The term ‘jurisdiction’ refers to the authority given by law to a court to try cases and rule on legal matters over certain types of legal claims and/or within a particular geographic area. In cases between two citizens of the same country, where neither the claim itself is related to a foreign State, the court of the home country of both parties is always competent to consider the action and to give a judgment in order to settle the dispute. The courts of that State then will have jurisdiction.
Usually there are several types of courts within the judicial order of a country. The rules of national jurisdiction of that country decide which type of court is allowed to take the legal claim into consideration. In such an event one speaks of subject-matter jurisdiction (or jurisdiction ‘ratione materiae’). Within the Dutch judicial system four types of courts can be distinguished: the Supreme Court, the Courts of Appeal, the District Courts and the Subdistrict Courts. The plaintiff must file his legal claim (or lodge his application) at the right type of court. If he fails to do so, his claim is inadmissible.
The rules on national jurisdiction also decide in which territory the plaintiff has to address a certain court of a specific type to consider his claim. There are various courts of the same type spread over the country. Yet, only one of them is competent to admit the legal claim. This question deals with territorial jurisdiction (or jurisdiction ‘ratione loci’) of the court.
Only the court with subject-matter and territorial jurisdiction can give a valid judgement on a legal claim involving merely Dutch parties and Dutch elements. The Code of Civil Procedure regulates which Dutch court has the required subject-matter jurisdiction as well as the necessary territorial jurisdiction.
As soon as a legal claim encloses an international element, in the sense that at least one of the involving parties is not a resident of the Netherlands or the case is otherwise strongly connected with a foreign country, questions about international jurisdiction arise. Is the Dutch court, were the ‘cross-border claim’ is filed, allowed to admit and rule on the matter or must it hold off the claim in favour of the court of another country? This involves jurisdiction according to rules of International Private Law. The question in which country a legal action may or must be started, is usually answered by European Regulations and Treaties (Conventions). If such international rules do not provide an answer, the matter is dealt with by Dutch rules of International Private Law. In this last situation purely Dutch statutory provisions decide whether a cross-border claim may be accepted by a Dutch court. The Netherlands have quiet a lot of Acts of Parliament that deal with issues of International Private Law. When no European Regulation or Treaty is applicable to provide the answer, these domestic provisions point out whether the seised Dutch court has jurisdiction to admit the claim or petition.
These Dutch statutory provisions, however, are not the same as the ones deciding which Dutch court has, on a national level, jurisdiction. It involves two different questions, each to be answered by its own rules of law. When Dutch courts are competent to take a claim or application into consideration, regardless whether this competence is based on national or international rules of International Private Law or on other (national) rules, the national rules on national jurisdiction always point out which type of court is competent to accept the case and in which district this type of court has to be addressed to get access to legal proceedings.
So Dutch rules on national subject-matter and national territorial jurisdiction will in the end always become significant, even for matters involving a cross-border claim. If the relevant rules of International Private Law, whether derived from an applicable Treaty or European Regulation or from national laws, have indicated that a cross-border claim may be brought to a Dutch court, then the rules on national subject-matter jurisdiction and national territorial jurisdiction become relevant to determine where the legal claim actually has to be filed within the Dutch judicial system. So, depending on the nature and content of the cross-border claim, one specific type of Dutch court has to be picked out (subject-matter jurisdiction). This type is the only one to admit a national or international lawsuit of this kind. And the national rules on territorial jurisdiction decide in which territory a court of that type has to be sought. Is it, for instance, the court of Amsterdam or perhaps of the Hague? These matters are not governed by rules of International Private Law, irrespective whether the question if the Netherlands have international jurisdiction has to be answered on the basis of a Treaty or European Regulation or on purely Dutch International Private Law. Within the judicial system of the Netherlands only Dutch law is applicable in order to handle issues of subject-matter and territorial jurisdiction.
The same methodology applies to questions as how these legal proceedings have to be initiated and which procedural rules have to be observed by parties during the trial. These matters are governed as well purely by Dutch law, specifically by the provisions of the Dutch Code of Civil Procedure.
The Code of Civil Procedure determines which type of court is authorized to admit a civil legal action in order to give a valid judgment regarding the filed legal claim.
