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Proceedings on the merits (bodemprocedure) are civil proceedings in which a Dutch court decides the substance of a dispute: the facts and the law. Most start with a writ of summons (Article 111 Dutch Code of Civil Procedure, DCCP). Unlike summary proceedings (kort geding, Article 254 DCCP), they end in a final decision that binds the parties once no ordinary appeal remains (Article 236 DCCP).
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What are proceedings on the merits (bodemprocedure)?
Proceedings on the merits (in Dutch: ‘bodemprocedure’) are the standard, full procedure before a civil court. The “merits” of a case are its substance: whether the claim is well-founded in fact and in law. A decision on the merits is therefore different from a decision on a procedural question, such as jurisdiction, and from a provisional decision in summary proceedings (‘kort geding’).
Most proceedings on the merits start with a writ of summons (dagvaarding); some matters start with a petition (verzoekschrift) because the law so provides (Articles 78 and 261 DCCP). The rules for summary proceedings are discussed in our article on the New Unified Process Regulation for Short Proceedings in Dutch Courts.
How do proceedings on the merits differ from summary proceedings?
Summary proceedings in the Netherlands (kort geding) are available in all urgent matters in which, given the interests of the parties, an immediate provisional measure is required. The preliminary relief judge (voorzieningenrechter) decides (Article 254(1) DCCP).
In summary proceedings, the judge gives a provisional assessment and weighs the interests of the parties. There is usually no room for extensive evidentiary proceedings, such as a separate witness hearing. Typical examples are an order to continue or stop performing a commercial agreement, such as a distribution or agency agreement. The decision does not prejudice the main proceedings (Article 257 DCCP): a party can still start proceedings on the merits. An appeal against a judgment in summary proceedings must be lodged within four weeks (Article 339(2) DCCP).
Proceedings on the merits take longer, but they lead to a final decision. Once a judgment can no longer be challenged by ordinary legal remedies (in kracht van gewijsde), its decisions on the legal relationship in dispute are binding between the same parties in later proceedings (Article 236(1) DCCP).
In proceedings on the merits, the parties exchange written statements, the court usually holds an oral hearing, and the court can order the taking of evidence, such as the hearing of witnesses. The court may base its decision only on facts and rights that were put forward in the proceedings and established in accordance with the rules of evidence (Article 149(1) DCCP).
In the district court, a party can in principle only litigate through a lawyer (advocaat). The exceptions are cases before the subdistrict court (kantonrechter), which is part of the district court, where parties can litigate in person, and the defendant in summary proceedings, who may also appear in person, but not through a representative who is not a lawyer (Article 255(1) DCCP; Article 79 DCCP). The subdistrict court hears, among other things, claims of up to €25,000 including interest up to the date of the writ (unless the underlying legal title exceeds that amount and is disputed) and, regardless of the amount, cases about employment, agency, rent and consumer sale agreements (Article 93 DCCP).
Which Dutch courts hear proceedings on the merits?
Civil proceedings on the merits start at first instance at one of the district courts (rechtbanken), either before the civil section or before the subdistrict court (Article 93 DCCP). An appeal goes to a court of appeal (gerechtshof), and an appeal in cassation on points of law to the Supreme Court (Hoge Raad).
Dutch civil procedure distinguishes summary proceedings (kort geding) from regular court proceedings on the merits. Criminal cases follow separate rules in the Code of Criminal Procedure and are not discussed here.
In proceedings on the merits, the court decides the dispute on the basis of the facts established and Dutch law, at first instance and, if a party appeals, again on appeal.
Each party must state the facts on which it relies. The party that invokes the legal consequences of facts or rights it alleges bears the burden of proving them, unless a special rule or the requirements of reasonableness and fairness lead to a different allocation (Article 150 DCCP).
Which role does the litigator play?
