Abstract
This chapter addresses first of all the goals of civil justice that are recognised in the Netherlands. These are (a) the authoritative determination of rights recognised by private law and the provision of enforceable titles; (b) demonstrating the effectiveness of private law; and (c) the development of private law and guaranteeing its uniform application. Subsequently the following issues are discussed with regard to the Netherlands: (1) matters within the scope of civil justice, (2) the emphasis on the protection of individual rights in civil litigation, (3) the quest for a certain balance between a decision based on a sound factual basis and speed and efficiency in reaching this decision, (4) access to court, (5) proportionality between case and procedure, (6) multi-party litigation, (7) the absence of strict formalism, (8) case processing instead of problem solving, (9) the costs of litigation and (10) user orientation.
The information on Belgium and France was kindly provided, respectively, by Prof. Benoît Allemeersch (Catholic University of Leuven) and Prof. Frédérique Ferrand (Université Jean Molin, Lyon 3).
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Notes
- 1.
According to Benoît Allemeersch, in Belgium not only the effectiveness of private law is at stake here, but also the effectiveness of the court system as a whole. In each individual case, Belgian judges are at least implicitly trying to demonstrate that in the long run the system is an effective one. This also means that the length of the proceedings is not an issue to be determined by the parties. The judge may even disallow delays that are mutually requested by both of the parties.
- 2.
- 3.
According to Frédérique Ferrand, the following goals of civil justice are usually distinguished in France within the circles of legal scholars: (1) the determination and enforcement of rights recognised by substantive private law and (2) demonstrating the effectiveness of private law and the realisation of ‘social peace’. The development and uniform application of private law are not officially mentioned as goals of French civil justice. However, in practice, these goals are recognised where the Cour de cassation is concerned.
- 4.
See Contourennota (1998: 2 and 15ff.).
- 5.
See, e.g., n. 2 above.
- 6.
On externalities and civil procedural law, see, e.g. Visscher (2012: 65–92).
- 7.
The major collection of case law is the Nederlandse Jurisprudentie (‘Dutch Case Law’), which also contains influential case annotations by leading lawyers.
- 8.
See n. 2 above.
- 9.
Visie op het civiele proces: reactie fundamentele herbezinning burgerlijk procesrecht, p. 8, available at http://www.rijksoverheid.nl/bestanden/documenten-en-publicaties/kamerstukken/2007/02/05/reactie-fundamentele-herbezinning-burgerlijk-procesrecht-7026/reactie-fundamentele-herbezinning-burgerlijk-procesrecht-7026.pdf (last consulted in September 2013).
- 10.
According to Frédérique Ferrand, civil litigation is not seen as ultimum remedium in France. Even though ADR mechanisms (so-called Modes alternatifs de règlement des litiges or MARC) are being promoted by the State, mandatory preliminary mediation is only prescribed in rare cases (this last point is, as a matter of fact, also true in the Netherlands). For a proposal of mandatory preliminary mediation in family matters where a court order has been made with regard to the exercise of parental responsibilities, see Rapport Guinchard (2008: 24).
- 11.
Available at http://www.rijksoverheid.nl/bestanden/documenten-en-publicaties/regelingen/2011/04/04/memorie-van-toelichting-invoering-van-kostendekkende-griffierechten/mvt-griffie.pdf (last consulted in September 2013).
- 12.
Both plaintiffs and defendants traditionally pay court fees in the Netherlands. The defendant in small claims cases (‘cantonal’ cases up to €25,000) is exempt from this. Court fees can be recovered by the winning party from the losing party.
- 13.
See n. 11 above. The Dutch government was following the example of England & Wales, Scotland and Northern Ireland, where court fees are set at a level to cover the costs of the civil justice system. The Dutch proposal was of course opposite to the approach of France and some other European countries that have elevated the free administration of justice to a principle of civil procedure. It should be noted that in the Dutch proposal the costs of the administration of justice would not necessarily be covered completely at the level of individual cases but at a more general level since otherwise particular types of litigation would have become too costly.
- 14.
See p. 1–2; available at http://www.rijksoverheid.nl/bestanden/documenten-en-publicaties/regelingen/2011/04/04/memorie-van-toelichting-invoering-van-kostendekkende-griffierechten/mvt-griffie.pdf (last consulted in September 2013).
- 15.
