Under Dutch law, enforcement of foreign judgements is only possible where a convention between the Netherlands and the foreign country provides for it or if the judgement was rendered by a court in a Member State of the EU. Otherwise, the claimant must relitigate his case in the Netherlands in order to obtain a binding and enforceable judgement. The present article creates an overview of the legal procedure of the recognition and enforcement of a judgement rendered in an EU Member State.
1. Which judgement can be enforced?
The recognition and enforcement procedure might be different on the basis of the legal dispute between the parties. The present article focuses solely on judgements rendered in civil and commercial cases.
The recognition discussed here does not cover (i) revenue, customs or administrative matters or the liability of state actors for their acts or omissions in the exercise of state authority; (ii) arbitration; (iii) social security; (iv) bankruptcy and other proceedings relating to the winding up of insolvent companies; (v) status or legal capacity of natural persons; and (vi) rights in property arising out of a matrimonial relationship.
Automatic recognition applies to any judgement given by a court or tribunal of an EU Member State, regardless how the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court. Provisionals (including positive measures as well) also fall under the scope of judgements unless they were ordered without summoning the defendant to appear and they were not served on the defendant prior to enforcement either.
2. How to enforce the judgement in the Netherlands
As the judgements rendered in an EU Member State are automatically recognized and enforceable in the Netherlands, no exequatur procedure, legalization or other formality (including the provision of security or deposit) is required. The person who wishes to enforce a judgement must submit the following to a Dutch bailiff: (i) an authentic copy of the judgement; (ii) a certificate given by the court of origin of the enforceability and the content of the judgement (the 'certificate'); and (iii) the translation or transliteration of the certificate if it is required by the bailiff. In case of a judgement given in another Member State ordering a provisional, including a protective, measure, must appear from the certificate that the court had jurisdiction as to the substance of the matter and where the measure was ordered without the defendant being summoned to appear, proof of service of the judgement.
Before the enforcement measures may take place, the requesting party must serve the certificate on the person against whom the enforcement is sought, together with a copy of the judgement (but not if that person has already been provided with the judgement).
In case the judgement contains a measure or an order which is not known under Dutch law, that measure or order will be adapted to a measure or an order which is known in the Netherlands, has the equivalent effects and pursues similar aims and interests.
3. How to challenge the enforcement of the judgement
Since the recognition and the enforcement of judgements rendered in a Member State is automatic, objections can only be raised in the enforcement phase. Whilst any interested party can can launch a procedure in order to challenge the judgement's recognition, only the person against whom enforcement is sought can dispute the judgement's enforceability.
The person against whom the enforcement was sought has one month from the receipt of the certificate if he is domiciled in a Member State, whereas the defendant domiciled in a third country has two months to lodge an appeal and challenge the recognition or enforcement of the judgement. The procedure must be initiated before the district court where the person who sought the enforcement is domiciled or where the judgement will be enforced.
On the basis of the application for the refusal of the enforcement the court can: (i) suspend wholly or partly the enforcement proceedings; (ii) demand sufficient security in order not to suspend the enforcement; (iii) limit the enforcement proceeding to protective measures.
In his application, the person against whom enforcement was sought can rely on any of the following legal basis for refusal of the enforcement:
- the recognition or enforcement is manifestly contrary to the public order;
- the judgement was given in default of appearance and the defendant was not served with the document which instituted the proceedings or with any other document in sufficient time and in a way that would have enabled him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgement when it was possible for him to do so;
- the judgement is irreconcilable with an earlier judgement given in a dispute between the same parties in Netherlands;
- the judgement is irreconcilable with an earlier judgement given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgement fulfils the conditions necessary for its recognition in the Netherlands; or
- if the judgement conflicts with some special (protective) jurisdiction rules laid down in connection with insurance, consumer contracts, individual contracts of employment or with the exclusive jurisdiction rules prescribed in the 1215/2015 EU Regulation.
The court must interpret these legal grounds strictly. For instance, in the case of public order, the court can refuse the enforcement if it constituted a violation of fundamental human rights or of the fundamental principles of the European Union, but a mere misinterpretation or misapplication of the law in itself cannot serve as a proper legal basis for the refusal.
4. European Enforcement Order
In order to enforce an EU judgement in the Netherlands, the claimant could also request from the court of origin to certify the judgement as an European Enforcement Order (the 'EEO') and consequently to issue an EEO certificate as an alternative to the previously described procedure. While the EEO certificate could be only requested in the same civil and commercial cases as the as the ones that fall under the scope of the 1215/2015 EU Regulation, the EEO has the following advantages:
i. the EEO can be recognized and enforced without the need for a declaration of enforceability and without any possibility of opposing its recognition;
ii. the enforcement of an EEO can be refused only if it is irreconcilable with an earlier judgement given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgement fulfils the conditions necessary for its recognition in the Netherlands and that the irreconcilability was not and could not have been raised as an objection before the court of origin; and
iii. for the enforcement of EEO the creditor only has to submit to the Dutch bailiff an authentic copy of the judgement, a copy of EEO certificate and transcription of EEO certificate.
On the other hand, an EEO certificate can be issued only in the case of uncontested claims and when both the judgement and the underlying procedure meet certain requirements laid down in the 805/2004 EU Regulation.