It is increasingly common nowadays for a Dutch company to have a dispute with a foreign party. Perhaps the Spanish counterparty does not pay your invoices or there is a dispute about the applicability of general terms and conditions with a party from Bulgaria. In extreme cases, such a dispute can lead to legal proceedings. In most cases, the foreign counterparty must then be given a subpoena. Since this concerns a non-Dutch counterparty, different rules apply with regard to the service of subpoenas than if both parties were Dutch. This blog will discuss how a subpoena should be served on a foreign counterparty within the European Union.
Regulation on serving notice
For cross-border situations in which service of a subpoena needs to take place, the European Union has created the so-called Regulation on serving notice. This regulation will be replaced by the recast Regulation on serving notice (BetVo-III) as of July 1, 2022. Under the BetVo-III, service abroad can be made in three ways, which will be discussed below.
The transmitting agency sends the writ to the receiving agency
The BetVo-III speaks of transmitting and receiving agencies. The European member states may decide for themselves which bodies these are. In the Netherlands, the bailiff is designated as the transmitting agency pursuant to article 56 (2) of the Dutch Code on Civil Procedure. In other countries, it can also be the court, for example.
The Dutch bailiff sends a copy of the writ to the receiving agency in the other member state (Article 3 BetVo-III). The writ must be translated into the language of the receiving country. Thus, if the writ is to be sent to a debtor in Sweden, a Swedish translation must be attached. It is very important to do this, because the debtor may refuse to accept the document if it is not drafted in a language he can understand (Article 12(1) BetVo-III).
Once all the documents have been drafted, they are sent to the receiving authority abroad. It is the responsibility of this body to serve the document according to the rules of the country. So the Swedish receiving agency serves the document according to the Swedish rules on service (Article 11(1) BetVo-III). The date of service is the time when service is made under Swedish law (Article 13(1) BetVo-III).
Registered letter to defendant
A second possibility of service is found in article 18 BetVo-III in conjunction with article 56 paragraph 3 of the Dutch Code on Civil Procedure. The Dutch bailiff sends the document by mail directly to the debtor abroad. There must then be a known place of residence. The writ is accompanied by a registered letter sent to the debtor. Once the writ has been served on the debtor, the bailiff receives an acknowledgement of receipt.
Claimant seeks agency in Spain
So far we have seen that only the bailiff takes the first step of service. However, this is not always necessary. You also have the possibility to find a competent authority in Spain yourself to do the service for you (Article 20 BetVo-III). In such a case, the claim against your counterparty may not exceed € 25.000,-. This again saves bailiff fees in the Netherlands, which brings us to the next topic: costs.
You may wonder what costs you may face when serving a subpoena abroad. BetVo-III answers this question as well.
As the applicant, you are obliged to pay the costs caused by assistance by the bailiff (Article 15 paragraph 2 (a) BetVo-III). Even if there is a special form of service, you bear those costs (Article 15 paragraph 2 (b) BetVo-III). Finally, you are obliged to bear the costs of translation of the documents (Article 9 paragraph 2 BetVo-III). If you win the proceedings, you can recover (part of) these costs.
Subpoena served, but which court do I go to?
If the subpoena has been served, you are not there yet. The next step is to find out which court has jurisdiction to hear your dispute. This is a matter of international jurisdiction, and the European Union has created a regulation for this purpose as well: Brussels I-bis.
The main rule is found in Article 4 Brussels I-bis: the court of the defendant's country of residence has jurisdiction. This seems rather daunting at first, but Brussels I-bis contains numerous exceptions to this rule. For example, in property claims, the court of the country where the property is located will have jurisdiction (Article 24 Brussels I-bis). However, it is always advisable to include a choice of forum clause in the contract with your counterparty. In it you agree which court is competent to take cognizance of any disputes. Article 25 Brussels I-bis makes this possible.
There are three ways in which you can serve a subpoena abroad. The Regulation on serving notice is an important tool in this respect. Once the subpoena is served, Brussels I-bis determines which court has jurisdiction (unless a choice of forum clause is included in the contract).
Want to know more?
Wolfs Advocaten is happy to help you with international disputes. Do you have questions about commercial law, transport law or other matters with an international dimension? Feel free to contact one of our lawyers.