1 Study JAI A3/02/2002 The Netherlands: Dr. Mirjam Freudenthal ...

Study JAI A3/02/2002
The Netherlands: Dr. Mirjam Freudenthal
Questionnaire concerning provisional measures
1 Definition
1.1 Within the definition of Art. 24 the following are included:
a. Interim injunction procedures, the kort geding at the district court and the
‘kantonrechterlijk’ kort geding at the kantonsection of the district court – as decided by the
EC of Justice in the Van Uden and Mietz cases.
b. Conservatory or provisional attachment orders, as well as the levying of attachment –
see the questionnaire on garnishment.
1.2. Subdivision of provisional measures:
In the Netherlands provisional measures are of two kinds. First, there are those
provisional measures that are only aimed at constituting a temporary status quo, like
provisional measures in divorce proceedings. Secondly, there are those provisional measures
that are aimed at securing the execution of the judgement on the merits, like the kort geding.
In practice the latter measures are the most important and the most interesting, since the court
is subject to only a few restrictions when applying these measures.
1.2.1 Yes, conservatory attachment orders, articles 700 – 770c Burgerlijke Rechtsvordering,
CCP). Especially the provisional ‘verhaalsbeslagen’ (attachement orders to recover monetary
claims by selling the attached goods). They fall within the second group (under 1.1.b)
1.2.2 Not a special subdivision; sometimes an arrest on the goods together with a kort
geding as the procedure on the merits (see for problems no. 3.8)
1.2.3 Yes, kort geding; articles 254 – 260 CCP.
1.3 See under 1.2.1 and 1.2.3. Measures under 1.2.2 fall within the subdivision of 1.2.3:
Kort geding.
1.4 See under 1.2
1.5 Search orders are not common. But the law of evidence offers several options for
provisional measures to secure evidence, some to be requested prior to instigating the claim
(art. 186-193 CCP), some parallel to the proceedings, like the provisional examination of
witnesses and expert witnesses, and the provisional court inspection of property. In the law of
evidence the word ‘provisional’ means: prior to the regular time for delivering evidence at the
hearing. In the Dutch commentary on Art. 24 BR I Treaty, it is accepted that these measures
do not belong to the provisional measures under Art. 24 (Losbladige Burgerlijke
Rechtsvordering, Verdragen & Verordeningen, Kluwer).
2. Measures ensuring the enforcement of judgements (attachment orders)
2.1 For enforcement itself only some of the conservatory attachment orders are provided
for. Subject to special conditions, in order to obtain a title the kort geding may be used.
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2.2 Performance to act: It is quite usual in a kort geding procedure to request an injunction
to do or not to do something in particular. As a rule these injunctions include an ‘astreinte’.
These astreintes are most effective in forcing the defendent to obey the injunction. If the
defendent is unwilling to perform the act which is the subject of the injunction the claimant
may request, e.g. in kort geding, that he be authorized to perform the act himself, the so-called
execution in rem (art. 3:299 ss 1 BW). Execution in rem is most useful in claims for the
rectification of press articles or advertisements. The injunction to transfer immovable property
and the execution of an injunction in rem are governed by Arts. 3:300 and 3:301 BW.
2.2.1 See 2.2.
2.2.2 See 2.2
2.3 The preconditions for obtaining provisional measures
2.3.1 With regard to the claim that is to be secured:
2.3.1.1 Conservatory arrest: the claim must be due at the moment when the conservatory
arrest becomes executory, that means at the moment the judgement becomes due.
In kort geding the claim has to be due.
2.3.1.2 Yes, see under 2.3.1.1. And in special cases: e.g. in maintenance procedures a
conservatory garnishment with the bank or employer can be made for future payments.
2.3.1.3 No (see questionnaire on garnishment).
2.3.1.4 Not applicable
2.3.2 With regard to the potential injury to the plaintiff
2.3.2.1 There are several kinds of conservatory arrests related to the goods to be attached.
Only in cases of a conservatory arrest on non-registered movables in the posession of the
debtor as well as on rights to bearer and order (rechten aan toonder en order) (art. 711 CCP)
must there be a fear of embezzlement. Urgency is not required. In other conservatory arrests
this condition is not required.
2.3.2.2 Not applicable
2.3.2.3 Not applicable
2.3.2.4 No
2.3.3 Additional preconditions. None. But for more information see questionnaire
garnishment
2.4 Proceedings to obtain an order for provisional measures (only conservatory arrest, kort
geding will be discussed under 3 and 4)
2.4.1 which court has jurisdiction:
2.4.1.1 Art. 700 CCP: the ‘voorzieningenrechter’ of the district court has jurisdiction where
one or more of the goods in question are in his judicial district. See for rights and claims:
questionnaire garnishment 1.1.: jurisdiction lies with the court of the place of the debtor’s
habitual residence as well as that of the habitual residence of the garnishee. It does not have to
be the court hearing the main procedure. Article 99 CCP: the venue is at the court of the
defendant’s habitual residence.
