NETHERLANDS Law and Practice Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
1. Legal System 1.1 Legal System and Judicial Order
Judicial System for Administrative Cases As in civil and criminal cases, district courts have juris - diction in administrative cases, in principle, provided that the applicable complaints procedure with the respective administrative body has been completed first. There are a number of competent courts for appeals – which court has jurisdiction to handle the appeal depends on the type of case. Most appeals are heard by the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ), which in most cases is the highest court for matters of administrative law in the Netherlands. A final appeal to the Supreme Court is only possible in tax cases. Unlike in other countries, judicial bodies in the Neth - erlands do not pass judgment on the constitutionality of legislation. Based on a recent decision in the Dutch parliament, the constitutionality of legislation will in the future be dealt with by a separate commission of the parliament. 2. Restrictions on Foreign Investments 2.1 Approval of Foreign Investments Approval The approval requirements in the Netherlands have always been rather limited. As a consequence of the EU FDI Screening Regulation (Regulation (EU) 2019/452), which entered into force in 2019 this changed. Certain sectors and industries are regulated regardless of the The Electricity Act, the Gas Act and, since 1 October 2020, the Telecommunications Act require notifica - tion to the Dutch Ministry of Economic Affairs (and Climate Policy) of any change of control with respect to an electricity, gas or telecommunications company. This screening obligation applies to any change of control that leads to a change of “predominant con - trol” in any of the above sector-specific (electricity, gas or telecommunications) companies, regardless of the identity of the investor. A transaction triggering a change of control may be prohibited or be subject to certain conditions for reasons of public safety or nationality or home state of the investor. Electricity, Gas, Drinking Water and Telecommunications Act
Like in many other EU countries, the legal system of the Netherlands is a civil law system. While legislation is the primary source of law, precedents developed in case law play an important role, as do the principles of reasonableness and fairness. In addition to its own domestic legal system, the legal framework of the EU applies in the Netherlands. Judicial System for Civil and Criminal Cases Eleven district courts ( rechtbanken ) deal with civil and criminal cases, and there are four courts of appeal ( gerechtshoven ). For civil and criminal cases, the Supreme Court of the Netherlands ( Hoge Raad der Nederlanden ) is the highest instance, but it can over - turn judgments of the courts of appeal on limited and specific legal grounds only, without reviewing the facts of a case. Ranking high in The World Bank’s Rule of Law Index, the Dutch legal system is considered one of the most efficient civil law systems in the world. Urgent matters may be heard in summary proceedings, in which judg - ments are rendered in a timeframe of a few weeks or even a few days. For certain areas of law, the Nether - lands has established courts with specific expertise. The following courts are most relevant in an interna - tional business law context: • the Netherlands Commercial Court, which allows parties to litigate in the English language entirely (from writ of summons to court hearing to judg - ment) in any international commercial dispute; • the Enterprise Court ( Ondernemingskamer ) of the Amsterdam court of appeal, which has exclusive jurisdiction over certain matters relating to corpo - rate law; • the Maritime Court of the Rotterdam district court, which allows parties to litigate partly in English; and • a chamber of the district court of The Hague, spe - cialised in intellectual property law, which allows parties to litigate partly in English.
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