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

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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