2.4.1.2 No
2.4.1.3 See under 2.4.1.1.
2.4.1.4 The ‘voorzieningenrechter’ of the district court.
2.4.1.4.1: a single judge
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2.4.1.4.2: see 2.4.1.2.
2.4.2 What evidence must the creditor present when applying for a provisional measure?
2.4.2.1 A request for seizure does not require proof of the claim (see also questionnaire on
garnishment: 2.1.1.-2.1.3).
2.4.2.2 Sometimes, a fear of embezzlement has to be adduced.
2.4.2.3 See 2.3.3.
2.4.3 Defences available to the debtor in the application/proceedings:
2.4.3.1 In general there is no right to be heard and it will be an ex parte decision (see q.
garnishment: 2.5).
2.4.3.2 Proceedings are written: the judge will immediately give his written decision on the
written request.
2.4.3.3 Not in general. See questionnaire garnishment 2.5.
2.4.4 What standard of proof applies in the proceedings
The ‘voorzieningenrechter’ will reach a decision after a summary investigation based
on the information and documents provided by the applicant and the defendant.
2.4.4.1 See 2.4.4
2.4.4.2 See 2.4.4.
2.4.4.3 See 2.4.4
2.4.4.4 The court applies the lex fori.
2.5 Content and effect of the provisional measure
2.5.1 Is its content determined by legislation?
Yes, the effects of the conservatory arrest are civil and criminal. Criminal law
prohibits the disposition of the seized goods (Art. 198 Criminal Code). According to the Civil
Code any disposition of the seized goods is a tort (Art. 6:162 BW). Disposition by the
garnishee does not effect the rights of the garnishor (Art. 453a en 475h CPP).
2.5.2 Yes, each case is determined according to its own particularities
2.5.3 what is the content of the provisional measure?
2.5.3.1 Yes, p.m. blocks the debtor’s assets.
2.5.3.2 Yes, see under 2.5.1. The third party debtor (for instance the bank) is not allowed to
pay the creditor from the blocked accounts.
2.5.3.3 No, no custody allowed
2.5.3.4 No, the creditor does not obtain a lien.
2.5.3.4.1 Not applicable
2.5.3.4.2 not applicable
2.5.3.4.3 not applicable
2.5.5 In what form is the provisional measure drafted
As an order
2.5.6 No
2.5.7 There is no possibility of an appeal if the request is granted (Art. 700 ss 2 CCP).
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If the application is rejected the creditor may lodge an appeal and – subsequently – an appeal
in cassation.
2.5.8 Yes and no: It remains valid subject to the condition that the procedure on the merits -
if the procedure is not yet pending - will be entered within a specific period of time to be set
by the court and this must be at least 8 days. This period may be extended if necessary.
Extending the period within which the procedure on the merits has to be commenced will levy
the seizure.
2.6 Provisional measures and security.
2.6.1 No, in general the creditor does not have to offer security. But leave for garnishment
may be given subject to the condition that the creditor provides security for damages through
the garnishment. However, this is very unusual. According to Art. 705 ss 2 CCP the
‘voorzieningenrechter’ may levy the provisional seizure when it is lodged for a monetary
claim, when the security offered is for the same amount of money.
2.7 Execution / Enforcement of the protective measure
2.7.1 The bailiff is responsible for enforcement (see: q. garnishment no. 1)
2.7.2 As soon as the provisional seizure becomes executory, the bailiff follows the special
provisions for the execution of an executory seizure.
2.7.3 Provisional as well as executory garnishment includes an interdiction of payment
from the time of the service of the garnishment order. See: q. garnishment no. 5.1-5.2.
2.7.4 Describe the preconditions which must be presented for the enforcement of a
provisional measure:
2.7.4.1 Service of the attachment order on the debtor and the third party debtor (in
garnishment) together with the request.
2.7.4.2 If security is ordered, the creditor has to provide proof of payment.
2.7.4.3 None
2.7.5 Is the effect of the provisional measure subject to the execution of the order by the
applicant / a court within a set period of time? :No, unless the court decides otherwise.