Since there are no specialized courts for different areas of private law in the Netherlands, the rules for subject-matter jurisdiction are quiet simple. There are three different types of courts in the Dutch judicial order for private law. The Court of First Instance, the Court of Appeal and the Supreme Court. All legal claims and applications must initially be brought before the Court of First Instance. An appeal against a judgment of such a court must be lodged with the Court of Appeal. The Supreme Court may subsequently examine in cassation if the decision of the Court of Appeal is in conformity with the law. The decree of the Supreme Court is in any event final and binding. There are no possibilities to challenge its judicial decision.
Although a legal claim in the beginning always has to be brought before a court of first instance, it is not so easy as it looks. Officially there is only one Court of First Instance, the District Court, but in reality there are two types: the District Court and the Subdistrict Court. Each District Court comprehends two or more Subdistrict Courts. A legal claim must be filed in first instance either at the District Court itself or at one of its Subdistrict Courts. Only one of these two types may be regarded, depending on the nature of the claim, as court of first instance. If a legal claim is filed at the District Court, although it should have been lodged with the Subdistrict Court, then the District Court will order a non-suit, and divert the claim to the competent Subdistrict Court, and vice versa. This, however, leads to a considerable delay and extra costs. So a plaintiff (or applicant) always has to ascertain up front if he must address his claim to the District Court or the Subdistrict Court.
The District Court is the court of first instance for all legal claims, expect when the law has granted the Subdistrict Court exclusive jurisdiction as court of first instance. In this respect two rules have to be observed to make out which claims fall under the exclusive jurisdiction of the Subdistrict Court. The Subdistrict Court has exclusive jurisdiction with regard to:
When one of the grounds mentioned under point (a) or point (b) is involved, then the legal claim must be brought before the Subdistrict Court. In all remaining matters the District Court has jurisdiction in first instance. In other words: when the legal claim represents a financial value of more than € 5,000, only the District Court has jurisdiction, unless the claim is based on one of the agreements mentioned under point (b). In these last events the Subdistrict Court has always exclusive jurisdiction because of the nature of the claim, irrespective its value.
Where the same plaintiff simultaneously files two or more claims against the same defendant, the total amount of these claims is decisive to determine whether the € 5,000 limit to determine the jurisdiction of the Subdistrict Court has been crossed. Yet, if one of the involved claims is based on an employment agreement, a lease agreement, a commercial agency agreement or a hire-purchase agreement, then another rule comes to the surface. It’s conceivable that one party in the same court proceedings not only files a legal claim based on one of these contracts, but also a claim against the same defendant that is based on another legal basis than one of these contracts. In such a situation the sought court must split up the legal claims and determine for each of them individually if it is entitled to give a judgment on it. Where one of the legal claims falls outside the scope of its subject-matter jurisdiction, this claim has to be diverted to the competent court. Only the other claim may be taken into consideration. So if a legal claim based on a lease agreement and a legal claim based on a sale agreement, filed against the same defendant, are brought before the Subdistrict Court at the same time, then the Subdistrict Court always has to accept the legal claim related to the lease agreement, whereas the legal claim that has arisen from the sale agreement is only admissible if its value is less than € 5,000. When the value of the claim coming from the sale agreements exceeds an amount of € 5,000, the Subdistrict Court must relay it to the District Court. It may only consider the claim which relates to the lease agreement, since it is not competent to consider the other claim at all. Yet, the Subdistrict Court may conclude that both legal claims are so closely connected with each other that a simultaneous consideration in the same legal proceedings is appropriate. In that event the Subdistrict Court is allowed to give a judgment on that other claim too, although this claim actually falls under the jurisdiction of the District Court.
This rule, however, doesn't apply to the District Court. When the District Court is asked to give its judgement on two different legal claims against the same defendant, for instance a legal claim with a value of more than € 5,000 and a claim that has arisen from a lease agreement or a hire-purchase agreement, it may never admit this last claim, even when that claim is closely connected with the claim over which it has jurisdiction. Only the Subdistrict Court may rule on a legal claim related to an employment contract, a lease agreement, a commercial agent agreement or a hire-purchase agreement.
