Recognition and Enforcement of a UK Judgment in The Netherlands
How is a UK judgment recognized and enforced in The Netherlands? In The Netherlands, judgments of a UK court or a UK arbitration tribunal can be enforced directly. Initiating intermediary proceedings on the merits in The Netherlands is not required. EU Execution regulation (EEX). Judgments given by courts in the UK used to be recognized in The Netherlands jurisdiction under Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in civil and commercial Matters, which governs the jurisdiction of courts in civil and commercial matters. But that has changed because of Brexit.
Post Brexit Enforcement of a UK judgment
A UK judgment is to be recognised without special proceedings in The Netherlands, unless the recognition is contested. Th epost Brexit situation is this: The Hague Convention on Choice of Court Agreements could apply to the enforcement. Dutch law offers a simplified procedure for recognition and enforcement.In case the Hague Convention is not applicable, and the judgment concerns an order for monetary payment, the judgment can be enforced on the basis of the 1967 UK-Netherlands bilateral treaty on recognition and enforcement. In a simplified procedure the judgment can be recognized and enforced.
A declaration that a UK judgment is enforceable is to be issued by the Dutch courts following purely formal checks of the documents supplied.
The regulation lists grounds for non-enforcement of a judgment. However, the Dutch courts are not to raise these of their own motion. The regulation does not cover revenue, customs or administrative matters. Neither does it apply to:
- the status or legal capacity of natural persons
- matrimonial matters
- wills and succession
- bankruptcy
- social security
- arbitration.
Enforcing a UK Judgment in The Netherlands
Judgments given in the UK are enforceable in The Netherlands with leave granted by a District Court in The Netherlands.
In applying for leave to enforce a UK judment, the applicant must provide the Dutch 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.The application to recognize a UK judgment can be filed on behalf of the claimant by the Dutch collection attorneys of Blenheim, a Dutch law firm in Amsterdam.
European Enforcement Order for uncontested Claims in The Netherlands (EEO)
The 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 created an enforcement order for claims which are uncontested by the debtor.
The European enforcement order is a certificate which enables judgments, court settlements and authentic instruments on uncontested claims to be recognised and enforced automatically in another Member State, without any intermediate proceedings. For the UK this is no longer apllicable
The Regulation applies in civil and commercial matters. It does not, cover revenue, customs or administrative matters.
A claim shall be regarded as uncontested if:
- the debtor has expressly agreed to it by admission or by means of a settlement which has been approved by a court or concluded before a court in the course of proceedings, or
- the debtor has never objected to it in the course of the court proceedings, or
- the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, or
- the debtor has expressly agreed to it in an authentic instrument.Enforcement of a European Enforcement Order in The Netherlands
If a European Enforcement Order is enforced in The Netherlands (as “Member State of enforcement”), Dutch law applies. The UK creditor must supply the authorities responsible for enforcement with:
- a copy of the judgment
- a copy of the European enforcement order certificate
- if necessary, a transcription of the European enforcement order certificate or a translation thereof into the Dutch language.No security, bond or deposit can be required of UK creditors on the ground either that they are foreign nationals or are not domiciled or resident in the Dutch jurisdiction (in the “Member State of enforcement”).
The competent Dutch court may, subject to certain conditions, refuse to enforce a UK judgment if it is irreconcilable with an earlier judgment given in another country (including The Netherlands). In certain cases, it can also stay or limit enforcement in The Netherlands.
European Order for Payment against a Dutch debtor (EPO)
The Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 created a European order for payment procedure, which may under certain condition also be used against a dewbtor in The Netherlands. This EU Regulation applies in all EU Member States (except Denmark). This is no longer apllicable for UK parties.
The Regulation established a European procedure for orders for payment.
The procedure simplifies, speeds up and reduces the costs of litigation in international cases with pecuniary claims that are not contested.
The Regulation lays down minimum standards, compliance with which renders unnecessary any intermediate proceedings in The Netherlands, prior to recognition and enforcement.
Application of the procedure in civil and commercial matters
The European Order for Payment applies to civil and commercial matters in international matter, whatever the nature of the court or tribunal.
A “cross-border case” is one in which at least one of the parties is domiciled or habitually resident in an EU country other than the country of the court hearing the action.
The regulation applies to all EU countries, except Denmark.
The procedure does not extend to revenue, customs or administrative matters or the liability of a state for acts and omissions in the exercise of state authority (“acta iure imperii“).
The following are also excluded:
- matrimonial property regimes;
- bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;
- social security;
- claims arising from non-contractual obligations, unless they have been the subject of an agreement between the parties or there has been an admission of debt or they relate to liquidated debts arising from joint ownership of property.Applying for a European Order for Payment
The EPO Regulation includes a standard form to be used to apply for a European Order for Payment. A pecuniary claim must be for a specific sum that has fallen due at the time when the application for a European Order for Payment is submitted.