2.7.5.1 No fixed period.
2.7.5.2 Not applicable
2.8 Provisional Measures and main procedures
2.8.1 Can main proceedings be required/initiated or ordered by:
2.8.1.1 No
2.8.1.2 Yes
2.8.2 Can the court in which the main proceedings are heard change or overrule the order?
Yes, the court in the procedure on the merits can levy the seizure, as well as the
‘voorzieningenrechter’ who issued the order in a kort geding procedure initiated by the
debtor. Article 705 CCP: to change the order is not an option.
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2.8.3 In general the seized items remain where they were when seized. In the case of Art.
709 CCP: upon the request of the applicant the seized goods can be retained by a receiver
(pendente lite) (gerechtelijke bewaarder) appointed by the ‘voorzieningenrechter’. After
levying the seizure the goods have to be returned.
2.8.4 Does the debtor have any further basis for claiming damages?
Art. 6:162 BW, the debtor may claim damages based on tortuous seizure.
2.9 Describe the relationship of interim proceedings to provisional enforcement.
2.9.1 The interim proceeding precedes the enforcement. Only after the provisional seizure
has become an executory seizure, is enforcement allowed. Provisional seizure is followed by a
procedure on the merits or a ‘kort geding’. If this procedure produces a title the provisional
seizure will become an executory one.
2.9.2 As already indicated the decision to grant an attachment order cannot be the subject of
an appeal (Art. 700 ss 2 CCP). Any appeal must be against the court decision on the merits. If
the decision is declared to be provisionally enforceable, it might be enforced in spite of the
right to appeal. No complementary function.
3 Tempory injunction (measures maintaining the status quo pending determination
of the issues in the main proceedings)
3.1 What temporary injunction does your national legal system provide?
The Kort geding is used in labour cases, in conflicts between landlord and tenant and
in immigration cases, in infringements of privacy or intrusions into one’s private life like
tortious press reports, or for obtaining an injunction forbidding the harassment of the formerspouse.
The kort geding against the government is also important. During the last 20 years the
kort geding procedure has also been used for monetary claims.
It is very much used in intellecual property cases. Due to the case law of the European Court
of Justice and Art. 50 ss 6 TRIPs treaty, Art. 260 CCP was implemented. This article provides
for a rule which applies when, after a seizure, the procedure on the merits is instigated in
particular when the procedure on the merits is a kort geding. According to the interpretation
of the European Court of Justice of 16 June 1998, C-53/96, NJ 1999, 240 Hermes/FHT the
‘kort geding’ is a provisioonal measure as meant in Art. 50 ss 6 TRIPs treaty.
3.2 The preconditions that need to be satsfied for obtaining a temporary injunction;
A provisional measure in kort geding with the ‘voorzieningenrechter’ may always be
awarded if the claim meets the following three conditions (Art. 254 CCP):
1. there is an urgent interest at stake
2. the interests of both parties have to be balanced
3. the balancing of interests justifies the decision in kort geding
The fact that the ‘voorzieningenrechter’ is formally competent to render a decision does not
imply that he will accept the claim or will decide in its favour. The nature of the kort geding
procedure implies that the case not only needs an urgent decision, but is also of such a kind
that it may be dealt with summarily, thus a simple case.
The condition of urgency implies the question whether waiting for a judgement in a procedure
on the merits may cause great or irreparable damage to the claimant. In general the court will
take into account the detriment which the claimant will suffer if he has to wait too long for a
judgement in a procedure on the merits. In monetary claims in kort geding the condition of
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urgency is in general not very stringent. If the monetary claim is not contested or is
reasonably not contestable the condition of urgency will be easily met. In proving urgency
claimant does not need to be in a state of financial need as a consequence of the debtor’s nonpayment.
The kort geding procedure is very informal. The title of the CCP which deals with the kort
geding has only 7 Articles. It is at the discretion of the ‘voorzieningenrechter’ how to direct
the procedure.
3.2.1 With regard to the claim that is to be secured:
3.2.1.1 Yes, when granting the claim, the ‘voorzieningenrechter’ will make a prognosis of the
possible decision which the court might deliver in the procedure on the merits. If the claim is
not yet due, this prognosis will be negative.
3.2.1.2 In special cases the claimant in kort geding may request an injunction against a
threatened wrong.
3.2.1.2 No, the kort geding judgement is the enforceable title itself.
3.2.2 With regard to the basis of the claim:
3.2.2.1 urgency: see under 3.2
3.2.2.2 Case law has determined that a kort geding may not be used solely to stop the
enforcement of a decision on the merits with which the claimant in kort geding does not
agree. Disagreement with a decision can only be expressed by lodging an appeal. The absence
of a remedy on appeal makes the decision enforceable. This enforceability may not be set
aside by a kort geding decision; the kort geding is not a quasi-appeal. That would be against
the closed system of remedies. (NJ 22-4-1983, NJ 1984, 145 en HR 27-1-1989, NJ 1989,
588).
