Hoge Raad der Nederlanden
National case details
Registration ID: 11/00894
Area of law
Safeguards for access to justice
Identification of the case
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- Article 4(2)(i) Wgbz
- Article 29 Wgbz
- Article 15(1) Wet tarieven in burgerlijke zaken (Civil Cases (Fees) Act, precedessor of Wgbz)
- Article 284(1) Faillissementswet (Bankruptcy Act)
- Wet schuldsanering natuurlijke personen (Debt Management (Natural Persons) Act)
- Not the Supreme Court, but the Advocate General (F.F. Langmeijer) in his opinion referred to Article 47 EU Charter of Fundamental Rights and CJEU judgment of 22 December 2010, C-279/09 (DEB). The Supreme Court followed the Advocate General’s opinion
Summary of the case
The original applicant had filed an application to be granted statutory debt adjustment under Debt Management (Natural Persons) Act, a more debtor-friendly alternative to bankruptcy proceedings in the Netherlands. This application was rejected, both by the District Court Utrecht and the Court of Appeal Amsterdam. She subsequently challenged the rejection before the Supreme Court. The court registrar required payment of the statutory court fee of EUR 294 for natural persons with less financial means. The original applicant opposed to this payment, arguing – in short – that (i) in cases concerning an application to be granted statutory debt adjustment, there is a statutory exemption from paying a court fee in first instance, and (ii) that this exemption should be extended to appeal and cassation appeal, also when the application is initially rejected, because (iii) there should be as few financial impediments as possible to go to court, in order to (iv) guarantee the right of access to court. Thus, the question was whether the statutory exemption for the application in first instance could be extended up until the highest instance, i.e. the legal remedy of cassation appeal.
- Civil judicial enforcement
The Advocate General considered that restrictions of the right of access to court are allowed under Article 6 ECHR. Article 6 ECHR does not include a right to the legal remedies of appeal and cassation appeal, but if those legal remedies are available, Article 6 ECHR applies equally. Article 6 ECHR can be directly invoked by individual litigants in the Dutch legal system (on the basis of Article 94 of the Dutch Constitution). The Advocate General then went on to cite the case law of the European Court of Human Rights (ECtHR) to conclude that the right of access to court does not imply that court proceedings should be free. Whether the “very essence” of the right of access to court is impaired, depends on several factors. The Advocate General observed that the CJEU concurs with the ECtHR, and referred in this respect to Article 47 of the Charter and the CJEU’s judgment in the DEB case (para. 2.15).
The court fees in the Netherlands are fixed and relatively low for natural persons with less financial means. The fees are higher in appeal and cassation appeal, to provide an incentive to litigants to think about their procedural choices, not to actually obstruct them. By the time litigants reach the Supreme Court, they have already received a decision on the merits twice (in first instance, and in appeal). However, according to the Advocate General, EUR 294 may be an excessive amount of money for persons who file an application to be granted statutory debt adjustment. Therefore, in his view, the statutory exemption should indeed be extended to appeal and cassation appeal. The extension of the scope of protection is based on a general interpretation of the statutory exemption; the original applicant had not argued that an exception should be made in light of her personal circumstances.
The Supreme Court followed the Advocate General’s opinion, but merely referred to the right of access to court as guaranteed by Article 6 ECHR (para. 2.4). It considers that persons who file an application for statutory debt assessment will have even less financial means than ‘normal’ persons who are entitled to welfare. [Note: the Advocate General had submitted that it did not make sense to award special assistance (legal aid) for the payment of court fees, when an exemption or waiver can be obtained.] Thus, those persons – including the applicant in the present case – are unable to pay the court fees and should be exempted in first instance as well as in appeal and cassation appeal. That the legislator intended to provide an incentive to prevent unnecessary litigation does not lead to a different conclusion.
Role of the Charter and role of the general principles on enforcement
Due to the focus on access to justice, the Supreme Court decided that court fees for litigants with less financial means are to high. The Advocate General cited the standard case of the ECHR in which it explains the relationship between art. 6 ECHR and court fees (ECHRM 19 June 2011 (Kreuz/Poland). The A-G then remarks the European Court of Justice take in the same position as the ECHR concerning subsidised legal aid, referring to Deb (22 December 2010, C-279/09). See reasoning above for further elaboration on how the Supreme Court came to their decision.
- Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
- Explicit reference to Art. 6 ECHR
Elements of judicial dialogue
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- CJEU C-279/09, DEB
The Advocate General and, subsequently, the Supreme Court used a reference to the right of access to court to extend the scope of protection of a statutory exemption from paying court fees.
Additional notes on the decision
There are quite a few other references to the DEB case in Dutch case law, almost exclusively in administrative and tax cases. We have found one judgment, of the Court of Appeal Arnhem-Leeuwarden, which refers to Article 47 of the Charter in relation to court fees in civil cases. Article 6 ECHR and Article 47 of the Charter had been invoked by the party who had lodged the appeal; he claimed to be unable to pay the court fee of EUR 308. The Court of Appeal only referred to Article 6 ECHR and held that the claim of inability to pay had been insufficiently substantiated.
[Court of Appeal Arnhem-Leeuwarden judgment of 3 July 2014, ECLI:NL:GHARL:2014:5450]
In a (withdrawn) legislative proposal to raise the court fees (in civil cases), the Dutch legislator referred to the right of access to court as enshrined in both Article 6 ECHR and Article 47 of the Charter. It was nevertheless observed that the scope of Article 47 of the Charter was not limited to “civil rights and obligations” and “criminal charges”, but that it only applied when the Member States are implementing EU law (cf. Article 51 of the Charter). The Dutch legislator referred not only to the ECtHR’s case law, but also to the DEB case.
[Parliamentary Papers 2011/2012, 33 071, Nr. 3, p. 4 and pp. 10-11]
The outcome of the case is consistent with the CJEU’s judgment in DEB, insofar as it protects the right of access to court and relates to the costs of proceedings. The Supreme Court took account of the subject-matter of the litigation, the costs of the proceedings in respect of which the court fees must be paid, whether or not those court fees might represent an “insurmountable obstacle to access to the courts”, and the ability of the applicant to obtain the required amount of money.
[The Advocate General had also referred to the case law of the ECtHR, inter alia: Kreuz/Poland (appl.no. 28249/95) and Teltronic-CATV/Poland (appl.no. 48140/99).]
In a later judgment, The Supreme Court explicitly refers to the Advocate General’s opinion discussed above to conclude that the right of access to court (Article 6 ECHR) is not absolute and may be subject to limitations. It held that an inability to pay had not been demonstrated in the individual circumstances of the case.
[Supreme Court judgment of 27 January 2012, ECLI:NL:HR:2012:BV2020]