We ain’t doing brain surgery here. But we are tending to a sprained ankle of sorts, and if you don’t tend to it properly, the pain gets worse down the road. Serving process in the Netherlands is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. At least, noty if you want it to work. Instead, you have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene (or… here’s how it’s done in The Netherlands):
Article 5 Service
- Translate the documents. The Netherlands’ declaration to Article 5(3) does not require translation, and this is perfectly logical, given that the Dutch learn English non-stop beginning at the age of five (I have yet to meet a Dutchman who doesn’t speak English as well as I do). Translate the documents anyway. Even if the defendant speaks flawless English—and most of them do—omitting translated documents may prompt local officials (gerechtsdeurwaarders*) to refuse service. If the gerechtsdeurwaarder is not familiar with the Art. 5(3) declaration, he/she may offer the defendant the opportunity to refuse service under an EU regulation. Although this regulation does not apply to service of process from non-EU nations, the gerechtsdeurwaarder’s statement of non-service is dispositive, and requires a reboot of the whole procedure.
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the Central Authority, who will then instruct a gerechtsdeurwaarder to serve the documents.
- Sit tight. It may take a while—likely 3 months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, depending on where you are, but it’s a bad idea anyway. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
- The Netherlands also allows direct access to a gerechtsdeurwaarder. This method avoids having to wait for processing by the Central Authority, often cutting wait time considerably and without significant additional cost. My gerechtsdeurwaarder does not advise defendant’s about the inapplicable EU regulation, so we can usually serve without translation.
Pretty straightforward options in the Netherlands (noting that Holland is only a part of the Kingdom), whose declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* The gerechtsdeurwaarder is a specialized professional in the civil law system. A qualified attorney, whose practice is limited to procedural matters on behalf of the court, the gerechtsdeurwaarder serves process in Dutch actions and is tasked with executing judgments. A rough analog in common law systems: a combination between a bailiff and a sheriff, but with the same level of training as a practicing attorney. The gerechtsdeurwaarder’s counterpart in French-speaking jurisidctions: the huissier de justice. In German-speaking areas: the deurwaarder (although, to be sure, this won’t help much, as Germany, Switzerland, and Austria all prohibit access to judicial officers for service requests).
[Author’s note: I’ve had the incredible pleasure of visiting the Netherlands on several occasions—as a boy during my dad’s three-year tour of duty in Belgium with the U.S. Army, during an all-too brief whirlwind as a college student (no recreational herbs, if you can believe it), and in both 2016 & 2018 on side trips during a CLE group tour in Paris. By the way, if you need CLE hours, holy socks, Batman. Get them in Europe and justify the trip as a business expense. You might even get to hear me lecture on the very topic of this column.]