3.2.2.3 see under 3.2
3.2.3 see under 3.2 Especially the interests of the parties will be weighed.
3.3 Which court has jurisdiction?
3.3.1 The ordinary rules for the court’s relative competence (venue) are applicable (Art. 99-
109 CCP). Supplementary jurisdiction is given to the ‘voorzieningenrechter’ of the place
‘where the immediate decision is required’. If, in a given case more than one court has
jurisdiction the claimant has the right to choose the venue. (HR 23-11-1917, NJ 1918, 6 W
10202). As a result of this rule it might be possible that a court in the Netherlands has
jurisdiction in a case in which, according to the ordinary rules, no court in the Netherlands is
competent . See Art. 24 EEC and Art 31 Brussel-I- Reg.
Rules of absolute competence do not apply. In principle the ‘voorzieningenrechter’ of the
district court may hear all kinds of claims.
Since 1-1-2002 a ‘kantonrechter’s kort geding’ has be created (Art. 254 ss 4 CCP) which
gives absolute competence to the kantonrechter to decide in kort geding. These articles do not
exclude the right to introduce the claim as a kort geding before the ‘voorzieningenrechter’ of
the district court.
It is not important to know which court will hear the procedure on the merits, because such a
procedure does not have to follow, and – which is even more important - does not follow in
most cases (90%). Parties in general are satisfied with the judgement given by the
‘voorzieningenrechter’ although the judgement is legally only a provisional one.
3.3.2 No
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3.3.3. See for the possibility of ‘forum shopping’ in kort geding: 3.3.1.
3.3.4 Who determines the application:
3.3.4.1 A single judge court. In general the judge is very experienced with good mediation
qualities. He is often very active during the oral proceedings.
3.3.4.2 The district court.
3.4 The proceedings as a means for achieving interim measures (application proceedings)
3.4.1 What evidence must the creditor present when applying for a tempory injunction?
3.4.1.1 In relation to the claim it is recommended that written evidence be adduced. Therefore
the parties have to clarify their position by documentary evidence added to their statements.
The evidence must be sufficiently clear for the judge to convince himself of the existence of
the claim during the oral session. Parties may not rely on witnesses to be heard, because the
judge is not bound to apply the ordinary rules for administering proof (Art. 149-207 CCP).
The procedure is dealt with in one oral session and usually the ‘voorzieningenrechter’ does
not have time to hear witnesses. But he may hear them, if he so whishes. The ‘rules’ of
procedure in kort geding are very informal.
3.4.1.2 Normally it suffices to state in the writ that there is urgency.
3.4.1.3 The writ has to be clear as to the facts. Article 111 CCP states the content of the writ
(dagvaarding). The new code of procedure which came into force on 1-1-2002 includes a
general ‘substantieringsplicht’ (a duty to substantiate the claim in the writ), which also applies
to the kort geding writ. The writ has to mention not only the formal data, but also the facts on
which the claim is based as well as the remedies the defendant might introduce. The
procedure aims not to confront the court with new facts during the pleadings.
3.4.2 Defences available to the debtor:
3.4.2.1 Does the court decide ex parte or is it an adversary procedure?
The kort geding is an adversarial procedure.
3.4.2.3 Oral procedure –one oral session.
3.4.2.4 Normally he is merely heard at the oral session
3.4.3 What standard of proof applies in the proceedings
As already mentioned in 3.4.1.1. the standard of proof is not very stringent , due to the
character of the kort geding procedure as a speedy and provisional measure.
3.5 Content and effect of the tempory injunctioin
3.5.1 Is its content determined by the legislation?
No, the ‘voorzieningenrechter’ of the district court decides on over the content of the
measure, taking into account the requested provisions and the circumstances. The decision is
often an injunction to do or not to do something in particular, but it may also consist of an
order for the prepayment of damages resulting from the non-performance of a contractual
obligation or from tortious behaviour, or it may consist of an order to provide an advance
payment in the case of a monetary obligation. He can even give an order the consequences of
which are in fact irreparable resulting in only a claim for damages if the court decides
otherwise in a procedure on the merits. The ‘voorzieningenrechter’ has wide discretion in
reaching a decision, but the guiding principle will be not to go beyond what might be
necessary or well-balanced in view of the (possible) decision in the procedure on the merits.
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However, he may order measures which are not available to the district court in a procedure
on the merits.