Proceedings on the merits follow a fixed sequence: writ of summons, statement of defence, an oral hearing or a further written round, and judgment. The claimant’s lawyer drafts the writ; a bailiff serves it on the defendant (Article 45 DCCP), and the claimant then files it with the court registry (Article 125 DCCP).
Foreign companies should note that, outside the subdistrict court, they can only litigate through a Dutch lawyer (Article 79 DCCP). On appeal, the parties can only litigate through a lawyer (Article 353(1) DCCP).
The writ states the claim and its grounds. The defendant answers in a statement of defence, in which it may also bring a counterclaim (eis in reconventie) (Article 136 DCCP).
After the statement of defence, the court orders an oral hearing, unless it considers the case unsuitable for one (Article 131 DCCP). If no oral hearing is ordered, the claimant can file a reply (repliek) and the defendant a rejoinder (dupliek) (Article 132 DCCP).
The court then gives a final judgment or an interim judgment, for example ordering a party to prove certain facts. A party that disagrees with the final judgment can appeal (see below).
How do you draft a writ of summons?
A writ of summons (dagvaarding) is a bailiff’s writ (exploot) (Article 111(1) DCCP). It summons the defendant to appear before a named court on a fixed docket date (roldatum).
Besides the general details of a bailiff’s writ (Article 45(3) DCCP), the writ must state, among other things, the claimant’s chosen address in the Netherlands, the lawyer acting for the claimant (where a lawyer is required), the claim and its grounds, the court and the docket date, and the consequences if the defendant does not appear (Article 111(2) DCCP).
The writ must also state the defences the defendant has already raised against the claim and the grounds for them, and the evidence and witnesses the claimant can offer to support the disputed grounds of the claim (Article 111(3) DCCP). Documents should, as far as possible, be submitted together with the writ (Article 87(6) DCCP).
The ordinary period between service of the writ and the docket date is at least one week (Article 114 DCCP). The claimant must file the writ with the court registry no later than the last day on which the registry is open before the docket date. Otherwise the case is no longer pending, unless a valid repair writ is served within two weeks after the docket date (Article 125(2) and (5) DCCP).
How do you draft a statement of defence?
If the defendant appears, it submits a reasoned statement of defence (conclusie van antwoord) on the first docket date or on a later date set by the court, after paying the court fee (Article 128(2) DCCP). If the defendant does not appear, the court gives judgment by default (verstek) and allows the claim, unless it considers the claim unlawful or unfounded (Article 139 DCCP).
The defendant must raise all preliminary defences together with its defence on the merits; preliminary defences that are not raised lapse (Article 128(3) DCCP). The statement of defence must also state the evidence and witnesses the defendant can rely on (Article 128(5) DCCP).
Dutch law has no US-style discovery and no depositions. A party to a legal relationship can, however, claim access to, a copy of or an extract from specific data about that relationship if it has sufficient interest, unless the holder has a right of non-disclosure or there are compelling reasons against it (Articles 194 and 195 DCCP). Before proceedings are pending, a party can ask the court for provisional evidence-taking, such as a provisional witness hearing or expert report (Article 196 DCCP). At the oral hearing, the court can also explore a settlement (Article 87(2)(c) DCCP).
Appeal proceedings are possible against most first-instance judgments, unless the claim did not exceed €1,750 (Article 332(1) DCCP). The appeal must be lodged within three months of the judgment (Article 339(1) DCCP). A judgment on appeal is not necessarily final: an appeal in cassation to the Supreme Court can be lodged within three months (Articles 398 and 402 DCCP).
How does the court reach its judgment?
The court decides on the basis of the facts that were put forward and established in the proceedings. Facts alleged by one party and not, or not sufficiently, disputed by the other must be treated as established, unless accepting them would lead to a legal consequence that is not at the free disposal of the parties (Article 149(1) DCCP).
Three rules of evidence are central:
- Burden of proof: the party that invokes the legal consequences of facts it alleges must prove them, unless a special rule or reasonableness and fairness requires otherwise (Article 150 DCCP).