See Council for the Judiciary (Raad voor de Rechtspraak) in its advisory opinion to the Minister of Safety and Justice, Advies wetsvoorstel kostendekkende griffierechten (21 June 2011), p. 7, available at http://www.rechtspraak.nl/Organisatie/Raad-Voor-De-Rechtspraak/Wetgevingsadvisering/Adviezen%202011/2011-24-Advies-wetsvoorstel-kostendekkende-griffierechten-21-6-2011.pdf (last consulted in September 2013).
- 16.
The government stated that higher court fees would stimulate ‘innovation’ since they would result in the parties’ finding ways to resolve a larger number of disputes outside the court. The higher fees meant, in its opinion, also that litigants would have higher expectations of the administration of justice, which in the government’s view would stimulate the courts to innovate, a somewhat curious line of reasoning indeed.
- 17.
See n. 15 above.
- 18.
Available at http://www.rijksoverheid.nl/documenten-en-publicaties/kamerstukken/2011/10/31/reactie-hoge-raad-der-nederlanden-op-wetsvoorstel-kostendekkende-griffierechten.html (last consulted in September 2013).
- 19.
According to Benoît Allemeersch, in Belgium court fees only cover 10 % of the costs of the court system. An increase of court fees is not on the agenda and it is politically not acceptable.
- 20.
Examples are contested divorce proceedings and the contested dissolution of a labour contract.
- 21.
Hugenholtz and Heemskerk (2013: No. 34).
- 22.
Arts. 1:227, 1:295, 1:378 and 1:235 Dutch Civil Code, respectively.
- 23.
Enforcement is the domain of specialised enforcement officers who are appointed by the State and who function outside the court; they are known as gerechtsdeurwaarders (court bailiffs) and share their origin with the French huissiers de justice.
- 24.
The holding of such registers is the task of specialised agencies; the land or, more in general, real rights (real property) register is held by the Kadaster (see http://www.kadaster.nl/web/show; last consulted in September 2013), while the companies register is held by the Chambers of Commerce.
- 25.
According to Benoît Allemeersch, the administrative tasks of the courts in Belgium are comparable to those in the Netherlands. Different from the Netherlands, the Belgian judiciary is also involved in the supervision of the parliamentary elections.
- 26.
As in the Netherlands, the scope of civil justice in France does not only encompass contested matters (juridiction contentieuse). According to Frédérique Ferrand, non-contested matters (matière gracieuse) also belong to the jurisdiction of the French civil courts (see Art. 25 Code de procédure civile). Uncontested matters (such as adoption, emancipation of a minor and appointment of a guardian) are initiated by way of a petition (requête), while contested matters are usually initiated by assignation (writ of summons). It has been suggested to transfer some uncontested matters to other officials than the judge, for example to the clerk of the court (e.g. orders for payment). The aim of this suggestion is to allow the judge to concentrate on contested matters and to increase the efficiency of the courts. See especially Rapport Guinchard (2008: 21–22).
- 27.
France knows neither punitive damages nor a comparable institute. Frédérique Ferrand states, however, that a recent decision of the Cour de cassation determines that punitive damages ordered by a foreign court are not automatically contrary to the French ordre public (Cass. Civ. I, 1.12.2010, n°09-13303, BICC n°739 of 1.4.2011). Such punitive damages only violate this ordre public when the amount is disproportionate to the real damages and in violation of the contractual obligations of the party that has been ordered to pay these damages.
- 28.
Art. 25 Dutch Code of Civil Procedure.
- 29.
Frédérique Ferrand states that with regard to the application of legal rules ex officio, Art. 12(1) and (2) Code de procédure civile contains important powers and duties for the judge: Art. 12(1) ‘The judge decides the case in accordance with the rules of law applicable thereto.’ Art. 12(2) ‘He must give or restore the proper legal definition to the disputed facts and deeds notwithstanding the definitions provided by the parties.’ These provisions may be interpreted as encompassing the formulas ‘Iura novit curia’ and ‘Da mihi factum, dabo tibi ius’. However, in a recent decision (Cass. ass. plénière, 21.12.2007, n°06-11343), the Plenary Assembly of the Cour de cassation provided a restrictive interpretation of them which has been criticised strongly by a majority of scholars.
- 30.
Art. 20 Dutch Code of Civil Procedure.