3.5.2 Yes, see at 3.5.1.
3.5.3 See, 3.5.1.
3.5.3.1 Yes, it can be requested.
3.5.3.2 Yes, it can be requested.
3.5.3.3 There are cases in kort geding where committal for non-compliance with a judicial
order may be requested, for instance in child kidnapping.
3.5.4 The form in which the temporary injunction is drafted is that of an ordinary
judgement: Art. 229-231 CCP.
3.5.5 Yes, but in accordance with the provisional character of the judgement, the reasons
might be less detailed compared to the judgement in the procedure on the merits.
3.5.6 Remedies for claimant and defendant are:
objection (verzet) (to a default judgement): Art. 143-148 CCP: within 4 weeks;
appeal (art. 339 ss 2 CCP):
within 4 weeks
cassation (Art. 402 ss 2 CCP):
within 8 weeks
3.5.7 No, in general there is no time-limit. Because of the urgency of the case it would be
strange not to execute the judgement as soon as possible. In many cases, after receiving the
judgement the defendant will voluntarily adhere to the judgement, and the claimant does not
need to commence the execution.
3.6 Temporary injunction and security
3.6.1 Especially in kort geding, as a rule security will be requested. The
‘voorzieningenrechter’ can ex officio declare the judgement to be provisionally enforceable
(Art. 258 CCP). For security on the provisional enforceability of the kort geding judgement
see the questionnaire on provisional enforceability.
3.6.2 Yes, in kort geding it is very usual to request security – not in the case of 2.6.2.
3.7 Execution/enforcement of the tempoary injunction
3.7.1 The bailiff is responsible for enforcement.
3.7.2 Yes.
3.7.3 Not applicable.
3.8 Temporary injunction and main proceedings:
Although the kort geding procedure is a provisional measure, in 95% of cases no
procedure on the merits will follow. Parties tend to accept the provisional measure as if it
were a final decision. The relation between the kort geding judgement and the judgement in
the procedure on the merits can be explained by case HR 16-11-1984, NJ 1985, 547, Ciba
Geigy/Voorbraak. A claimant in kort geding (Voorbraak) was ordered not to interfere with the
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patents of the other party under penalty of an ‘astreinte’. For four years he acted accordingly.
He did not appeal against the kort geding decision. After four years, however, he commenced
proceedings on the merits, which he won. As a result of the judgement on the merits the kort
geding decision lost its force as res judicata. The judgement on the merits is not retroactve, it
operates ex nunc. In the period of time between the decision in kort geding and the judgement
on the merits the first decision has to be adhered to. If not, the defendant would be liable for
non-compliance and would have to pay a financial penalty, which he has to pay independently
of the judgement on the merits.
The defendant who in such a case obeys the decision in kort geding will suffer damage. The
Hoge Raad decided that that party could claim damages. The counterpart who, under the
threat of executing the ‘astreinte’ forces the other party to obey the decision in kort geding,
will be acting in an unjustified manner if the decision on the merits shows that he has no right
to urge the other party not to act against the decision in kort geding. The reason behind this
rule is that a party who executes a kort geding decision is aware of the interim character of the
kort geding decision and of the only summary examination of the case by the
‘voorzieningenrechter’ of the district court. A similar problem arises with the transfer of
registered goods. As said the court decision ordering the transfer of registered goods or land
may be entered in the public register, which effects the transfer. If the court decision
registered is one taken by the ‘voorzieningenrechter’, the decision may be subject to
annulment by a judgment on the merits. The transfer of the registered goods or land will
thereby lose its force and is null and void, and the party who obtained ownership by the
registration of the decision, then loses this ownership by judgement.
4. Provisional measures allowing the satisfaction of the claim (interim
payment/performance)
4.1 Does your national law permit remedies for interim payments and interim performance
for the creditor?
Yes: kort geding see 3.1. In HR 29-3-1985 NJ 1986, 84 (M’Barek/Van der Vloodt) the Hoge
Raad accepted the adjudication in kort geding of a monetary claim if three conditions were
fulfilled. Despite the decision of the Hoge Raad, the ‘voorzieningenrechters’ (under the old
CCP they were called presidents of the distrct courts) of the different courts still have
different opinions as to the possibility to adjucate monetary claims in kort geding. Especially
the need for a speedy decision is often interpreted very differently, and in some courts it is
therefor a barrier to deciding in kort geding. There is no legal rule on monetary claims in kort
geding; there are only court rules which may be different in the 19 district courts. In my
opinion the adjucation of monetary claims in kort geding was inspired by the French
procedure of the référéprovision.
