What are preliminary ruling proceedings?

When civil proceedings give rise to a question of law that involves many different rights of action based on the same or similar facts, or the resolution of numerous other disputes arising from similar facts, a court may refer it to the Supreme Court.

The Supreme Court then answers that question by issuing a preliminary ruling. The lower court can then issue a judgment on the matter in question, taking the Supreme Court’s ruling into account. That preliminary ruling also serves as a guideline for similar cases involving the same legal question.

Reference for a preliminary ruling

A court may decide, on its own initiative or at the parties’ request, to refer a question to the Supreme Court for a preliminary ruling. However, that court must first give the parties the opportunity to comment on the intention to refer questions to the Supreme Court for a preliminary ruling. The parties will also be given the opportunity to comment on the substance and scope of those questions.

The court then issues an interim decision in which it presents the positions taken by the parties, also setting out the questions to be referred, the subject matter of the dispute and the facts established by that court. The court then stays the case until it has obtained the Supreme Court’s preliminary ruling.

Contact

Philip Fruytier

Attorney-at-Law Partner

Jan-Paul Heering

Attorney-at-Law Partner

Rieme-Jan Tjittes

Attorney-at-Law Partner

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The proceedings before the Dutch Supreme Court

There are several stages to the preliminary ruling proceedings before the Supreme Court.

After the Supreme Court receives a reference for a preliminary ruling, it briefly examines whether the questions referred are suited to being answered in the form of a preliminary ruling. The Supreme Court is advised by the Procurator General in this regard.
The parties are then allowed six weeks to submit written comments. These must be filed with the Supreme Court by a lawyer.
After this written phase, the documents are sent to the Procurator General’s Office at the Supreme Court, after which, in most cases, the Advocate-General issues an opinion on behalf of the Procurator General. The parties are then allowed fourteen days to respond to this opinion.
After the opinion has been issued, the Cause List Judge sets a date for the decision. At this point, the Supreme Court may rephrase the questions referred to enable adequate answers to be given to them. If this rephrasing is sufficiently substantial, the parties will be given the opportunity to comment on it.

The Supreme Court maintains a list of preliminary ruling proceedings pending before it. It describes the status of the proceedings in addition to setting out the questions referred for a preliminary ruling.

Time limit for issuing preliminary ruling proceedings

The Supreme Court places high priority on preliminary ruling proceedings. On average, they take between six to twelve months. However, no fixed deadlines apply. After the Supreme Court has issued its decision, the District Court or Court of Appeal proceedings can then continue, taking account of the preliminary ruling.