- 31.
Arts. 42–44 Dutch Code of Civil Procedure.
- 32.
Art. 111ff. Dutch Code of Judicial Organisation.
- 33.
According to Frédérqiue Ferrand, the French Public Ministry may initiate proceedings in which an element of public order is at stake. It can, for example, ask the court to declare a foreign adoption based on a contract with a surrogate mother null and void; the same applies to a marriage contracted only to obtain French citizenship. In such cases, the Public Ministry is a full party to the proceedings (partie principale). In other cases, the Public Ministry may act as partie jointe to the proceedings, which means that it can defend the public interest. At the French Cour de cassation there is a strong body of avocats généraux (unlike in the Netherlands, they are members of the Public Ministry), whose head is the procureur général près la Cour de cassation. In each civil case at the cassation court, the Public Ministry advises the court and suggests a solution by way of its conclusion. As in the Netherlands, the procureur général près la Cour de cassation can also bring an application in the interest of the law (pourvoi dans l’intérêt de la loi). In such cases, the sanction is only ‘Platonic’ and does not affect the original parties to the action.
- 34.
Art. 149 Dutch Code of Civil Procedure.
- 35.
Hugenholtz and Heemskerk (2013: No. 78).
- 36.
According to Benoît Allemeersch, Belgian litigants are also subject to a duty to be truthful and exhaustive in their presentation of the case. If the litigants do not live up to this duty, the judge may draw the necessary inferences from this, just as his or her Dutch counterpart.
- 37.
According to Frédérique Ferrand, in France parties have control over the ‘litigious matter’ (matière litigieuse) and can even ‘pursuant to an express agreement and in the exercise of rights that they may freely alienate, bind the judge as to the legal definitions and legal arguments to which they intend to restrict the action’ (Art. 12(3) Code de procédure civile). This shows that establishing the substantive truth is not necessarily the task of the civil judge. In France the parties are not required to submit all facts in a truthful manner (unlike in Germany or in the Netherlands); they are responsible for the allegation and proof of the facts on which their claims or defences are based (Arts. 6 and 9 Code de procédure civile). They are, however, required to cooperate in good faith in all investigation measures the judge may order (Art. 11 Code de procédure civile). The judge has extended powers to order any legally admissible investigation measure (mesure d’instruction, Art. 10 Code de procédure civile) ex officio.
- 38.
Art. 332 Dutch Code of Civil Procedure.
- 39.
In France ordinary appeals may only be brought if the value of the claim exceeds €4,000. Frédérique Ferrand states that further appellate review is possible and widely available at the Cour de cassation (there is no direct selection mechanism as in Germany). However, at the Cour de cassation a ‘procédure de non admission’ was created in 2001 (Law of 25 June 2001): a pourvoi en cassation can receive a preliminary refusal (déclaré non admis) if it is not based on a serious cassation ground.
- 40.
The grounds for appeal in cassation are to be found in Art. 79 Dutch Code of Judicial Organisation.
- 41.
According to Benoît Allemeersch, civil cases that reach the Belgian cassation court are informally filtered by the 20 specialised cassation attorneys in the country who have the monopoly on representing clients at this court. These lawyers see it as part of their deontology to determine whether cases are suitable for cassation proceedings. As a result, one out of two cassation proceedings in civil cases in Belgium is successful.
- 42.
Versterking van de Cassatierechtspraak (2008).
- 43.
See the still relevant PhD thesis of W.H.B. den Hartog Jager, Cassatie in het belang der wet. Een buitengewoon rechtsmiddel, Arnhem, Gouda Quint bv, 1994.
- 44.
Art. 80a Dutch Code of Judicial Organisation.
- 45.
H.J. Snijders (2011: 82).
- 46.
Arts. 392–394 Dutch Code of Civil Procedure.
- 47.
According to Frédérique Ferrand, in France during the course of civil proceedings the first instance or appellate court may suspend the hearing in order to ask the Cour de cassation a legal question. This is often done when a new law which has not yet been interpreted by the Cour de cassation has to be applied. This mechanism is called saisine pour avis de la Cour de cassation. The cassation court only gives an ‘avis’ which does not bind the lower court. However, this court usually follows the ‘avis’.
- 48.
Belgium also knows specialised divisions in the courts, although in that country there are various specialised courts, too.
- 49.
