HENKEL NEDERLAND B.V. v. THE NETHERLANDS
Inadmissible
Elisabeth Palm
The applicant is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid, “B.V.”) having its registered seat in Nieuwegein, the Netherlands. It is represented before the Court by Mr G.J.H. van Hoof, a lawyer and professor of International Law. The respondent Government are represented by their Agent, Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 February 1986, the limited liability company Viho B.V. instituted civil proceedings before the Regional Court (Arrondissementsrechtbank) of Amsterdam against the applicant company for alleged breach of contract (wanprestatie) claiming, inter alia, damages to an amount of 60,504.60 NLG (Netherlands guilders). On 12 March 1986, Viho B.V. submitted its statement of claim (conclusie van eis). In its statement of defence (conclusie van antwoord), submitted on 2 July 1986, the applicant company contested Viho B.V.’s claim. By interim judgment of 20 August 1986, the Regional Court ordered the parties’ appearance (comparitie van partijen) at a hearing scheduled for 13 October 1986 in order to clarify certain issues and to examine the possibilities for a settlement (minnelijke schikking). In its interlocutory judgment of 13 October 1986, following a hearing held on the same day, the Regional Court invited the applicant company to prove allegations made. Pursuant to this invitation, two witnesses for the applicant company were heard (enquête) before the Regional Court on 8 December 1986. After this taking of evidence the Regional Court scheduled the case for 7 January 1987 to allow Viho B.V. to state whether it wished to submit evidence to the contrary (uitlating contra-enquête). This time-limit was prolonged several times. By letter of 3 December 1987, Viho B.V.’s lawyer informed the Regional Court that Viho B.V. did not wish to submit evidence to the contrary and requested the court to proceed with the case.  The applicant company submitted its further conclusions as to these points of evidence (conclusie na enquête) on 30 March 1988, to which Viho B.V. responded on 31 August 1988. In its submissions of 31 August 1988, Viho B.V. further sought to amend its initial claim for damages by increasing it to NLG 160,504.60. In its interlocutory judgment of 1 March 1989, the Regional Court noted that Viho B.V. had failed to submit two of the three exhibits it had announced in connection with the amendment of its claim. After having considered the parties’ written submissions after the taking of evidence on 8 December 1986, the Regional Court further held that the applicant company had failed to prove that it had been discharged by Viho B.V. of its contractual obligations and invited Viho B.V. to substantiate certain claims and scheduled the case for 29 March 1989. Viho B.V. submitted the substantiation requested on 23 May 1990, in which it argued that the breach of contract had caused direct damages amounting to NLG 170,386 and additional consequential damages (gevolgschade) amounting to NLG 12,210,000. In its written reply submitted to the Regional Court on 20 February 1991, the applicant company objected to the increase of the claim. In its interim decision of 20 March 1991, the Regional Court accepted an increase of the initial claim up to an amount of NLG 170,386 but refused to take into consideration Viho B.V.’s additional claim for consequential damages. The applicant company made further written submissions to the Regional Court on 24 April 1991, as did Viho B.V. on 18 December 1991. In its judgment of 22 July 1992, the Regional Court found against Viho B.V. On 20 October 1992, Viho B.V. filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. It was not before 9 February 1995 that Viho B.V. submitted its objections against the judgment of 22 July 1992. The applicant company’s reply was submitted to the Court of Appeal on 4 May 1995. In its judgment of 21 December 1995, the Court of Appeal quashed the judgment of 22 July 1992 and found against the applicant company. In the applicant company’s reply of 4 May 1995 to Viho B.V.’s objections to the judgment of 22 July 1992, the applicant company had argued that Viho B.V. had violated principles flowing from rules of proper procedure by its failure to comply with the obligation of substantiation and had caused the proceedings to exceed the reasonable time requirement of Article 6 of the Convention, inter alia, by having submitted its objections against the judgment of 22 July 1992 more than two years after having issued the appeal summons. In its judgment of 21 December 1995, the Court of Appeal construed the applicant company’s submissions as meaning that Viho B.V.’s appeal should be declared inadmissible on the ground that it had unduly prolonged the proceedings. It then rejected this argument. It held that Viho B.V.’s appeal had been lodged within the applicable time-limit. Moreover, the applicant company could have itself limited the delay by asking the Court to set Viho B.V. a peremptory time-limit (peremptoirstelling), of which possibility it had apparently not availed itself. The applicant company subsequently sought legal advice as to the chances of success of an appeal on points of law to the Supreme Court (Hoge Raad). By letter of 7 March 1996, Mr H., a lawyer practising in The Hague, advised that such an appeal was likely to fail. Insofar as the applicant company considered raising a complaint in respect of the length of the proceedings, Mr H. considered that it was doubtful that the Supreme Court would accept such a complaint under Article 6 § 1 of the Convention. He noted that the Court of Appeal had rejected the argument that Viho B.V.’s appeal should be declared inadmissible on grounds of a finding that it had unduly prolonged the proceedings, pointing out that the applicant company could have sought a peremptory time-limit. Mr H. further referred to the Supreme Court’s case-law according to which this provision of the Convention only created obligations for Contracting States and had no horizontal application between private parties. Pursuant to Article 134 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) a claimant may amend the claim submitted to the civil courts throughout the proceedings. The adversary party may, however, object to such an amendment if, inter alia, this would cause an undue delay in the proceedings. Article 143 of the Code of Civil Procedure states that the judge shall determine time-limits for written submissions and that, where the parties agree on this point, the judge shall respect their wishes unless this would lead to an unreasonable delay. Where one of the parties seeks an extension of a given time-limit, which is considered unacceptable by the court or the opposing party, the court may decide to set a peremptory time-limit, i.e. a final time-limit.