Rechtbank Almelo, sector kanton, locatie Enschede, uitspraak van 27/03/2009 299819 EJ VERZ 1562/09
Decision by national courts in the field of European Union law — ECLI:NL:RBALM:2009:BH9186
Date: 2009-03-27
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82009NL0327(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
An employer domiciled in the Netherlands had an employee domiciled in Germany. The employer planned to end the employment relationship via a judicial dissolution pursuant to Article 7:685 Burgerlijk Wetboek (Dutch civil code). However, it found itself hampered in following its normal protocol before the Dutch magistrate by Article 20(1) Brussels I. It considered going to the German employment court an unwelcome setback. The employer ceased issuing paychecks to the employee in order to force a cause of action before the local Dutch employment court. The employee filed a motion for provisional measures with the Kantongerecht of Enschede (NL) requesting a reinstatement of her wages. The employer responded to that motion by petitioning for a dissolution of the employment relationship pursuant to Article 7:685 Burgerlijk Wetboek. Both petitions were heard simultaneously by the court. The employee contested the jurisdiction of the court. The employer cited the jurisdiction over counter-claims under Article 20(2) Brussels I. The employee objected to the behaviour of the employer as abuse of process.
The Kantongerecht of Enschede declines to follow the legal argument of the employer.
Article 20(2) Brussels I opens the possibility of a counter-claim.
Though the petitions of the employee and the employer’s petition were heard simultaneously by the court, this does not mean that these two completely separate proceedings should be melded into one. In contrast to a temporary court order issued under expedited procedures, a judicial dissolution pursuant to Article 7:685 Burgerlijk Wetboek is of a permanent nature and cannot be challenged on appeal.