The jurisdiction of courts is decided using the appropriate EU legislation, especially Regulation (EC) No 44/2001. If a claim relates to a contract concluded by a consumer for a purpose which can be regarded as being outside his trade or profession, and if the defendant is the consumer, only the courts in the EU country in which the defendant is domiciled have jurisdiction.
The court to which an application for a European order for payment has been made considers whether the applicability conditions have been met (the cross-border nature of the case in civil and commercial matters, the jurisdiction of the court in question, etc.) as soon as possible, and examines the well-foundedness of the claim.
If the application form is not complete, the court gives the claimant an opportunity to complete or rectify the application by a certain date, unless the claim is clearly unfounded or the application inadmissible. Annex II of the regulation contains a form for this purpose (form B).
If the requirements are met for only part of the claim, the court may propose that application be amended. Annex III of the regulation contains a form for this purpose (form C). The claimant is asked to accept or refuse the proposed European order for payment for the amount specified by the court within a certain timescale. Claimants must be informed of the consequences of their decision. They are to reply by returning the standard form.
If the claimant accepts the court’s proposal, the court issues a European order for payment for the part of the claim accepted by the claimant. The consequences with respect to the remaining part of the initial claim are governed by national law. If the claimant fails to reply within the time limit specified by the court or refuses the court’s proposal, the court rejects the application for a European order for payment in its entirety.
The court informs the applicant of the reasons for which the claim has been rejected using form D (Annex IV). There is no right of appeal if an application is rejected. The rejection of an application does not, however, prevent a claimant from pursuing a claim by means of a new application for a European order for payment or using any other procedure available under the law of an EU country.
Issuing a European Order for Payment
If the conditions for applying for a European order for payment are met, the court issues the order as soon as possible and normally within 30 days of the lodging of the application. The 30-day period does not include the time taken by the claimant to complete, rectify or amend his or her application.
A European order for payment is issued solely on the basis of the information provided by the claimant and is not verified by the court. The order becomes enforceable unless the defendant lodges a statement of opposition with the court of origin.
The regulation abolishes the exequatur, i.e. a European order for payment is recognised and enforced in the other EU countries without the need for a declaration of enforceability and without any possibility of opposing its recognition. Enforcement procedures are governed by the national law of the EU country in which the enforcement of the European order for payment is requested.
Serving a European order for payment on a defendant
A European order for payment is served on a defendant in accordance with the national law of the state in which service is to be effected. The regulation sets out minimum procedural standards regarding service either with or without proof of receipt by the defendant.
Service with proof of receipt:
- personal service: the defendant signs an acknowledgement of receipt, including the date of receipt;
- personal service: the competent person who effected the service signs a duly dated document stating that the defendant has received the document or refused to receive it without any legal justification;
- the defendant signs and returns a duly dated acknowledgement of receipt when the European order for payment is received by post or by electronic means, such as fax or e-mail.Service without proof of receipt:
- personal service: at the defendant’s personal address on persons who are living in the same household as the defendant or are employed there;
- personal service: at the defendant’s business premises on persons who are employed by the defendant, in the case of a self-employed defendant or a legal person;
- deposit of the order in the defendant’s mailbox;
- deposit of the order at a post office or with competent public authorities and the placing in the defendant’s mailbox of written notification of that deposit stating the legal character of the document;
- by electronic means attested by an automatic confirmation of delivery, provided that the defendant has accepted this method of service in advance.A defendant’s address must be known with certainty for a European order for payment to be served. Service may also be effected on a defendant’s representative.
Opposing a European order for payment
The person who receives a European order for payment, i.e. the defendant, may lodge a statement of opposition with the court that issued the order for payment. The statement of opposition must be sent within 30 days of the order being served on the defendant. Statements of opposition are lodged using the form in Annex VI (form F), which defendants receive with the European order for payment. Defendants indicate in their statement of opposition that the claim is contested, without having to specify their reasons.
When a defendant lodges a statement of opposition, the proceedings continue before the competent courts of the EU country of origin in accordance with the rules of ordinary civil procedure, unless the claimant has requested that the proceedings be terminated in that event.
The regulation authorises the defendant to apply for a review of the European order for payment before the competent court after the expiry of the 30-day time limit for lodging a statement of opposition, provided that:
- the order for payment was served without acknowledgement of receipt by the defendant and service was not effected in time to enable him or her to prepare a defence;
- the defendant was prevented from objecting to the claim by reason of force majeure or due to extraordinary circumstances;
- the order for payment was wrongly issued.If the court rejects the defendant’s application, the European order for payment remains in force. If, on the other hand, the court decides that there is a case for a review, the European order for payment becomes null and void.
Enforcement is also refused by the competent court in the EU country of enforcement if the European order for payment is irreconcilable with an earlier decision or an order previously given in any EU country or in a non-EU country, upon application from the defendant. The decision must involve the same cause of action between the same parties and must have been recognised in the EU country of enforcement.