Arts. 254–259 Dutch Code of Civil Procedure.
- 50.
I will not discuss the procedure initiated by petition which is sometimes also applicable in adversarial cases – see above.
- 51.
According to Benoît Allemeersch, Belgium knows two procedural tracks in civil cases, the long track (ordinary track) and the fast track (korte debatten). In both tracks, a court hearing is scheduled immediately after the writ of summons has been served. At this hearing, parties may plead orally if they wish to do so and the judge may give a final judgment immediately afterwards. When subsequent procedural acts are necessary, which happens in the long track, the judge is in charge of fixing the time limits. As is widely known, France also knows various procedural tracks.
- 52.
At the EU level there is of course the small claims procedure (Regulation (EC) No. 861/2007 of the European Parliament and of the Council of 11 July 2007, establishing a European small claims procedure) which is, however, only applicable in case of cross-border litigation.
- 53.
Art. 3:303 Dutch Civil Code.
- 54.
Art. 131 Dutch Code of Civil Procedure. See also Arts. 87 and 88 of the same Code.
- 55.
Official Journal (Stbl.) 2010, 221; in force since 1 July 2010.
- 56.
Arts. 1019w–1019cc Dutch Code of Civil Procedure.
- 57.
Belgium does not know class actions or similar types of litigation either.
- 58.
In France there are no general provisions on group litigation. Frédérique Ferrand states that only an action en représentation conjointe by consumer associations is possible, which is designed as an opt-in procedure.
- 59.
See also Eliantonio et al. (2013: 425ff.).
- 60.
Art. 3:303 Dutch Civil Code.
- 61.
According to Benoît Allemeersch, in Belgium the ‘Eikendael doctrine’ teaches that legal persons cannot represent the interests of others; they may only bring an action in their own interest. Currently, there is some debate about this issue, but it is unlikely that changes will be introduced in Belgian law in the near future. There are a few exceptions to the ‘Eikendael doctrine’, e.g. where it concerns civil litigation as regards racism or environmental issues.
- 62.
Herziening van het procesrecht voor burgerlijke zaken, in het bijzonder de wijze van procederen in eerste aanleg (effective from 2002), Explanatory memorandum, Kamerstukken II 1999/2000, 26 855, Nr. 3, p. 5, available at https://zoek.officielebekendmakingen.nl/dossier/26855/kst-26855-3?resultIndex=33&sorttype=1&sortorder=4 (last consulted in September 2013).
- 63.
Art. 69 Dutch Code of Civil Procedure; e.g. relevant in the light of the statute of limitations.
- 64.
Art. 123 Dutch Code of Civil Procedure.
- 65.
Art. 66 Dutch Code of Civil Procedure.
- 66.
E.g. Asser et al. (2003: 35ff. and Chapter 5).
- 67.
The same applies to France. The report of the Guinchard Commission (2008) is especially important. The Commission had to think about a new ‘répartition des contentieux’, i.e. a new distribution of cases over courts and other judicial bodies. The Guinchard Commission promoted different reforms aiming at placing the justiciables (i.e. those searching for the administration of justice) in the centre of the judicial system. This requires clearer, easier and more foreseeable access to justice (accès plus facile, plus aisé et assurant une plus grande prévisibilité). The Report has already been implemented on several issues. A new law was enacted at the end of 2011 in order to implement other proposals formulated by the Report.
- 68.
The report Klantwaardering Rechtspraak 2011 is available at http://www.rechtspraak.nl/Organisatie/Raad-Voor-De-Rechtspraak/Nieuws/Documents/Landelijk%20Klantwaarderingsonderzoek%20Rechtspraak%202011.pdf (last consulted in September 2013).
- 69.
See De zaken meer op orde (2006).
- 70.
Although, the record is not bad. Just before the survey was conducted in 2005, the median case processing time in defended cases for the courts of first instance in the Netherlands had dropped by 20 %, from 525 days in 1996 to 413 days in 2003. In the same period, the percentage of cases terminated within 1 year rose from 34 to 49 %.
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van Rhee, C.H.(. (2014). Civil Justice in Pursuit of Efficiency. In: Uzelac, A. (eds) Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems. Ius Gentium: Comparative Perspectives on Law and Justice, vol 34. Springer, Cham. https://doi.org/10.1007/978-3-319-03443-0_3
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