It may occur that two or more parties file in the same writ of summons different legal claims against the same defendant. Then for each legal claim it must be assessed independently if it falls within the jurisdiction of the District Court or the Subdistrict Court. When one plaintiff claims for example the payment of € 2,000 and the other of € 4,000, then both claims must be handled by the Subdistrict Court, even though the total sum of both claims exceeds an amount of € 5,000. If one of these parties, however, demands the payment of an amount of € 15,000, then he must bring his claim to the District Court, unless it relates to one of the agreements mentioned under point (b) over which the Subdistrict Court has exclusive jurisdiction. The nature or value of the legal claim of the other plaintiff, that was filed in the same writ of summons, is of no importance.
The same rule has to be followed when one plaintiff claims something from two or more defendants within the same writ. Each of these claims has to be evaluated independently in order to assess if the Subdistrict Court or the District Court is competent to rule on it. If, for instance, the District Court concludes that it is only able to give a judgment on the legal claim against one of the defendants, but not against the other, then it will divert the legal claim against that defendant to the Subdistrict Court.
Quite often, after the plaintiff has filed his legal claim in court, the defendant not only reacts with a written defence, but also with a counterclaim against the plaintiff, brought before the same court in the same legal proceedings. The seller demands for instance the payment of the delivered machines, whereupon the de buyer not only refuses to pay the purchase price, but also claims damages because the delivered machines have destroyed his goods in stock. In such an event two separate proceedings take place before the same court, which are more or less dealt with synchronously within the same framework. Once again the question arises if the court that was sought by the plaintiff, is competent to consider the counterclaim of the defendant too. In principle the question whether the court has jurisdiction must be answered for each claim independently. So when the plaintiff has brought his claim before the District Court, while the counterclaim of the defendant belongs to the exclusive jurisdiction of the Subdistrict Court, the District Court is not able to admit this last claim. It must relay it to the Subdistrict Court, where it will be considered as a separate case. But when one of the involved legal claims – either the original claim of the plaintiff or the counterclaim of the defendant – relates to an employment contract, lease agreement, commercial agency agreement or a hire-purchase agreement, then the Subdistrict Court is always competent to give a judgment on both claims, even if the other claim belongs in itself to the jurisdiction of the District Court, provided that the Subdistrict Court finds that both legal claims are so closely connected with each other that a simultaneous consideration in the same legal proceedings is appropriate. The District Court may rule in the same way when it has jurisdiction over the first filed claim, but in principle not over the counterclaim of the opposite party, because the value thereof is less than € 5,000. It is allowed to accept the counterclaim although it represents a value of less than € 5,000, provided there's a connection between the first filed claim and this counterclaim. However, when the counterclaim results from an employment agreement, a lease agreement, a commercial agency agreement or a hire-purchase agreement, this claim will always belong to the exclusive jurisdiction of the Subdistrict Court. The District Court is never allowed to give a judgment on such a counterclaim, not even when its value exceeds an amount of € 5,000 and is closely connected to the claim first filed.
All petitions have to be brought to the District Court, unless the law indicates that they must be lodged with the Subdistrict Court or a Court of Appeal. When a petition has to be lodged with the Subdistrict Court or a Court of Appeal, this will be defined explicitly in the relevant statutory provisions of the Civil Code or another Act, being the same provision as the one that ponts out that the mentioned legal action has to be initiated by a petition instead of a writ of summons. So in application proceedings it's easy to find out if an application must be made in deviation of the before mentioned general rule.
Subject-matter jurisdiction is governed by mandatory law. So parties are not able to derogate from it by mutual agreement, unless the law itself provides an opportunity to do so. The law acknowledges three such possibilities. They are referred to as ‘prorogation’, being the possibility to agree in relation to civil legal proceedings that a dispute will be submitted directly to another court than the one that would have been competent according to statutory provisions on subject-matter jurisdiction.