- Free evidence: evidence can be provided by any means, and the court is free to assess it, unless the law provides otherwise (Article 152 DCCP).
- Common knowledge: facts of common knowledge and general rules of experience need no proof (Article 149(2) DCCP).
In its judgment, the court can, for example, order a party to perform (Article 3:296 Dutch Civil Code, DCC), award damages or declare the parties’ rights (Article 3:302 DCC). The losing party is in principle ordered to pay the costs of the proceedings (Article 237 DCCP). On request, the court can declare the judgment provisionally enforceable, even if an appeal is lodged (Article 233 DCCP).
Which rules govern proceedings on the merits?
Civil proceedings on the merits are governed by the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, DCCP or Rv). The courts also apply national procedural rules (procesreglementen) on practical matters such as deadlines and postponements.
In principle, the court does not investigate the facts on its own initiative: it decides on the facts the parties put forward (Article 149(1) DCCP), although it can ask the parties for information and order the taking of evidence. The general rules of evidence start at Article 149 DCCP.
Dutch law has no general pre-action protocol. Under substantive law, however, a creditor often needs to give notice of default first. Where performance is still possible, damages for delay and termination of a contract generally require that the debtor is in default (verzuim) (Articles 6:74(2) and 6:265(2) DCC). Default usually arises after a written notice of default setting a reasonable period for performance, if performance does not follow within that period (Article 6:82(1) DCC).
A judgment must state the grounds for the decision, including the facts on which it is based (Article 230(1)(e) DCCP).
Hearings are public, although the court can order a hearing behind closed doors on grounds set out in the law, such as the protection of the parties’ private lives (Article 27(1) DCCP).
How is the Dutch civil court system organised?
The DCCP regulates jurisdiction, the start of proceedings, evidence, judgments, appeals and enforcement. Book 4 of the DCCP regulates arbitration, a private alternative to the courts that requires an arbitration agreement (Article 1020 DCCP).
Civil cases are heard at three levels: the district courts (rechtbanken), including the subdistrict court for the cases listed in Article 93 DCCP; the courts of appeal (gerechtshoven); and the Supreme Court (Hoge Raad), which reviews only whether the law was correctly applied and whether essential procedural rules were observed (Article 79 Judiciary Organisation Act). At the Supreme Court, cases are decided by five or, in suitable cases, three justices (Article 75(2) and (3) Judiciary Organisation Act); in the district courts and courts of appeal, cases are decided by professional judges, sitting alone or in a chamber of three (Article 6 Judiciary Organisation Act). There is no jury in Dutch civil cases: in American terms, every civil trial is a bench trial.
International commercial disputes can be heard in English by the Netherlands Commercial Court in Amsterdam. This requires that the Amsterdam court has jurisdiction, that the dispute is international and concerns a legal relationship at the parties’ free disposal, and that the parties have expressly agreed to it in writing; subdistrict court cases are excluded (Article 32a(1) DCCP).
How do you start proceedings on the merits?
Most proceedings on the merits start with a writ of summons that a bailiff serves on the defendant (Articles 45 and 111 DCCP). Some matters, specified by law, start with a petition (verzoekschrift) filed with the court instead (Article 261 DCCP).
The parties submit the documents they rely on as far as possible with the writ and the statement of defence, and at the latest ten days before the oral hearing, unless the law sets a different deadline (Article 87(6) DCCP). At the oral hearing, the court can ask the parties for information, try to bring about a settlement and give directions for the rest of the proceedings (Article 87(2) DCCP).
If the parties settle at the hearing, the court draws up an official record (proces-verbaal) setting out the obligations the parties accept. The record is issued in enforceable form (Article 89(1) DCCP).
How long proceedings take depends on the court, the complexity of the case and whether evidence must be taken; the law sets no overall time limit. A court fee (griffierecht) is charged from each claimant and each defendant who appears, for each instance (Article 3(1) Court Fees in Civil Cases Act). The amount follows from the table annexed to that Act (Article 3(5)).
