Free Choice of a Dutch lawyer with Legal Expenses Insurance

Published on 14 March 2026 · Last updated 28 October 2026

With legal expenses insurance, you are free to choose your own lawyer as soon as legal or administrative proceedings are needed, and whenever there is a conflict of interest. Dutch law requires every legal expenses policy to say so (Article 4:67 Financial Supervision Act), based on EU law. Before proceedings, the insurer may handle the case itself. It may cap the costs it covers, but not make your choice meaningless.

This page is for foreign and Dutch businesses and individuals with legal expenses insurance who want a lawyer of their own choice in a Dutch dispute, and for those whose insurer refuses to pay for an external lawyer. You will read when the free choice applies, what counts as proceedings, how far the insurer can limit costs, how disagreements are settled and how to invoke your right. For proceedings in the Netherlands in general, see our litigation attorney page.

When are you entitled to choose your own lawyer under Dutch law?

In two situations: when a lawyer or other qualified person is needed to defend, represent or serve your interests in judicial or administrative proceedings, and when a conflict of interest arises. The insurer must state this right expressly in the policy (Article 4:67(1) Financial Supervision Act (Wft)).

The Dutch rule implements EU law, which gives the insured the same right “in any inquiry or proceedings” (Article 201 Directive 2009/138/EC (Solvency II)). Outside those situations, for example in the negotiation phase before any proceedings, the insurer may handle the case with its own lawyers or claims handlers. Some insurers go further and allow a free choice as soon as there is a claim under the policy; for them the rule of Article 4:67 does not apply in the same way (Article 4:65(1)(c) and (2)(b) Wft and Article 4:67(2)).

Situation	Free choice of lawyer?	Source
Negotiation or letters before any proceedings	Not required by law; depends on the policy	Article 4:67 Wft
Court proceedings, also where representation is not compulsory	Yes	Article 4:67(1)(a) Wft; CJEU C-442/12 Sneller
Procedure before a public body that decides on dismissal	Yes, it is an “inquiry”	CJEU C-460/14 Massar
Mediation in which a court is or can be involved	Yes, it is “proceedings”	CJEU C-667/18
Conflict of interest with the insurer	Yes	Article 4:67(1)(b) Wft

What counts as proceedings under the free choice rule?

The Court of Justice interprets “inquiry or proceedings” broadly, in rulings on Article 4(1) of Directive 87/344/EEC, which Article 201 Solvency II carried over in the same words, because the right protects the insured and is of general application. It covers court cases, the procedure in which a public body authorises an employer to dismiss an employee, and judicial or extrajudicial mediation in which a court is or may become involved (C-460/14 Massar and C-667/18).

It also does not matter whether legal representation is compulsory in the proceedings concerned. In the Dutch Sneller case, the Court held that an insurer that normally uses its own staff cannot make reimbursement of a freely chosen lawyer depend on its own decision to outsource the case (C-442/12 Sneller). For commercial disputes this means: once you start or must defend court proceedings, including cases before the cantonal judge, you can choose your own lawyer.

Can the insurer limit the costs of your own lawyer?

Yes, within limits. EU law does not fully harmonise legal expenses policies: the insurer may set limits on the costs it covers, provided the free choice is not rendered meaningless (C-460/14 Massar, paragraph 27, referring to C-293/10 Stark and C-442/12 Sneller).

Many Dutch policies therefore contain a cost cap or a rate cap for an external lawyer chosen by the insured. Read the policy conditions carefully: the cap, the deductible and whether the cap applies per case or per instance. Costs above the cap are for your own account. Whether a very low cap makes the free choice illusory depends on the policy and the case; that question is decided by the court. Agree with the lawyer in advance how costs above the cap are handled.

Is your insurer refusing to pay for the lawyer you chose? Ask a Dutch lawyer to assess the policy and the refusal, because the timing of your request often decides whether the free choice applies.

What happens if you and the insurer disagree about the case?

The policy must provide for arbitration or a comparable objective procedure to decide which approach is followed when the insurer and the insured disagree about the handling of the dispute (Article 4:68(1) Wft). In practice this is often a disputes clause under which an external lawyer gives a binding opinion.

A typical disagreement is that the insurer considers the chances of success too low to start proceedings. Use the disputes procedure before you start proceedings yourself, and keep the correspondence. This rule does not apply to insurers that already give the insured a free choice of lawyer from the moment there is a claim (Article 4:68(2) Wft).

Does a business policy also give a free choice of lawyer?

Yes. Article 4:67 Wft applies to legal expenses insurance as such, not only to private policies, so a company with a Dutch business legal expenses policy has the same right. The policy must also set out the legal expenses cover in a separate contract or a separate chapter (Article 4:66 Wft).

A foreign company insured in its home country has a comparable right under the national rules implementing Article 201 Solvency II in that country. If that company becomes involved in proceedings in the Netherlands, it can ask its insurer to pay for a Dutch lawyer of its choice. Before the Dutch district court, representation by a lawyer admitted in the Netherlands is compulsory, except in cases before the subdistrict judge (kantonrechter) (Article 79 Dutch Code of Civil Procedure).

How do you invoke your free choice of lawyer?

Report the case to the insurer first, then inform it in writing which lawyer you have chosen as soon as proceedings are needed. The order matters, because most policies require prior notification of the claim.

Report the dispute to your insurer promptly and ask for written confirmation of cover.
Check the policy for the free choice clause, the cost cap, the deductible and the disputes clause.
When proceedings are started or needed, notify the insurer in writing of the lawyer you have chosen, citing Article 4:67 Wft or the policy clause.
Ask the insurer to confirm the cost cap and how invoices are submitted.
Agree with your lawyer on costs above the cap before work starts.

Practical example: a Spanish supplier sued in the Netherlands

Suppose a Spanish supplier with a Dutch subsidiary is sued by a Dutch customer for damages over late deliveries. The subsidiary has a Dutch business legal expenses policy. The insurer first handled the claim with its own lawyers, which the policy allows before proceedings.

When the writ of summons arrives, the subsidiary informs the insurer in writing that it chooses its own lawyer in Amsterdam, citing Article 4:67 Wft. The insurer accepts, subject to the cost cap in the policy. The subsidiary agrees with its lawyer how costs above the cap will be invoiced, and the case proceeds without a change of counsel later on.

When should you involve a Dutch lawyer?

When proceedings are imminent or have started, when the insurer refuses an external lawyer, and when you disagree with the insurer about the chances of your case.

MAAK Advocaten in Amsterdam acts for foreign and Dutch businesses in commercial disputes in first instance and on appeal, also when the case is funded by a legal expenses insurer. We can coordinate with your insurer about the free choice and cost cover. See also litigation and arbitration in the Netherlands.

Frequently asked questions about free choice of lawyer with legal expenses insurance

When can I choose my own lawyer under my Dutch legal expenses insurance?

When a lawyer is needed in judicial or administrative proceedings, and whenever there is a conflict of interest (Article 4:67 Financial Supervision Act). Before proceedings, the insurer may handle the case itself unless the policy gives more.

Does the free choice also apply if I do not need a lawyer in court?

Yes. The Court of Justice ruled that the right applies whether or not representation is compulsory in the proceedings concerned (C-442/12 Sneller).

Can my insurer cap the costs of the lawyer I choose?

Yes, as long as the free choice is not rendered meaningless (C-460/14 Massar, paragraph 27). Costs above the cap in the policy are for your own account.

What if my insurer thinks my case is hopeless?

The policy must contain an arbitration or comparable procedure for such disagreements (Article 4:68 Wft). Use it before you start proceedings at your own risk.