Status of Digitalisation of ESCP Enforcemnt Procedures
At present, there is not any possibility for initiating/pursuing the ESCP enforcement procedures electronically in the Netherlands.
ESCP Procedural Aspects
1. Competent Enforcement Authority
In the Netherlands, the competent authorities to handle the enforcement of ESCP judgements are the court bailiffs[1]. The bailiff plays a central role in executing an ESCP judgement – similar to any other court decision – under the instructions provided by the creditor. The requesting party should give detailed instructions to the bailiff by surrendering an authentic copy of the ESCP judgement (bailiff’s copy) to the bailiff. To request for enforcing an ESCP judgement, the creditor must submit a copy of the judgement and the standard Form D (certificate concerning a judgement/court settlement in the European Small Claims Procedure) as issued by the court.
2. Rules on Service
As regards the rules on service in the execution of an ESCP judgement, the enforcement can be only effective if the bailiff’s copy has been issued. This document is an authentic copy of the judgment which is issued in an enforceable form.[2] To officially initiate with the execution process, the bailiff serves the debtor with the bailiff’s copy. This step is necessary to ensure that the party against whom the enforcement is sought is aware of the judgement and the demands of the creditor to comply with.
3. Language of the Certificate and Documents to be Appended
To pursue the execution of an ESCP judgement, the standard Form D and a copy of the judgement are only accepted in Dutch as the official language of the country.
4. Enforcement Fees
There are fixed fees that the debtor must pay to the bailiff for the official acts s/he performed in the context of enforcing a judgement. In addition, there are some non-fixed (negotiable) fees that the creditor must pay to the bailiff.
In general, the bailiff fees are governed by the Decree on the rates of the official acts of bailiffs that can be found here: https://wetten.overheid.nl/BWBR0012638/2022-01-01. These fees are adjusted annually. The current applicable fees to the bailiffs’ official acts from 1 January 2022 are specified on the website of The Royal Professional Organization of Judicial Officers in the Netherlands at https://www.kbvg.nl/gerechtsdeurwaarders/kosten.
5. Refusal, Stay, or Limitation of Enforcement Procedures
Article 8 of the Implementation Act provides that the applications (as referred to in Articles 22 and 23 of the ESCP Regulation) for enforcement of any court decision in the ESCP are governed by Article 438 of the Dutch Code of Civil Procedure that stipulates: ‘‘1. Disputes which arise in connection with enforcement shall be brought before the district court (rechtbank) that would have jurisdiction under the normal rules, or in whose geographical jurisdiction seizure is to take place, one or more of the items of property affected are located, or enforcement is to be carried out; 2. In order to obtain an interim measure, interim proceedings (kort geding) can also be brought before the judge hearing applications for interim relief (voorzieningsrechter) at the court with jurisdiction under paragraph (1). Without prejudice to his other powers, the judge hearing applications for interim relief can, if required, suspend the enforcement for a certain time or until judgment has been given in the dispute, or decide that the enforcement can go ahead or be continued only if a security is lodged. The judge can lift an attachment, with or without the provision of security. During enforcement the judge can order incomplete formalities to be rectified, stipulating which of the incomplete formalities must be carried out again and who is to bear the costs involved. The judge can order that any third party joined in the case must consent to the continuation of enforcement or cooperate with the procedure, with or without the provision of security by the party seeking enforcement; 3. If the case does not lend itself to interim proceedings, the judge hearing the application can, instead of dismissing the application and if the claimant so requests, refer the matter to the district court, specifying the date on which it must be heard. A defendant who fails to appear on that date and is not represented in court by his lawyer shall be declared to be in default if he was summoned to attend the proceedings on that date with due regard for the time limit prescribed for a summons or the time limit set by the interim relief judge at the claimant’s request;
4. If an objection is made to the bailiff responsible for enforcement which calls for the adoption of an immediate interim measure, the bailiff may present himself to the interim relief judge with the report he has drawn up on the subject asking the judge to adopt an interim measure deciding between the parties involved. The interim relief judge shall stay the proceedings until the parties have been summoned unless, because of the nature of the objection, he considers that an immediate decision is required. A bailiff who exercises this power without the agreement of the party seeking enforcement may himself be ordered to pay costs if it transpires that his action was unfounded;
5. A third party can object to enforcement by serving a summons on both the party seeking enforcement and the party against whom enforcement is sought;
6. Opposition to execution by a third party shall be made by summons of both the executor and the executed.’’[3]
In the Netherlands, the enforcement will be suspended if the debtor requests an ordinary remedy against an ESCP court decision through filing an opposition, appeal, or a cassation. The District Court is the competent authority to hear all the disputes concerning enforcement procedures. These cases are handled in the interlocutory proceedings which may lead to suspension of the enforcement for a specific period or entirely lifting the attachment. This must be, however, noted that if the court decides that the judgement is null and void, the creditor will be held liable (under tort law) for all the damages caused by the execution process.
Critical Assessment
In the Netherlands, the existence of the Implementation Act of 2009 provides a useful framework for a more effective application of the ESCP under the national legal system. However, with respect to the execution of ESCP judgements, the existing regulatory measures need to be improved to ensure a more effective and simplified enforcement of court decisions for (foreign) creditors. This study suggests the existing information on the published EU e-Justice Portal to be updated with more precise and detailed information on the national procedural rules and the steps to be taken by the creditors to execute an ESCP judgement in the Netherlands. It is also recommended that the Dutch judiciary website provides more detailed information (e.g., in the form of a simplified interactive roadmap) on national execution rules in the context of the ESCP proceedings.
It is particularly recommended that the creditors of the ESCP rulings can most benefit from a fully digitalised enforcement procedures to overcome the existing difficulties faced by the creditors in cross-border debt recovery.
[1]In Dutch: gerechtsdeurwaarders. For more information visit < https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Amsterdam/Regels-en-procedures/Paginas/Kamer-voor-gerechtsdeurwaarders.aspx> accessed 22 July 2022.
[2]The general rules on service of documents in civil and commercial matters in cross-border cases among the EU Member States are governed by Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast).
[3]It should be considered that paragraphs 3 and 5 are subject to the amendments towards more simplification and digitalisation of the civil procedural rules in the Netherlands.