NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
6.7 Consequences of a Respondent’s Non- Compliance A respondent that fails to comply with the terms of an injunction may face the same consequences as those suffered for not complying with a regular judgment. It is common to demand that the requested interim relief is subject to a penalty.
The court may, as immediate relief for the benefit of a holder of intellectual property rights, issue an injunc- tion against an infringing party so that imminent infringement is prevented, or incurred infringement is ended (Section 1019e, DCCP). 6.4 Liability for Damages for the Applicant Due to its preliminary nature, enforcement of judg- ments in preliminary relief proceedings might be unlawful if the executor does not succeed in proceed- ings on the merits. The executor is then liable for the damages suffered by the opposing party as a conse- quence of the enforcement. The same applies to the party that has levied a pre-judgment attachment. For this reason, the court can allow the enforcement of a judgment or the levy of a pre-judgment attachment on the condition that security is furnished (Section 233 (3) DCCP and Section 701, DCCP, respectively). 6.5 Respondent’s Worldwide Assets and Injunctive Relief The Dutch legal system does not as such provide for injunctive relief against worldwide assets of the respondent. However, under the Brussels I Regulation Recast a party can apply to the Dutch court for a cross-border provisional or protective measure, provided that this measure would also be within the jurisdiction of the proceedings on the merits of the case. If this concerns an ex parte order, this can only be enforced in other EU member states after the decision has been pro- nounced. Accordingly, the practical relevance of this possibility is limited. Additionally, a European pre-judgment attachment can be levied on bank accounts pursuant to the Euro- pean Account Preservation Order (EAPO). 6.6 Third Parties and Injunctive Relief Provisional and protective measures may only be obtained in respect of parties that are involved in pro- ceedings. If they have sufficient interest, third parties who fear the violation of their rights may join or inter- vene in proceedings between other parties to protect their rights (see 4.4 Requirements for Interested Par- ties to Join a Lawsuit ).
7. Trials and Hearings 7.1 Trial Proceedings
The Dutch legal system distinguishes between civil proceedings that are initiated by a summons ( dag- vaarding ) and by an application ( verzoekschrift ). The law dictates which type of proceedings will be appli- cable. Both proceedings are largely conducted in writ- ing. In proceedings commenced by a summons, a claim- ant sets out its claim in a summons which is conse- quently served to the defendant by a bailiff (see 3.5 Rules of Service ). The defendant responds in a state- ment of defence within six weeks. A defendant may lodge a counterclaim in its statement of defence after which the original claimant has six weeks to respond to the counterclaim in a statement of defence in counterclaim. After the written round of arguments, the court will usually order an oral hearing (Section 131, DCCP). Alternatively, the court can proceed to a second written round (reply and rejoinder). An oral hearing can then be ordered upon the request of (one of) the parties (Section 87 (8), DCCP). In proceedings commenced by an application, a peti- tioner files an application with a district court. The court will usually order an oral hearing (Section 279 DCCP). Any interested party may submit a statement of response to the court prior to the hearing (Sec- tion 282 DCCP). In both proceedings the court may request information, allow parties to substantiate their claims and applications, attempt an out-of-court set- tlement or discuss case management during the hear- ing.
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