Exequatur proceedings

The basic principle

General

When a court grants your claim, or your client’s claim, generally the desired result has still to be achieved. After all, except perhaps in the case of an application for a declaration of law, one does not generally commence legal proceedings with the object of receiving a nice judgment from the District Court, but in order to get someone else to do something, for example to pay a sum of money. In most cases, proceedings are conducted to win the prize, not because the players enjoy the game. If the other side does not comply with the judgment voluntarily, enforcement of the judgment will be required to ensure the prize is received in the end.

To be able to enforce a judgment in the Netherlands, the judgment must be accompanied by an enforcement order valid in the Netherlands. With a few exceptions (discussed below), enforcement orders issued by foreign courts cannot as a matter of principle be enforced in the Netherlands. To enforce a foreign judgment in the Netherlands it is first necessary, except in those few exceptional cases, to obtain leave from a Dutch court. Such proceedings to obtain leave are known as exequatur proceedings.

Exequatur procedure in general

If provided for in Dutch legislation or agreed by the Dutch government in a treaty with one or more other countries, a Dutch court may grant leave for a judgment issued by the court of a foreign country to be enforced in the Netherlands (Article 985 onwards of the Dutch Code of Civil Procedure).

These exequatur proceedings do not involve a new examination of the case. The Dutch court does not repeat the proceedings conducted in the foreign country. The Dutch court restricts its review to specific matters including (1) whether there is a proper basis under either statute or treaty law for enforcement of the foreign judgment in the Netherlands and (2) whether the judgment can be enforced in the country of origin.

The District Court issues its decision with the appropriate urgency, but not before the party against whom enforcement is requested has been given the opportunity to express his views regarding the leave requested.

Exequatur procedure for “European” judgments

In Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters the European Union provided that judgments issued within the European Union must be recognised and must be capable of being enforced in the Netherlands.

Recognition occurs without any further review (on the merits or otherwise). Enforcement requires the leave of a local court. The main issue that this court checks is whether the judgment can be executed in the country of issue. This is checked using a form referred to in Articles 54 and 58 of the relevant Regulation, which is attached to the Regulation as Annex V and is required to be supplied by the court of the country of issue.

After receiving an engrossment of the foreign judgment with the original form in Annex V to the European Regulation attached and carrying out the check described above, the Dutch court issues an enforcement order valid in the Netherlands for the foreign judgment, with the result that it is possible to enforce the foreign judgment in the Netherlands. The other side is not given a hearing by the court in these proceedings.

The exceptions to the basic principle

General

Within the European Union the aim is to reduce impediments to trade wherever possible. A large number of decisions are taken every day with this purpose. Three of those decisions have created exceptions to the basic principle that a judgment issued by a foreign court cannot be enforced in the Netherlands without leave from a Dutch court.

The European Enforcement Order for uncontested pecuniary claims

If the defendant has not disputed a claim in proceedings in a foreign Member State, the court of that Member State may certify a judgment as a European Enforcement Order under Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims.

It is a condition for this certification that the claim is uncontested. Situations in which a claim is “uncontested” within the meaning of this Regulation include when the claim is admitted, if it is not denied or if the defendant fails to appear in the proceedings, after having been properly called to appear.

If a court certifies its judgment as a European Enforcement Order, the judgment can then be enforced throughout the European Union without any further review by local courts and without any requirement for further leave from a court.

If the defendant has not appeared in the matter and he entered into the agreement in the capacity of a natural person for a purpose that cannot be described as business or professional use, a judgment may only be certified as a European Enforcement Order by a court of the Member State where the debtor has his domicile.

As this Regulation was created in order to make it possible for a judgment of a court in one of the Member States of the EU to be enforced immediately in all Member States of the EU (without further leave from other courts in other Member States), courts regularly refuse to certify a judgment as a European Enforcement Order if (at the time of the judgment) there is no European connection. In many cases it is assumed that there is no connection if both parties to the proceedings are domiciled/established in the same Member State and the assets from which the claim may be recovered are also located in the same Member State. If a European connection arises after the judgment has been issued, for example because the debtor moves to a different Member State or transfers his assets (or part of his assets) elsewhere in the European Union, it is possible to apply to the court for certification of its earlier judgment as a European Enforcement Order at this stage.

If you disagree with the judgment, whether you will be able to appeal and, if so, what action you should take depends on the usual civil procedural law of the Member State in which the court is situated. It is not possible to make an appeal on the merits against the issue of proof of certification as a European Enforcement Order. It may however be possible in some circumstances to make an application to suspend or restrict its implementation.

European order for payment procedure

Under Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure a court may issue a European order for payment for uncontested pecuniary claims. The European Union created this procedure in order to make it easier to collect liquid pecuniary claims, where the amount of the claim is a definite sum and the claim is payable on demand at the time when the application for a European order for payment is submitted.

The procedure is conducted in writing throughout. Initiation and conclusion of the procedure takes place using pre-approved forms attached as annexes to the Regulation. If the defendant puts forward a defence to the claim, the procedure is automatically continued under the usual civil procedural law of the Member State where the court is located (so the procedure under the European Regulation ceases to be followed), unless the claimant has indicated in advance (when issuing the case) that he does not wish to continue the case if this occurs. If the claimant has given such indication then the procedure is automatically terminated by the submission of a defence.

The issue of which court is competent to issue a European order for payment is regulated by Regulation (EC) no. 44/2001. However, if the claim relates to an agreement entered into by a natural person not acting in a business or professional capacity (i.e. a consumer) and the consumer is the defendant, only the courts of the Member State where the defendant has his domicile are competent to issue a European order for payment.

This procedure can only be used for cross-border cases. In this Regulation, the term cross-border cases refers to cases where at least one of the parties has its domicile or usual place of residence in a Member State other than the Member State in which the court receiving the application is located.

The existence of this European procedure does not prevent claimants from conducting the usual national procedures (such as summary proceedings or full proceedings).

The correctness of the European order for payment may not be reviewed in the Member State where enforcement takes place. However, the local court may refuse to implement the European order for payment if the relevant sum has already been paid or an earlier decision has been issued in a dispute between the same parties concerning the same subject and having the same cause and the earlier decision or order satisfies the conditions for recognition in the Member State where enforcement is sought and this inconsistency could not have been put forward as a defence in the court proceedings in the originating Member State.

No appeal may be submitted against a European order for payment. However, it is possible to apply to the competent court of the originating Member State, following the issue of the European order for payment, for reconsideration of the decision if the person against whom the order is made was not, for reasons that are not his fault, aware at the relevant time of the intention to issue a European order for payment.

European small claims procedure

Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure was introduced for the collection of small pecuniary claims. This procedure can be conducted regardless of whether the claim is contested.

The Regulation applies to civil and commercial cases, with the exception of certain specified areas of law including landlord and tenant law relating to real estate and employment law, where the value of the claim, excluding any interest, costs and expenses, does not exceed €2,000 at the time when the claim form is received by the competent court.

The procedure is in principle conducted in writing, using pre-approved forms attached as annexes to the Regulation, although in the course of the proceedings the court may decide to hold an oral hearing, which may also take place using video conferencing or other forms of communication technology.

The Member States have discretion to determine whether to provide an option to appeal in the context of the European small claims procedure. The Dutch government has decided not to offer this option. If a Member State does allow for appeals against such a judgment, the submission of an appeal does not suspend enforcement of the decision.