As fas as it concerns prorogation of subject-matter jurisdiction, Dutch procedural law knows the following forms:
When the District Court, according to rules on subject-matter jurisdiction, would have been the competent court to consider a claim, parties may agree that this claim is to be judged in first instance by the Subdistrict Court instead (Article 96 Code of Civil Procedure). Where parties have chosen for this type of prorogation, they have to be aware that they have no possibility to appeal against the decision of the Subdistrict Court to a Court of Appeal, unless they have reserved this right explicitly when they made the agreement of prorogation (Article 333 Code of Civil Procedure). If they fail to make such a reservation, then no way to a Court of Appeal is open. A party nevertheless remains in that case entitled to an appeal in cassation to the Supreme Court.
Parties may agree to skip the legally designated court of first instance in order to put the case immediately to a Court of Appeal (Article 329 Code of Civil Procedure). Unless parties have pointed out a competent Court of Appeal themselves, the Court of Appeal that would have had jurisdiction to review the case in appeal, has now territorial jurisdiction in first instance. The Court of Appeal deals with such a case of prorogation in accordance with the procedural rules for legal proceedings in first instance (Article 331 paragraph 1 Code of Civil Procedure). This is understandable because parties who have brought their case directly to a Court of Appeal are only before this court making their arguments for the first time. Normally, in appeal proceedings before the Court of Appeal, they would have less opportunities to substantiate their case, since most procedural actions would already have been performed in first instance before the District Court or Subdistrict Court. When parties have pointed out a Court of Appeal as their court of first instance they must have the same possibilities to demonstrate their case as they would have had otherwise in first instance. Although the Court of Appeal rules in such circumstances as a court of first instance, parties have no longer the possibility to appeal against its decision, for instance by taking the case to another Court of Appeal. So when parties have agreed to pass over the legally designated court of first instance, they automatically surrender their right to ask a Court of Appeal to review the case in appeal (Article 331 paragraph 2 Code of Civil Procedure). Yet, a party still may appeal in cassation to the Supreme Court in order to reverse the judgement rendered by the Court of Appeal in first instance.
After a court of first instance (District Court or Subdistrict Court) has given its decision, parties may agree to surrender their right to appeal to a Court of Appeal, with the purpose of bringing the case immediately to the Supreme Court for an appeal in cassation (Article 398 Code of Civil Procedure). Now the Court of Appeal is passed over, for instance because parties do not disagree about the relevant facts, but only about the consequences thereof in view of applicable legal provisions. In order to save time and money they may ask the Supreme Court to give its legal opinion in a final and binding decree.
Prorogation is a legal option that only applies to summons proceedings. In application proceedings parties have no possibility to bring their case (application) to another court than the one with subject-matter jurisdiction designated by law.
Furthermore, the above mentioned possibilities only exist with regard to legal relationships that are at the parties ‘free discretion’. In situations in which public order plays a part, parties are not allowed to decide themselves how they want to arrange their relationship. Especially in matters of personal status under the law of persons and family law (right to a name, marriage, adoption, paternity) parties are not free to create their own solution. The same applies to cases involving bankruptcy and moratoriums on payment. Most of the legal proceedings concerning one of these matters, however, have to be initiated by a petition anyhow, so that prorogation already for this reason would be no option. In summons proceedings the legal claim usually is based on an obligation or another property right with regard to which parties may freely fix their mutual relationship.
And, finally, prorogation requires an agreement between all the parties involved at the dispute. It can’t be forced upon one of them. An agreement of prorogation of subject-matter jurisdiction is not subject to formal requirements. Although it is usually laid down in writing, it may be concluded orally. One has to be aware, though, that such an agreement can be made only after a dispute between parties has seen the light. It is not permitted to stipulate such a clause up front, for instance in the principal contract or the general terms and conditions governing it. Such a stipulation is null and void and has no meaning at all when after a while a dispute might arise from this contract or the way it is carried out. Only when there is actually a difference of opinion, parties may agree to bring their case to another court than the one designated by statutory provisions on subject-matter jurisdiction. If a stipulation of this kind is made after the occurrence of a dispute, but only by means of a single clause in the applicable general terms and conditions governing the later made agreement with respect of that dispute, then it is voidable under Article 6:236 under point (n) as far as it’s invoked against an opposite party who qualifies as a consumer.