For interim performances for the creditor see: 2.2
4.2 To which constellation do these measures apply?
4.2.1 Claims for payments, yes.
4.2.2 See 2.2
4.3 The preconditions for a protective measure for satisfaction:
4.3.1 With regard to the claim that is to be secured:
4.3.2.1- 4.3.3.4: see: 3.3.2.1-3.3.3.4:
For monetary claims: see 3.2
In Amsterdam in 1987 the district court introduced new court rules on the kort geding,
allowing institutional creditors like social housing agencies and credit card companies to enter
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their - at first sight - incontestable claims in kort geding on a fixed session day, without
needing the normally required president’s permission beforehand. In this way the president is
able to hear over 40 cases in one hour. If the defendant enters an appearance, which seldom
occurs, only a few minutes are spent on an oral explanation (sometimes ending the case in a
referral to the regular court procedure). This special kind of kort geding is called the kort
geding for debt collection; to date, this has hardly been accepted in the other district courts
and if it is so accepted, then only very restrictively. It was told to me, only Amsterdam
nowadays facilitates the ‘incasso kort geding for debt collection’. The other districtcourts, like
Utrecht and Haarlem, are of the the opinion, the new procedural law in Netherlands gives the
opportunity to receive a title , (much) faster then in the past and therefore the kort geding does
not fulfill a purpose anymore. (Well, the praxis does not have this opinion). The introduction
of a monetary claim in kort geding is not barred by any provisional or conservatory
attachment to secure that claim.
4.4. Which court has jurisdiction:
4.4.1-4.4.4.2: see 3.3.1-3.3.4.2.
4.5 The proceedings to obtain the protective order for satisfaction:
4.5.1-4.5.3.3 see 3.4.1-3.4.3.3.
4.6 Content and effect of the provisional measure
4.6.1-4.6.8 see 3.5.1-3.5.8.
4.7 Provisional measures and security.
4.7.1-4.7.2 see 3.6.1-3.6.2.
4.8 Enforcement / execution order
4.8.1 The bailiff.
4.8.2 Yes
4.8.3 Forced execution by the bailiff, for instance executory attachment.
4.8.4 Preconditions to be presented for the execution/execution of a provisional measure:
4.8.4.1 Yes, Art. 430 ss 3 CCP requires the service of the judgement before starting the
execution.
4.8.4.2 When the defendant asks for security and the judge grants this, then the security has to
be paid first.
4.8.4.3 None.
4.8.5 Is the effect of the provisional measure subject to enforcement by the creditor within a
certain period of time?
No
4.9 Amendment of the provisional measure by the court having jurisdiction during the
main proceedings
See 3.8.
4.9.1 see 3.5.6.
4.9.1.2 Not applicable.
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4.9.2 Can the court hearing the main proceeding revoke or amend the order?
See 3.8.
4.9.3 Can court return the seized items…. Not applicable.
4.9.4 Do claims for damages incurred by the debtor exist?
Yes, see 3.8.
5 Practical information
5.1 Statistics 2000:
Kantonzaken : 255,000 cases (in total)
Monetary claims : 204,000 (80% are monetary claims in the procedure on the merits).
Monetary claims up to 5,000 Euro fall within the jurisdiction of the kanton section of the
district court.
District court : 42,000 cases (in total) civil section:
of which
: 11,200 kort geding.
district court : 30,800 procedures on the merits.
Monetary claims : 21,000 (almost 70% of the procedures on the merits are monetary
claims) .
The statistics do not specify how many kort geding procedures are monetary claims. But in
comparison with the results in my dissertation (1996) almost 20% are monetary claims (2,240
cases).
There is no statistical information on provisional seizure. It is very often used as an effective
means of pressure to induce the defendant to pay a monetary debt. A provisional attachment,
especially a provisional garnishment, e.g. on the monthly salary with the debtor’s employer or
on the debtor’s bank account, can be very annoying for the debtor. Often the debtor will pay
within a short period of time; if so, the attachment is levied and no procedure on the merits
will follow.
5.2 After the repeal of the order for payment procedure in the Netherlands in 1991
creditors can only legally pursue their monetary claims through the ordinary court procedure
on the merits. Monetary debt collection has been, since that time, cumbersome, uncertain and
expensive. This has resulted in local courts experimenting with simple and speedy special
court procedures for undefended monetary claims, like the incasso kort geding in Amsterdam.
As already indicated the regular kort geding for money debts (debts that might be contested)
may be instituted in all Dutch courts, but their decisions may differ considerably.
6 Provisional measures and European Civil procedural law
6.1 Jurisdiction for cross-border provisional measures
6.1.1 What domestic jurisdictional reasons apply to provisional measures under Art. 31
Vo/44/01.
