neither sufficient connection between the legal claims to justify a jurisdiction based on the application of Article 6, point (1), of the Brussels I Regulation. The European Court has made clear that this Article does not apply in European patent infringement proceedings involving a number of companies established in various Member States in respect of acts committed in one or more of those States even where those companies, which belong to the same group, may have acted in an identical or similar manner in accordance with a common policy elaborated by one of them. Since neither the patent infringements of which the various defendants are accused nor the national law in relation to which those acts are assessed, are the same, there is no risk of irreconcilable decisions being given in European patent infringement proceedings brought in different Member States, since possible divergences between decisions given by the courts concerned would not arise in the context of the same factual and legal situation. It follows that the connection required for Article 6, point (1), of the Brussels I Regulation to apply cannot be established between such actions (ECJ 13 July 2006 (C-539/03), ECR 2006, p. I-6535 ‘Roche/Primus and Goldenberg’). A Dutch court having jurisdiction over the initially filed legal claim, has jurisdiction as well over a counter claim filed by the defendant in the same proceedings against the plaintiff and over a legal claim that is filed by the defendant against a third party who is called to the pending proceedings or over a legal claim of a third party that is filed in the proceedings by an intervening third party against the plaintiff. This is stated in Article 7, paragraph 2, of the Code of Civil Procedure: if the legal proceedings are to be initiated by a writ of summons and the Dutch court has jurisdiction over the legal claim, then it has also jurisdiction over a counter action and over a right of action against a third party, who is called to the proceedings by a defendant as being the ultimate liable person, and over a right of action of a third party who has appeared in court for a consolidation of actions (‘joinder’) or an intervention, unless there is not enough connection between these other actions and the original action. The Dutch court has to assess firstly if it has jurisdiction over the initially filed legal claim of the plaintiff against the defendant. This has to be determined on the basis of the principal rule of Article 2 of the Code of Civil Procedure or on an alternative ground for jurisdiction as referred to in Article 6 of the Code of Civil Procedure, like the fact that the obligation from the agreement has to be performed in the Netherlands. If it has jurisdiction over the original claim, it may also give a judgment on the counter claim of the defendant or on the claim that is brought in against or by a third party who is called to the proceedings or appears of his own in court. But again, only when there is sufficient connection between this legal claim and the initially filed claim. This provision is in line with the case law of the European Court of Justice on Article 6, point (2), of the Brussels I Regulation. Where a defendant domiciled in a Member State is sued in a court of another Member State and this court has jurisdiction to consider that cause of action, that court also has jurisdiction by virtue of Article 6, point (2), of the Brussels I Regulation to rule on an action based on a warranty or guarantee brought against a third person domiciled in a Member State other than that of the court seised of the original proceedings. To enable the entire dispute to be heard by a single court, Article 6, point (2), of the Brussels I Regulation simply requires there to be a connecting factor between the main action and the action on a warranty or guarantee, irrespective of the basis on which the court has jurisdiction in the original proceedings (ECJ 15 May 1990 (C-365/88) ECR 1990, p. I-1845 ‘Agentur Hagen/Zeehage’). A counter claim in the sense of Article 7, paragraph 2, of the Code of Civil Procedure has to be differentiated from the defence of the defendant, that the plaintiff is still owing a debt to him, so that the plaintiff, if necessary after offsetting this debt against his claim, has nothing left to claim from him. Article 6 (3) of Brussels I Regulation is intended to establish the conditions under which a court has jurisdiction to hear a claim which would involve a separate judgment or decree. It therefore applies only to counter claims by defendants which seek the pronouncement of such a judgment or decree. It does not apply to the situation where a defendant raises, as a pure defence, a claim which he allegedly has against the plaintiff. The defences which may be raised and the conditions under which they may be raised to produce a successful defence are governed by national law (ECJ 13 July 1995 (C-341/93) ECR 1995, p. I-2053 ‘Danvaern/Otterbeck’). A Dutch Court has to turn down an international lawsuit, brought to it by one of the parties, if this party already has obliged himself towards his counterpart to file the claim at a forum of another country. The Dutch Court will then decide that the mutually appointed foreign court is the only forum with jurisdiction over this matter. But again, there are exceptions to this rule. If it doesn’t concern a lawsuit which in essence could be solved through a mutual agreement between parties, then the Dutch Court will, despite of the derogatory forum clause, accept jurisdiction, provided of course this is in conformity with other legal criteria for admitting international lawsuits to Dutch jurisdiction. A Dutch Court will also accept an international legal claim, regardless of a differently stating forum clause, if only one of the parties to that clause has the right to call it in and the other lacks such choice, provided its jurisdiction can be based on other rules of private international law, like a European Regulation, a Convention (Treaty) or a national provision. Moreover, a Dutch Court will surpass a forum clause in which is chosen for a foreign court, if the legal action comes from a dispute with an employer or consumer whose habitual residence is located in the Netherlands, unless the forum clause was made after the dispute had arisen.