How do you appeal a judgment on the merits?
A party can appeal against a first-instance judgment to the court of appeal, unless the claim did not exceed €1,750 (Article 332(1) DCCP). The time limit is three months from the date of the judgment, and four weeks for a judgment in summary proceedings (Article 339(1) and (2) DCCP).
Dutch appeal is not limited to fixed grounds. In principle, the court of appeal assesses the dispute again, within the limits of the objections (grieven) the appellant raises against the judgment. The main steps are:
| Step | What it involves |
|---|---|
| Statement of appeal | The appellant sets out its objections against the judgment in its statement of appeal (conclusie van eis) (Article 347(1) DCCP). |
| Statement of defence on appeal | The respondent replies and can lodge a cross-appeal (incidenteel beroep), even after the appeal period has expired; it must do so in its statement of defence (Article 339(3) DCCP). |
| Cassation | Against the judgment of the court of appeal, an appeal in cassation can be lodged with the Supreme Court within three months (Articles 398 and 402 DCCP). The Supreme Court is bound by the facts as established in the judgment under appeal (Article 419(3) DCCP). |
On appeal, the parties can only litigate through a lawyer, and no counterclaim can be brought (Article 353(1) DCCP). The costs rules of the first instance apply accordingly, so the losing party on appeal is in principle again ordered to pay the costs.
An appeal suspends the enforcement of the judgment, unless the judgment was declared provisionally enforceable (Article 350(1) DCCP). A party that wants to enforce a first-instance judgment despite an appeal should therefore ask for a provisional enforceability order in the first instance (Article 233 DCCP).
How is evidence taken in proceedings on the merits?
The court orders a witness hearing where witness evidence is permitted by law and a party has offered to prove disputed facts that may be decisive for the case (Article 166(1) DCCP). Evidence can be provided by any means, unless the law provides otherwise (Article 152(1) DCCP).
The main ways of providing evidence in proceedings on the merits are:
- Documents, which the parties submit with their written statements as far as possible (Article 87(6) DCCP), including documents obtained through a claim for access to specific data (Article 194 DCCP);
- Witnesses, heard at the oral hearing with the court’s permission or at a separate hearing (Articles 87(3) and 166 DCCP);
- Expert evidence and inspection, which the court can also order before proceedings as provisional evidence-taking (Article 196 DCCP).
Where there is a well-founded fear that evidence will be concealed or lost, a party can ask the preliminary relief judge for leave to levy a conservatory attachment to protect evidence (Article 205 DCCP). The judge assesses the request summarily.
Can the parties settle during proceedings on the merits?
Yes. The parties can settle at any stage, and at the oral hearing the court can try to bring about a settlement (Article 87(2)(c) DCCP).
A settlement reached at the hearing is recorded in an official record that is issued in enforceable form (Article 89(1) DCCP). The parties can also withdraw the case after a settlement out of court.
A settlement agreement (vaststellingsovereenkomst) binds the parties, also where it deviates from the previous legal position (Article 7:900(1) DCC).
Which alternatives to a full trial exist?
Instead of, or alongside, proceedings on the merits, parties can use summary proceedings, a settlement, mediation, binding advice or arbitration.
Dutch law is codified. A court may not decide cases by way of a general rule (Article 12 General Provisions Act), so there is no formal doctrine of binding precedent. In practice, the lower courts follow the case law of the Supreme Court, and lawyers argue from the statute and that case law.
Parties can settle at any time; a settlement out of court does not need the court’s approval. Mediation is a voluntary process in which a neutral mediator helps the parties negotiate; it only leads to a binding result if the parties sign a settlement agreement.
Arbitration requires an arbitration agreement, which can be concluded before or after a dispute arises (Article 1020(1) and (2) DCCP). If a party nevertheless starts court proceedings, the court must decline jurisdiction if the other party invokes the arbitration agreement before submitting any other defence, unless the agreement is invalid (Article 1022 DCCP).