6.1.1.1 Measures securing future enforcement:
As already mentioned in the q. provisional enforcement (no. 7) claimants can in all
circumstances request protective measures (Art. 700 CCP: protective seizure). The procedure
is an ex parte procedure and the court can decide after a summary investigation. The request
must indicate the kind of protective seizure requested, while the claim which lies at the heart
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of the request must be sufficiently described and the grounds therefor must be provided. For a
protective seizure under art. 39 of the Brussels I Treaty the court’s permission was not needed
(see Co J 3-10-1885, Capelloni-Pelkmans).
6.1.1.2 Measures maintaining the status quo:
If the Dutch courts have jurisdiction according to art. 1-14 CCP, the ‘voorzieningenrechter’
has jurisdiction too. If the Brussels I regulation is applicable and the Dutch courts have
jurisdiction based on Art. 2 and 5-23, the ‘voorzieningenrechter’ in kort geding has
jurisdiction too. If the Dutch courts do not have jurisdiction based on Art. 2 and 5-23 Brussels
I Reg., the ‘voorzieningenrechter’ in kort geding may nevertheless have jurisdiction according
to art. 31, if sufficient points of attachment with the Netherlands exist. His jurisdiction is in
that case based on art. 31 Reg/44/01, because the kort geding procedure is a provisional
measure within the meaning of Art. 31 Brussels I Vo. When there are insufficient points of
attachment the voorzieningenrechter may refuse jurisdiction. In kort geding the
‘voorzieningenrechter’ has to decide ex officio whether he has jurisdiction and has to explain
his decision. Not justifying his decision on jurisdiction may complicate the recognition and
enforcement of his decision in other member states. In Brusssels I Treaty and Reg. cases his
control of jurisdiction has to be done ex officio without one of the parties requesting it.
6.1.1.3 In interim payments, see under 6.1.1.2. In kort geding we follow the rules laid down
in the Van Uden/Deco Line case: thus the claimant has to offer security.
6.2 The assistance of foreign (on the merits) main proceedings by domestic courts
6.2.1 Yes, Hof ‘s Gravenhage 11-10-1994, KG 1994, 449, NIPR 1995, 441; Pres. Rechtbank
Arnhem and Hof Arnhem 10-1-1995, NIPR 1996, 109; HR 9-2-2001, NJ 2001, 290
(Cogenius GmbH/Schothorst).
6.2.2 ---------
6.2.3 Practical problems are not known, there are no problems in requesting for protective
measures (seizure) with or without a judgement on the merits or a procedure on the merits. A
kort geding procedure can also be adjucated as mentioned in 6.1.1.2 and 6.1.1.3.
6.2.4 Provisional seizure: ex parte and kort geding after hearing the parties.
6.2.5 Mareva injunction: no. The Bank garnishment actually functions like a Mareva
injunction (see q. garnishment)
6.3 Do particular rules apply in relation to provisional measures affecting assets located
abroad? No. But in intellectual property cases decisions of the kort geding
‘voorzieningenrechter’ do exist in which a cross-border jurisdiction is accepted. Such
decisions have to be accepted outside the Netherlands (HR 24-11-1989, NJ 1992, 404,
Interlas/Lincoln) and Hof ‘s Gravenhage 23-4-1998 (Expandable Grafts Texas/ Boston
Scientific Ned, based on art. 6 (1) and 24 Brussel I Treaty).
6.3.1 Not applicable. But in kort geding urgency is the most important precondition.
6.3.2 Serving a writ in a kort geding procedure
6.3.3 See: 6.1.1.2.
6.3.4 Yes.
6.3.5 Yes, the ‘voorzieningenrechter’ considers two extra conditions:1) the payment of
security and 2) the decision may only concern some specific actual or future property of the
defendant. In kort geding for money claims the ‘voorzieningenrechter’ always checks whether
these two conditions are fulfilled (HR 9-2-2001, NJ 2001, 290, Cogenius/Schothorst). If the
court fails to do so, problems may arise in the enforcement of the decision in another member
state.
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6.4 Are provisional measures available in your country if a foreign provisional decision is
recognized.
6.4.1.1 Provisional attachment is always possible. But as soon as the exequatur is given,
provisional attachment becomes an executory attachment. There is no case law on this matter.
6.4.1.2 No.
6.4.2 Additional conditions which apply to the recognition of interim payments do not exist,
with the exception of the Van Uden conditions.
6.4.3 Since the vanUden decision the ‘voorzieningenrechter’ observes the two conditions
determined by that decision. The procedure on the merits which follow (Art. 700 ss 3 CCP)
might be a procedure in a foreign country.
