15 November 2022

Obtaining an injunction from the Court in The Netherlands

Category: Court proceedings, Litigation

Filing a lawsuit against another company or individual in the Netherlands is not always about money. Sometimes, it is necessary to get a court order compelling the defendant to take some desired action (like perform a contractual obligation to purchase real estate or take delivery) or restraining the defendant from acting in a manner that would harm your business (like coping products or infringing a competition clause). An injunction from a Dutch judge may be the proper remedy.

How to obtain your injunction in the Dutch Court?

A good remedy for that is an quick decision of the Dutch judge. Very often this is a temporary measure or judgement to settle things in an urgent mattter. The injunction remedy does not award money damages to the injured party, but protects property and other rights from irreparable injury by prohibiting or commanding acts that would (or are likely to) result in such injuries. It is however also possible to obtain a prepayment for damages in preliminary (summary) proceedings in the Netherlands.

Preliminary injunction or restriction order by Dutch Court

A Dutch court will allow a plaintiff to move for a temporary, preliminary injunction to restrain or compel the conduct at issue at the outset of a case, pending further investigation and trial. The purpose of a preliminary injunction is to preserve the relative positions of the parties (i.e., the “status quo”) either while the suit is pending or for some shorter period of time determined by the court. In certain emergency situations, it may be possible to obtain an injunction or freezing of assets at a hearing of which the defendant is not notified. This is sometimes necessary when there is a legitimate fear that the defendant would take the feared action (or inaction) upon learning of the lawsuit or motion. Of the different types of injunctions available, the form that compels another party to perform an act (as opposed to merely preserving the status quo and prohibiting certain actions) is considered the most extraordinary and is the most difficult to obtain in court.

Injunction to prevent irreparable harm by Dutch Company

A very likely cause for obtaining an injunction in Holland, a form of equitable relief, is the existence of an imminent threat of “irreparable harm,” that is, harm that is of such a nature that it cannot adequately be compensated with money damages. Ongoing damage caused by the defendant may be a proper cause to obtain an injunction in the Netherlands. An injunction can be a powerful remedy. Businesses would be well advised to include clauses in their contracts containing express agreements to allow future breaches or threatened breaches to be enjoined by injunctive relief. This is however not a prerequisitie to obtain a preliminary injunction in the Dutch Court.

Relevant factors for obtaining an injunction by the Court in The Netherlands

To obtain a preliminary injunction, it is necessary to convince the court that the “balance of hardships” should be decided in your favor. This generally means a showing that the irreparable harm to be suffered by the plaintiff if an injunction is not granted outweighs the harm that the defendant would suffer if the injunction is granted. Netherlands Courts will generally examine the some factors when balancing the hardships such as: (i) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is not granted; (ii) the likelihood of harm to the defendant if the preliminary injunction is granted; (iii) the likelihood that the plaintiff will succeed on the merits when the case goes to trial; and (iv) the urgency of the matter at hand.

Preliminary proceedings and trial in Dutch Court

Regardless of whether you succeed in obtaining a preliminary injunction on an expedited basis, you can ask for a permanent injunction at the main proceedings trial. Permanent injunctions are available on the same proof required to obtain preliminary injunctions, but the test is applied more strictly due to the permanency of the remedy ( and usually more evidence is available in the main proceedings). When a specific Dutch Statute provides for the availability of injunctive relief, the standards are relaxed significantly. Most importantly, a showing of irreparable harm is unnecessary when such a statute applies.

Consult one of Blenheim’s litigation attorney’s if you wish to apply for an injunction or if you wish to file a defense in court.