Is a simplified procedure specifically aimed at dealing with claims that are likely to remain uncontested by the defendant (a so-called order for payment procedure) available?
There is no specific order for payment procedure in the Netherlands. Dutch legislation does, however, provide for a default procedure (Articles 139-142 of the Code of Civil Procedure). In many cases where payment has not been made, this can serve the function of a payment order. The default procedure is accordingly described below.
The default procedure is part of the normal judicial writ of summons procedure. A plaintiff launches the procedure by summoning the defendant to appear in the case. If the defendant fails to appear, despite having been duly summoned, the court will declare him or her in default. Following such a declaration the court will generally allow the plaintiff’s claim. Only claims considered by the court to be unlawful or unfounded will not be allowed. Once a judgment by default has been handed down the plaintiff can start to recover the claim. On receipt of the judgment the debtor can either settle the debt or oppose the judgment.
If a judgment is opposed, a normal adversary procedure is started. The court will examine the case again and consider the defendant’s objections.
A declaration of default can in principle be issued in any civil procedure for all types of claim lodged by writ of summons, at first instance, on appeal and in interlocutory proceedings.
For a plaintiff wishing to recover a claim through the court the writ of summons procedure is the only option. It is up to the defendant whether or not to appear. The plaintiff does not know beforehand whether or not the defendant will appear.
The normal writ of summons procedure can be used and a declaration of default issued even if the defendant lives abroad. Special requirements are, however, laid down under certain international regulations and conventions regarding the proper summoning of the defendant. If these are not fulfilled no declaration of default can be issued. In the case of a debtor living in another EU Member State, Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters applies. In the case of debtors resident outside the EU, the 1965 Hague Service Convention will often apply.
The default procedure is not a separate procedure. The general rules on jurisdiction apply.
At first instance jurisdiction rests with the judge of the sub-district court ("kantonrechter") for claims up to €5 000 and the civil division of the district court (“rechtbank”) for claims above €5 000. (See also Jurisdiction of the courts - Netherlands and the section on the small claims procedure below.)
There is no standard form for obtaining a judgment. There are formal requirements governing the contents of a writ of summons. A lawyer or a bailiff will draw up the writ. The bailiff serves the writ of summons on the debtor.
The rule in the Netherlands is that the plaintiff in cases in the civil division of the district court must be represented by a lawyer. In sub-district court cases the plaintiff may represent him or herself or appoint an authorised agent, who does not have to be a lawyer.
If a defendant who is required by law to be represented by a lawyer in a procedure appears in person at the hearing, the court will not immediately find him or her in default. It will probably remind the defendant of the requirement to engage a lawyer and give him or her the opportunity to correct this omission by setting a new date for a hearing at which the defendant will be represented by a lawyer.
Every writ of summons must contain the claim and the reasons for it, together with a description of the objections the debtor has already made against the claim.
The debtor must cite the evidence and witnesses in the writ of summons, but no documents have to be submitted.
See 1.1.b. The claim will be rejected only if the court believes that it is unlawful or unfounded.
Can the applicant appeal against the refusal of an order for payment?
Yes, subject to the condition that the value of the claim must be above a statutory minimum of €1 750.
Until a final judgment by default has been issued the defendant can still regularise the situation by appearing in the case, for example by carrying out the correct procedural steps through a lawyer. As a result of regularisation, the consequences of the default cease to apply and the case becomes a normal adversary procedure. The defendant is then entitled to conduct a defence in the normal way (e.g. statement of defence). If a final judgment has been handed down, the person found in default can oppose the judgment. See 1.8.b.
If the defendant opposes the judgment the case goes ahead as a normal adversary procedure. The notification of opposition then constitutes the statement of defence.
The claim is awarded in the form of a judgment. Once the judgment has been served on the debtor in person, he or she has a limited time in which to oppose it (four weeks if the debtor lives in the Netherlands or eight weeks if he or she lives abroad). If the judgment cannot be served in person, the relevant period will begin only once the debtor has acknowledged receipt of the judgment and at the latest on the day on which the judgment is enforced. The statement of opposition is lodged with the court that handed down the judgment.
If the defendant was duly summoned by writ and failed to appear in the case, if the other conditions have been met and the defendant has not regularised the situation, the court will allow the plaintiff’s claim. See 1.1. for a description of the procedure for issuing a judgment by default.
If a final judgment has been hand down allowing the plaintiff’s claim, the defendant may oppose this in the court that delivered the judgment by default. See 1.6., which also explains the time allowed for doing so.
A judgment is opposed by a writ of summons which must state the grounds. This writ constitutes the statement of defence. This means that after the writ has been served the case is dealt with under the normal procedure (personal appearance by the parties and/or reply and rejoinder).
If the defendant has accepted the judgment by default there is no possibility of opposition. The defendant will be considered to have accepted the judgment if, given the circumstances of the case, he or she acts in such a way towards the plaintiff as to indicate unequivocally that he or she will comply with the judgment, or if the plaintiff has had legitimate grounds for relying on this (Article 3: 35 of the Civil Code).
The legislation relating to sub-district court cases may be found in Overheid.nl.
For information about the judiciary, such as the different jurisdictions and the addresses of all the courts in the Netherlands see.
Last update: 16-11-2006