How are Dutch commercial disputes resolved?
Commercial disputes in the Netherlands are resolved by negotiation, mediation, binding advice, arbitration or court proceedings.
Arbitration is a private procedure in which one or more arbitrators give a binding award. It cannot lead to legal consequences that are not at the free disposal of the parties (Article 1020(3) DCCP). Once an award can no longer be challenged by an arbitral appeal (in kracht van gewijsde), its decisions on the legal relationship in dispute have the force of res judicata in other proceedings between the same parties, with effect from the day the award was made (Article 1059(1) DCCP). Enforcement in the Netherlands requires leave of the preliminary relief judge (Article 1062(1) DCCP). Mediation is a voluntary process with a neutral third party, who does not decide the dispute.
Court proceedings remain available whenever the parties have not agreed on arbitration. Which route fits depends on the contract, the amount at stake, the need for speed and the place where a decision must be enforced.
Frequently asked questions about proceedings on the merits in the Netherlands
What are the merits of a case?
The merits of a case are its substance: whether the claim is well-founded in fact and in law. A decision on the merits settles the dispute itself, as opposed to a decision on a procedural question (such as jurisdiction) or a provisional decision in summary proceedings. Once it can no longer be challenged by ordinary legal remedies, it binds the parties (Article 236 DCCP).
What is the difference between a bodemprocedure and a kort geding?
A kort geding (summary proceedings) gives a provisional measure in an urgent matter (Article 254 DCCP) and does not prejudice the main proceedings (Article 257 DCCP). A bodemprocedure (proceedings on the merits) is the full procedure, with written statements, an oral hearing and, where needed, the taking of evidence, ending in a final decision.
Is a Dutch trial on the merits a bench trial?
In American terms, yes. Dutch civil cases have no jury; they are decided by professional judges, sitting alone or in a chamber of three (Article 6 Judiciary Organisation Act); at the Supreme Court, by five or three justices (Article 75 Judiciary Organisation Act).
Are there depositions in Dutch proceedings?
No. Dutch law has no depositions or US-style discovery. A party can claim access to specific data about a legal relationship to which it is a party (Article 194 DCCP), ask for provisional evidence-taking such as a provisional witness hearing (Article 196 DCCP), and offer witness evidence in the proceedings (Article 166 DCCP).
Can a judgment on the merits be appealed?
Usually, yes. An appeal to the court of appeal must be lodged within three months (Article 339(1) DCCP), unless the claim did not exceed €1,750 (Article 332(1) DCCP). Against the judgment of the court of appeal, an appeal in cassation on points of law can be lodged with the Supreme Court within three months (Articles 398 and 402 DCCP).
Primary sources
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Articles 27, 32a, 45, 78, 79, 87, 89, 93, 111, 114, 125, 128, 131, 132, 136, 139, 149, 150, 152, 166, 194, 195, 196, 205, 230, 233, 236, 237, 254, 257, 261, 332, 339, 347, 350, 353, 398, 402, 419, 1020, 1022, 1059 and 1062
- Dutch Civil Code (Burgerlijk Wetboek): Articles 3:296, 3:302, 6:74, 6:82, 6:265 and 7:900
- Judiciary Organisation Act (Wet op de rechterlijke organisatie): Articles 6 and 79
- Court Fees in Civil Cases Act (Wet griffierechten burgerlijke zaken): Article 3
- General Provisions Act (Wet algemene bepalingen): Article 12
What are the key points on proceedings on the merits?
Proceedings on the merits are the full Dutch civil procedure. They usually start with a writ of summons, lead to a final decision on the facts and the law, and can be followed by an appeal and an appeal in cassation.
Summary proceedings are faster but only provisional. Arbitration is an alternative only if the parties have agreed to it.
For a wider overview of the courts, costs and procedures, see our page on litigation in the Netherlands.