The choice of forum is provided for in Article 8 of the Code of Civil Procedure. The freedom of choice is limited to disputes arisen from legal relationships that only affect the interests of the involved parties themselves. This is the case in civil and commercial matters as well as in family matters to the extent that they are related to a dispute over property rights. As a rule it concerns rights of actions that have to be initiated by a writ of summons. Disputes over such matters are at the free disposal of parties, so they are allowed to choose by mutual agreement a court or judge to settle them. The parties may make a forum clause that appoints a Dutch court or a foreign court or even an arbitrator. Where parties have chosen a foreign court or arbitrator to consider their case, the Dutch court will no longer admit the related legal claim. It recognizes the earlier made choice of parties and, as a result, it will proclaim that it has no longer any jurisdiction, even when it would be competent to give a judgment according to a European Regulation, a Treaty or the international private law of the Netherlands. An exception has to be made for disputes concerning an employment agreement or a consumer agreement falling within the scope of Article 6 of the Code of Civil Procedure where the choice of forum was made prior to the moment on which the dispute came to existence, for instance because of a forum clause in the employment agreement itself or in the general conditions applying to the consumer contract. When the forum clause appoints a Dutch court, the Dutch court will accept this choice and therefore admit the case to be settled, on the condition that the dispute concerns a matter at the free disposal of parties. Whether or not the Dutch court has jurisdiction according to European Regulations, Treaties or the international private law of the Netherlands, is no longer important. Nevertheless, when there is no reasonable interest to choose for a Dutch court, it may deny to admit the action. In order to be recognized as a valid forum choice, it is necessary that the forum clause is put down in a written agreement between parties. This agreement may be closed prior to the moment on which the dispute has come to existence or afterwards. It may be one of the many clauses in the existing principal agreement or the applicable general conditions or it may form an independent agreement on its own. In any event, the forum clause shall be regarded and evaluated as a separate agreement. The seized Dutch court is competent to assess the validity of the principal agreement, including its general conditions, of which the forum clause forms a part or to which it is related.
When Articles 2 up to and including 8 of the Code of Civil Procedure indicate that a Dutch court has no jurisdiction, then it nevertheless has jurisdiction if it concerns a legal relationship that only affects the interests of the involved parties themselves and the defendant or a party with an interest in the legal proceedings has appeared in court, not exclusively or with the intention to dispute the jurisdiction of the Dutch court, unless there is no reasonable interest to conclude that the Dutch court has jurisdiction (Article 9, paragraph 1, Code of Civil Procedure). This provision resembles the one in Article 24 of the Brussels I Regulation.
When Articles 2 up to and including 8 of the Code of Civil Procedure indicate that a Dutch court has no jurisdiction, then it nevertheless has jurisdiction if it appears to be impossible to start a civil case outside the Netherlands (negative jurisdiction conflict) or the plaintiff cannot be expected to start a procedure in a State that would have jurisdiction, for instance because of a war, on condition that the case is sufficiently connected with the Netherlands (Article 9, paragraph 2, Code of Civil Procedure). This last rule only applies to legal proceedings which are to be initiated by a writ of summons.
Article 12 of the Code of Civil Procedure makes an arrangement in the event that the same parties have filed the same right of actions simultaneously for the courts of two (or more) different States. If a civil action is first brought before a foreign court, which proceedings might result in a judgment that could be recognized and, where appropriate, enforced in the Netherlands, then the Dutch court, secondly seised to consider the same cause of action between the same parties, may stay its proceedings until the first seised foreign court has given its judgment. If this judgement indeed can be recognized and, where appropriate, enforced in the Netherlands, then the Dutch court shall decline jurisdiction. Where it concerns legal proceedings that are to be instituted by a writ of summons, Article 11 of the Code of Civil Procedure shall apply accordingly, so that the plaintiff who wants to appeal to a stay of proceedings has to make this objection prior to all other objections and defences under the penalty of loosing the right to invoke it (Article 12 Code of Civil Procedure). end
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