Hoge Raad, civiele kamer, arrest van 07/05/2004 Waltraud Otten / Sparkasse Bonn
Decision by national courts in the field of European Union law — ECLI:NL:HR:2004:AO4225
Date: 2004-05-07
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

82004NL0507(06)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The Rechtbank Almelo (NL) granted a leave to the enforcement of a German decision in the Netherlands. The plaintiff, a person domiciled in the Netherlands, entered an appeal against this decision based on Article 34(2) Brussels I Regulation. The court deemed the appeal inadmissible as the document instituting the contentious appeal proceedings must be in the form of a subpoena and not in the form of a request. The plaintiff entered an appeal against this decision at the Hoge Raad (NL).
The Hoge Raad states that in the Netherlands an appeal in the sense of Article 37 Brussels Convention is to be brought in the form of contentious proceedings at the Arrondissementsrechtbank (NL). The Hoge Raad further states that the Brussels Convention does not provide rules concerning the appeal proceedings. Therefore, the Hoge Raad states that Dutch procedural law is applicable, which allows for mistakes in the type of document introducing the proceedings to be corrected. The Supreme Court rules that the Brussels Convention allows for such a rectification as it results in the fact that the appeal is further dealt with in contentious proceedings. The Hoge Raad rejects the argument that the possibility of rectification would constitute an extra legal remedy or a measure which affects the aim of the Brussels Convention to create a simple and fast mechanism for the recognition and enforcement of foreign decisions. The possibility of rectification fits well into the system for the contentious phase of the enforcement procedure of the Brussels Convention which is aimed at guaranteeing the rights of the defence whilst also guaranteeing that the party which obtained the leave to the enforcement is informed of the appeal against that decision.