Territorial jurisdiction refers to a court's power over events and persons within the boundaries of a particular geographic territory. It results from the fact that the judicial order of a State usually entails many different courts of the same type, spread over the country. In order to protect the defendant the plaintiff is not allowed to choose just any court of the type with subject-matter jurisdiction, but he has to bring the case before a court which is literally within easy reach of the defendant. If a court does not have territorial jurisdiction over the events or persons within it, then it cannot bind the defendant to an obligation or adjudicate any rights involving him.
The Netherlands is divided into several judicial regions. After the plaintiff has determined which type of court has subject-jurisdiction, he must find out in which judicial region he has to address this type of court in order to get a judgment on his claim. The territorial jurisdiction (or jurisdiction ‘ratione loci’) is regulated as well in the Code of Civil Procedure. There are in total 19 District Courts and 56 Subdistrict Courts spread over the country. In principle only one of the 19 District Courts or, when the Subdistrict Court has subject-jurisdiction, only one of the 56 Subdistrict Courts can admit the legal claim (or application), so the plaintiff must choose the correct one. A person may not freely point out just any District Court or Subdistrict Court to consider his claim, since it was felt that the defendant must be able to defend himself before a court in the vicinity of his home. Especially in bygone days it was troublesome for people to travel from one part of the country to the other and to consult a solicitor that was registered at a court in that other part of the Netherlands. Nowadays these objections are of course less relevant. People travel more easily and every Dutch solicitor may represent his client in any court in the Netherlands (with the exception of the Supreme Court), since the formal procedural rules which apply during a court case and the material rules of private, criminal and administrative law are the same everywhere in the country. But still it’s more convenient for a defendant to prepare his case close to home with the help of a solicitor who practices law in his own town, who he even might know for a long time. The Judiciary Act (or Territorial Division Act) places each municipality in the Netherlands in one of the 19 court districts and in one of the 56 subdistricts. In principle the court in whose district or subdistrict the municipality is located where the defendant lives, has territorial jurisdiction over all legal claims against that defendant. But there are a few exceptions to this rule, whereas in application procedures the principle rule is in principle reversed, in the sense that the court in whose district or subdistrict the applicant lives, has territorial jurisdiction. But also this principal rule is subject to specific exclusions and additions.
With regard to summons proceedings the most important rule of territorial jurisdiction is Article 99 of the Code of Civil Procedure, with the observation that parties are entitled to point out a court in another judicial region by mutual agreement.
Unless the law stipulates differently, the court of the place of domicile of the defendant is the only court with territorial jurisdiction to admit any legal actions against this defendant. So the claim must be filed at the District Court or the Subdistrict Court, respectively, in whose district or subdistrict the official domicile of the defendant is located. In order to ensure that the defendant is summoned before the right court, the plaintiff shall have to ask a bailiff or solicitor to consult the municipal population registers to find out where the defendant officially has his domicile. When this doesn’t bring a satisfying answer, for instance because such a registration doesn’t exist or it is certain that the defendant doesn’t actually live at the registered address anymore, then the plaintiff must try to retrieve where the defendant actually resides (in the Netherlands). So if the registered place of residence of the defendant is unknown, then the court in the place where the defendant actually resides (in the Netherlands) has jurisdiction. This Internet site contains a map of the judicial districts and subdistricts and a list of all the municipalities of the Netherlands, mentioning for each town in which district and subdistrict it is located.
There are a few important exceptions to the earlier mentioned rule that only the court of the place of the habitual residence or of the place of business of the defendant has territorial jurisdiction. These exceptions do not set aside the principle rule, but point out a second court, where the legal claim may be filed too. Where such an exception is relevant, the plaintiff therefore may choose from two possible courts with territorial jurisdiction. Both courts are competent to admit the claim and to give a judgment on it, although not concurrently. The first sought court, provided it has territorial jurisdiction, shall continue the proceedings.
