Legal proceedings in Dutch civil law

The rules governing legal proceedings within private law are to be found in a central Act of Parliament, the Code of Civil Procedure. As a principle, Dutch civil procedural law does not provide for particular civil courts specialized in certain areas of private law. This means that there are no special courts for commercial law, intellectual property law, corporation law and so on. All civil lawsuits are dealt with by the District Court, although a distinction is made between matrimonial matters on the one hand and all other issues of civil law on the other. Nevertheless, a kind of specialisation has been brought about since legal proceedings regarding employment agreements, lease contracts, farm lease agreements, commercial agency agreements and hire-purchase agreements are always considered in first instance by the Subdistrict Court. In this respect the Subdistrict court could be regarded as a specialised court for these legal proceedings, although it judges over all labour issues as well as over all disputes concerning lease and farm lease agreements, commercial agencies and hire-purchases. But Subdistrict Courts also rule on other civil and commercial matters, regardless the nature of the lawsuit, if the value of the legal claim doesn’t exceed an amount of € 5.000. So the Subdistrict Court settles disputes of any nature as long as the plaintiff doesn’t claim more than € 5.000,-- or something of that value. Therefore, overall, it’s more a general court than a specialised one, while the District Court by nature is a general court that covers all civil and commercial matters, except the ones which are appointed by law to the Subdistrict Court.

A party is not allowed to perform procedural acts himself insofar it concerns civil or commercial cases before the District Court. All parties, both the plaintiff and the defendant, must be represented by a Dutch advocate (‘advocaat’). So, in order to bring a court action, a party always needs the assistance of a solicitor. Also during the court case only his solicitor may perform procedural acts, like making an oral or written defence. Of course, it is possible that parties are asked to give a clarification themselves during a hearing, but again only in the presence of their solicitor.

This rule, however, doesn’t apply to civil and commercial cases before the Subdistrict Court. Where the Subdistrict Court has subject-matter jurisdiction, parties may perform all procedural actions themselves. And they may, if they want to, also draw on the assistance of another representative than a solicitor. Even when one of them has asked for the help of a solicitor, the other party may still represent himself. This applies as well to cases involving an employment contract, an agency agreement, a lease or farm lease agreement or a hire-purchase agreement, irrespective of the maximum amount or value of the legal claim.

A party who wants to appeal against a judgement of the District Court or Subdistrict Court must always be represented by a Dutch solicitor. This means that a party, who acted without any help in the legal proceedings before the Subdistrict Court, still has to hire a solicitor to represent him during the appeal. In legal proceedings before the Supreme Court (‘cassation’), only solicitors registered at the bar of the district of the Hague are allowed to represent parties.

With regard to summary proceedings at the District Court the plaintiff must be represented by a Dutch solicitor, while the defendant may perform all necessary actions himself. As a rule, however, also the defendant hires a solicitor to assist him.

Summons proceedings or application proceedings

There are two main ways of submitting a dispute to a court in the Netherlands: by a writ of summons or by lodging an application (also called a petition). If the wrong method is chosen, the court will rectify proceedings. The law regulates the formalities and the rules of conduct that have to be observed during proceedings. The Code of Civil Procedure takes as a starting point the summons proceedings, thus the court case that has to be initiated by a writ of summons. Subsequently it indicates that the procedural rules for these court cases apply accordingly to court cases which have to be initiated by an application, unless the law specifies otherwise.

Although the Code of Civil Procedure elaborates in which way legal proceedings must be commenced and which formalities and rules of conduct must be followed during proceedings, it doesn’t indicate if the case must be brought before a court by a writ of summons or by an application. The answer to this question is laid down in the Civil Code. The provisions of the Civil Code generally include for each subject a reference to the method of how the involved legal actions can be brought to court. Where the provisions state that a person may request something, this has to be done by means of an application. Where they state that a person may claim or demand something, this implies that legal proceedings must be commenced by a writ of summons. If the words ‘request’ or ‘claim’ aren’t used, then usually legal actions have to be filed in court by a writ of summons.

Summons proceedings

Most legal proceedings must be commenced by a writ of summons. Almost all legal claims arising from contract, tort, an undue performance or an unjustified enrichment, therefore involving an obligation, are subject to the rules for summons proceedings. Important exceptions are the request to terminate or dissolve a lease agreement or an employment contract. Although it involves a contract and one or more obligations based on it, the action to terminate the agreement has to be brought to court by an application (petition). However, when one of the contracting parties demands the payment of for instance the rent or of back wages or he asks for another performance in compliance with such an agreement, his action is governed by the rules for summons proceedings.

In case of summons proceedings the plaintiff always has to draw a Dutch bailiff into the procedure. A bailiff is an officially appointed administrator who is employed to hand out writs of summons and other court documents and who assists at the enforcement and execution of court judgments. The bailiff serves, at the request of the plaintiff, a writ of summons on the defendant. In this writ the defendant is summoned to appear in court on a day and time as mentioned in the writ. The obligatory interference of a bailiff ensures that the defendant is aware that someone has filed a lawsuit against him and what is claimed. The bailiff or the solicitor of the plaintiff sends the served writ to the Registry of the court, where it is set down on the cause list as a court case. In a summons proceedings the decisions of the court are called judgments (‘vonnissen’).

