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

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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. 12
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. 13
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