The Netherlands is a trading and commerce nation. The Dutch do business all over the world, and therefore also get involved in lawsuits or arbitration abroad. If such proceedings result in a judgment against a company in the Netherlands, the questions arises: how to have this judgment recognized and, subsequently, enforced in the Netherlands? In the Netherlands, judgments of a foreign court or arbitration tribunal cannot be enforced directly, except on the basis of either a treaty or EU law. If neither of these requirements has been met, enforcement should be done by initiating new proceedings before a Dutch court. The court may take into consideration that the parties have already litigated the same matter before, and apply only a test of reasonableness.
In matters of commercial litigation, the most important enforcement and recognition treaty is the Lugano Convention. Judgments rendered by courts in other EU member states (except Denmark – for which, however, generally speaking the same rules may apply in most cases) are recognized under the EU Execution Regulation (EU council regulation number no. 44/2001, also called “EEX Regulation”) that is based on the Lugano Convention. For the purposes of the EEX Regulation and the Lugano Convention, a judgment is: any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.
On the basis of these instruments, judgments given in all EU Member States, Iceland, Norway and Switzerland are enforceable in the Netherlands with leave granted by a district court. The applicant must provide the court with a certified copy of the judgment, and a certificate of the court of origin, identifying the court and the parties to the judgment. This application can be filed on behalf of the claimant by a Dutch attorney. Recognition proceedings under the Lugano Convention and the EEX Regulation are generally similar. The preliminary relief judge will not look into the (limited) grounds on which an application for enforcement can be denied, but only tests if all formalities have been met. The court only looks into these grounds if the party against whom the judgment is given appeals the declaration of enforceability. The court is not allowed to review the case on the merits.
Beside the proceedings under the EEX Regulation and the Lugano Convention, some alternative (EU) procedures to obtain the right to enforcement all over the EU have been introduced over the past years.
European Enforcement Order (EEO)
Where the EEX Regulation and the Lugano Convention allow any local court to declare a foreign judgment enforceable, EU Regulation 805/2004 (regarding the European Enforcement Order – the “EEO Regulation”) (applicable in all EU Member States except Denmark), offers the possibility to have a judgment certified as a “European enforcement order” (“EEO”) in the Member State of origin. An EEO is recognized and can be enforced in any other participating Member State without a declaration of enforceability being necessary. A judgment can only be certified as EEO if the claim was “uncontested” as stipulated in the EEO Regulation, and if the court proceedings in the Member State of origin have met some requirements (e.g., personal service of the writ may be required).
European Payment Order (EPO)
The EU Regulation 1896/2006 (regarding the European order for payment – the “EPO Regulation”) applies in all Member States except Denmark, and even goes one step further. The EPO Regulation was designed for uncontested monetary claims, and offers a uniform and low profile procedure. Where the EEO aims to offer a EU-wide right to enforcement for all judgments in undisputed monetary claims in the EU (which judgments may come from a variety of legal proceedings), the EPO Regulation creates uniform debt collection proceedings. Proceedings to obtain an EPO start with the claimant filing an application with the competent court (i.e. the court that has international jurisdiction and that is appointed as the competent national court to handle applications for EPOs). In The Netherlands, the designated competent court is the District Court of The Hague. If all formal requirements have been met, the court will issue a European Payment Order (EPO), and will have it served on the defendant in accordance with the Regulation. The defendant may then oppose the order within 30 days. If the defendant opposes the EPO, the proceedings then continue as ordinary civil proceedings before the competent court. If the defendant does not file a statement of opposition, the EPO is enforceable in all Member States without any prior recognition or enforcement proceedings.
European Small Claims Procedure
The EU Regulation 861/2007 (regarding the European Small Claims Procedure) also applies in all EU Member States except Denmark. It creates a uniform procedure in all Member States for small claims. It creates uniform proceedings in the participating Member States in cases (1) with claims with a value not exceeding € 2,000 and (2) where at least one of the parties has its domicile in a Member State other than the Member State addressed. The proceedings start with filing an application with the competent court. The court will have the application served on the defendant, which must file a written statement of defence within 30 days. A judgment rendered in a Member State in the European Small Claims Procedure is to be recognized and enforced in another Member Sate without a declaration of enforceability being required, and without any scope for opposing its recognition. Judgments in a European Small Claims Procedure may be lodged in accordance with the rules for civil proceedings in the Member State where the judgment was rendered.
Both Dutch and international arbitral awards cannot be enforced directly in the Netherlands. Dutch arbitral awards are relatively easy to enforce by way of a leave granted by a preliminary relief judge; international arbitral awards can only be recognized on the basis of an applicable treaty. The most important treaty is the New York Convention. A request to have an international arbitral award recognized and enforceable must be filed with the court of the place where the party against whom enforcement is sought is domiciled, and in the Netherlands must be filed by a Dutch attorney.
AMS, based in Amsterdam, the Netherlands, is conveniently located near Schiphol Airport (10 minutes by car or train). Our team of litigation lawyers provides legal services in the Netherlands for clients around the world and has in-depth advisory and litigating experience acting on behalf of Dutch and international corporates and private individuals. We have in-depth experience in successfully acting for clients in international litigation and in all related cross-border matters, including jurisdiction, and recognition and enforcement of foreign judgments and international arbitral awards.