7 Policy recommendation
7.1 With regard to the obtaining of such measures
7.1.1 Before answering this question for the situation in the Netherlands, a distinction has to
be made between the provisional seizure measures and the kort geding procedure. In my
opinion the regulation for provisional seizure measures is much more important in the
European context.
In the Netherlands special formulas are already in use to obtain provisional attachment orders
(these have been sent to you together with the questionnaire on garnisment. They have to be
completed by a competent lawyer.
7.1.2 The European Judicial Network already contains information on provisional measures.
7.2 With regard to recognition of the order
7.2.1 Pursue the recognition of provisional measures ex parte?
As shown above, the provisional attachment order is the only decision which is
awarded ex parte (kort geding is a contradictory procedure). In the questionnaire on
garnishment I explained that the conservatory attachment is not recognized as such. Only after
a decision in a procedure on the merits has been given, does the provisional attachment
become an executory one and execution can take place on the attached goods, for instance by
selling them.
7.2.2 I have the impression that the recognition of an ex parte decision itself is adequate, but
before starting the execution the claimant must be sure that the debtor’s rights are protected.
The guarantees related to the serving of the order on the debtor have to be respected.
7.2.2.1 The Dutch provisional attachment measure does not require any examination, because
the decision in the procedure on the merits will follow in all cases.
7.2.2.2 Yes, the court may order security by the creditor (this is now possible in the
Netherlands, although it is not often used). But some provisional attachment orders, like the
protective seizure for the delivery of goods (Art. 730-737 CCP), do not aim to secure a
monetary debt; in such cases a security measure is not appropiate.
7.2.2.3 As mentioned above, art. 700 ss 2 CCP does not allow an appeal against a positive
order. The idea behind this rule is that it would be undesirable for the validity of the
attachment during the period of the appeal or cassation to depend on a still pending higher
decision.
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7.2.2.4 Compensation by the creditor (strict liability) would be an improvement. In the
Netherlands this already exists. Considering the amount of attachments there are, generally
speaking, not very many problems. The debtor may always request the levying of the
attachment during the kort geding procedure (art. 705 CCP). The levying may be requested if
the attachtment is not reasonable.
7.2.3 Cross-borderservice
7.2.3.1 The obligation to serve the relevant order according to Art. 14 or 15 Reg. would be a
good and even a necessary provision. In the Netherlands some attachment orders like the
attachment of immovable property have to be served on the debtor within a few days. If the
debtor lives abroad this is currently a major problem, because in following the standard
method for serving this may still take three months. For that reason I wrote the article on
serving the writ by post in some special cases. Our Minister of Justice is currently considering
the possibilities of serving by post.
7.2.3.2 The service of documents in accordance with art. 11, especially with sections c and d,
is the most appropriate. It is unclear whether sections a and b mean service in accordance with
the Regulation. The service of documents by the bailiff raises its own problems. In the larger
cities in the Netherlands bailiffs succeed in serving on the addressee in just 30% of cases. In
the other cases they merely place the document (order etc.) in an envelope and than put the
envelope through the letter-box. This will cost approximately 70 Euro. If they try to serve in
person on a second or third occasion the costs may raise to 200 Euro or more.
Research should be carried out on developing/elaborating a European postal service, with
special forms and clear rules e.g. as to the language, a procedure in which the creditor or his
lawyer will be informed about the service and in which it is determined what kind of proof the
court, when starting the procedure, may require as to the receipt of the document by the
addressee.
7.2.4 How should the debtor be informed?
7.2.4.1 Yes, standard forms will be satisfactory if they are not too complicated. People do not
use complicated forms, and can easily use them incorrectly (for instance with regard to
language requirements). The drafting of such standard forms will certainly create a lot of
problems. But with new countries joining the E.U. the use of forms will be increasingly
necessary.
7.2.4.2 See under 7.2.3.2
7.3 The introduction of a European freezing order is worth being considered. The major
problem may be the transparency of the assets abroad. How does the creditor receive
information as to which assets the debtor has and where they are located. In the Netherlands
the bailiff may sometimes be able to help the creditor or the creditor may be able to obtain
information through a private information office (for the problems which may arise here, see
the questionnaire on the transparency of the assets).
7.3.1 The debtor could be protected by introducing a rule like the one in the Dutch
provisional attachment order, in which, after the ‘freezing’order has been served on the
debtor, the attachment may be levyed. The levying is ordered by the judge if the formalities
are not respected, if the claim – after a provisional examination – is seamingly unjustified, or
if the freezing order is for a monetary claim and the claimant pays sufficient security.
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