It is to be noticed that, even though parties may represent themselves in a civil or commercial case before the Subdistrict Court, they still have to file their legal claim by a writ of summons that is served by a bailiff.

Application proceedings

Some legal proceedings have to be initiated by an application (also called petition). In application proceedings the petition is not served on the opposite party by a bailiff, but it is lodged directly with the Registry of the court. The court then summons the applicant and the concerned parties named in the application by mail. Here the court ensures that all involved parties are aware of the fact that there will be a court case which might affect them. In some cases, however, the petition has to be served by a bailiff as well, notably in divorce cases. In application proceedings the decisions of the court aren’t called judgments, but court orders (‘beschikkingen’).

Where in summons proceedings the plaintiff usually has a conflict with the defendant that has to be settled by court, the applicant in application proceedings generally asks the court to make a change in an already existing legal relationship. Most legal proceedings relating to family law are for that reason application proceedings, like requests with regard to matters of divorce, legal separation, parental responsibility, parental access, the legal position of minors, adoption, change of family names and the appointment of a guardian. The objective of the applicant is, for example, to end the marital bond or to change the relationship of the parents to their children. Application proceedings are also the most obvious way to start a case when there is no conflict between the involved parties at all, but merely the need to protect one of them, like requests for a protective administration of property or the institution of an adult guardianship. When a creditor wants to seize the property of his debtor to preserve it for recovering his claim (‘provisional attachment’), he may lodge an application in court. The same applies when he asks the court to declare his debtor bankrupt.

As a rule an application can only be lodged with the District Court by a Dutch solicitor who is representing the applicant in doing so. The other parties, who are called to the legal proceedings by the District Court, must be represented by a Dutch solicitor of their own. Applications lodged with the Subdistrict Court may, on the other hand, be handed in by the applicant himself, without any obligatory involvement of a solicitor. The same applies to other parties who are called in such application proceedings.

Fact finding and application of law

When a legal action is started before a court of first instance ( District Court or Subdistrict Court), this court will investigate the full facts of the case and it will determine the outcome of the dispute according to the rules of law applicable to these facts. So, in order to apply the law, the seized court first has to establish the facts of the dispute. This may require a hearing of witnesses, an analysis by an appointed independent expert or another investigation. After the court has established, as far as possible, what exactly happened, it will make a decision on the basis of these facts.

Not only the court of first instance, but also the Court of Appeal starts, if necessary, an investigation with regard to the relevant facts. It will consider the case in fullness again, so it is not bound by the facts established by the court of first instance. On the basis of the acknowledged old facts and of possibly ascertained new facts it will decide if the judgment of the court of first instance is correct or incorrect. It may come to the conclusion that the court of first instance has misinterpreted the rules of law. But it is possible as well that the Court of Appeal has established different relevant facts, which implicates that the court of first instance should have taken other rules of law into consideration. Of course this may lead to a different judgment too. If the Court of Appeal thinks that the decision of the court of first instance was incorrect, it will reverse it and give a decision of its own that covers all elements of the dispute.

The Supreme Court is the final instance to judge on a legal claim or application. Contrary to the court of first instance and the Court of Appeal it doesn’t examine the facts, but purely observes if the Court of Appeal has applied the law correctly. It must ground its judgment on the facts as established or acknowledged by the Court of Appeal. This means that a party, who disagrees with the judgment of the Court of Appeal, cannot turn to the Supreme Court for a further investigation of facts. He can only state that the judgment given on appeal is incorrect because the Court of Appeal misinterpreted the law or because basic formalities where violated. The Supreme Court then examines if the rules of law have been applied correctly in regard to the established facts. It must substantiate its opinion (Article 121 Dutch Constitution). Yet, if it thinks that the grievances of the applicant cannot lead to a judgement in cassation, it may reject the claim immediately and without further substantiation (Article 81 Judiciary Organisation Act). If it concludes that the Court of Appeal did not apply the law incorrectly and neither failed to observe basic formalities, the Supreme Court will likewise reject the claim of the applicant, but now making clear how it came to its decision. In both situations the legal proceedings have ended definitely, without any possibility to refer the same dispute to another court. Of course it’s possible that the Supreme Court, like the applicant, thinks that the judgement of the Court of Appeal is partly or entirely incorrect. It may agree with one of the grievances of the applicant or it may base this conclusion on its own findings. In that event the Supreme Court usually will end the dispute by giving its own decision on the matter. Also this decree is unchallengeable (final and binding). But when the Supreme Court feels that its conclusion requires a new investigation of facts it may refer the case back to another Court of Appeal for a review of the essence of the matter. This other Court of Appeal is compelled to consider the case with due observance of the decree of the Supreme Court. This is the only situation in which a lower court is officially bound by a judgment of a higher court. As a rule the legal proceedings will end with the judgment of this second Court of Appeal. Its judgment will become final and binding after three months, provided that none of the parties appeals against it within this period, since an appeal to the Supreme Court is again possible. If that happens, the decision will only become final and binding after the Supreme Court has given its ultimate decree.