According to Article 6, the Dutch court has also jurisdiction in matters
One has to notice that, unless the law provides otherwise, the plaintiff has the choice between the court as indicated by the main rule of territorial jurisdiction and the additional court that is pointed out by Article 6. Legal claims, for example arising from an employment contract or commercial agency agreement, may, in addition to the court of the place of the habitual residence or of the place of business of the defendant, be brought before the court of the place where the employee or agent usually works or usually worked prior to the end of the agreement (Article 100 of the Code of Civil Procedure). The employer and commercial agent therefore may choose from two different courts. But the same applies to the employer or principle who wants to start a lawsuit against his (former) employee or commercial agent. If the place of habitual residence or the place of business and the place where the work was usually performed, are situated in the same district or Subdistrict, then the choice, of course, is in fact still limited to one court.
As far as application proceedings are concerned, the most important rule of territorial jurisdiction is to be found in Article 262 of the Code of Civil Procedure. The application must be lodged with the court of the place where the applicant lives or where one of the other interested parties, mentioned in the application, resides. Where there is no known place of residence in the Netherlands, the court in the place where the applicant actually resides (in the Netherlands) shall have jurisdiction. If the application is connected with proceedings instituted by summons, then the court that has territorial jurisdiction over the legal claim may also take the application in consideration. Where a request is made to change the level of maintenance obligations or alimony, different rules for territorial jurisdiction apply. An application to change the level of maintenance obligations cannot be lodged with the court in whose district or subdistrict the applicant himself resides, but only with the court of the place where the child in question resides. With regard to applications to change the level of alimony, the territorial jurisdiction depends on the question who makes the petition. When the person who receives alimony requests for a change of the level of alimony, the application must be lodged with the court of the place of residence of the person who is obliged to pay him alimony. If this last person makes a request to change the alimony he has to pay, then he must lodge the application with the court of the place of residence of the person who is entitled to this alimony.
Parties may derogate by written agreement from the territorial jurisdiction of the courts within the Netherlands as provided for by law (Article 108 Code of Civil Procedure). This means that they are allowed to select a court (with appropriate subject-matter jurisdiction) in another territory than the district or subdistrict pointed out by the Code of Civil Procedure.
Such a choice of forum is only possible in respect of legal relationships that are at the parties’ ‘free discretion’ (see above). When legal proceedings have to be initiated by a writ of summons the dispute will usually involve a matter at the free discretion of parties.
The choice of forum must be made by agreement. This can be done after the dispute between parties has come up, but also at an earlier stage, for instance immediately when parties enter into a principal contract or another legal relationship from which disputes might possibly arise in future.
The choice of forum may be a separate agreement or a clause in another principal contract. In botch cases, however, the choice of forum clause is regarded and examined as an independent agreement between parties in order to establish its validity. The designated court is allowed to judge whether the choice of forum clause or the principal contract, in which it is laid down, is valid for this purpose (Article 108 paragraph 4 Code of Civil Procedure).
That a choice of forum has been made, can be proven only by means of a written agreement between parties. To prove the existence of such an agreement it’s enough to show a written document which entails a choice of forum clause or which refers to general terms and conditions containing such a choice of forum clause, provided that this document has been accepted explicitly or tacitly by the opposite party.
With regard to certain legal claims there are limitations as regards to the possibilities to agree upon a choice of forum clause. A choice of forum relating to a legal claim of less than € 5,000 (therefore – for this reason – irrespective of its nature falling under the subject-matter jurisdiction of the Subdistrict Court) has no effect, unless it was entered into after the moment on which the dispute between parties had arisen. The same applies to legal claims resulting from an employment agreement, a lease agreement with regard to a dwelling or a retail building or an agreement between an entrepreneur and a consumer, and this always irrespective of the value of the legal claim. In these last situations, however, a choice of forum made prior to the moment on which the dispute had come up remains valid and effective insofar the employee, consumer or lessee files the claim at the court designated in accordance with that choice of forum.
When an effective choice of forum relating to territorial jurisdiction has been made by means of a clause in the applicable general terms and conditions, the opposite party, as far as he is a consumer, must always have the opportunity for at least one month since that clause was invoked against him, to choose for a normal court in the place appointed as the competent one under the rules for national territorial jurisdiction. If the clause doesn’t provide this opportunity, it may be nullified by the opposite party who qualifies as a consumer (Article 6:236 under point (n).