CMS Expert Guide to Digital Litigation in The Netherlands

For several years, the legislator in the Netherlands has been working on modernising and digitising legal procedures. Dutch courts are consistently in the top three worldwide in efficiency and quality (see worldjusticeproject.org).

In 2016, the legislator introduced the Quality and Innovation of the Judiciary (KEI) programme and the related legislative proposals to amend the Dutch Code of Civil Procedure (DCCP). With KEI, the legislator aimed to simplify, speed up and digitalise civil proceedings. Due to difficulties, this project had been delayed.

In November 2019, the council for the judiciary came up with a basic plan on how to tackle digitisation further. This was the Basic Plan for Digitisation Civil and Administrative Law (referred to here as the Basic Plan for Digitalisation).

The Basic Plan for Digitalisation provides a new digitisation solution for civil and administrative law jurisdictions. This will eventually allow the introduction of compulsory digital litigation as envisaged by KEI legislation. The new solution is a step-by-step realisation of digital accessibility of the judiciary for litigants and legal representatives in all proceedings in civil and administrative law. 
The result will be that within a few years the messages and exchange of procedural documents between parties (i.e. parties involved in the case and courts) can take place digitally in accordance with the digitisation regime in the KEI legislation and could eventually be made compulsory for professional litigants. Simultaneously, an internal digital system, which will also offer external accessibility for proceedings, in a "digital work file" for officers of the judiciary will be made possible. The total period of digitising proceedings under the Basic Plan for Digitalisation is estimated at five years (completed in 2024) with an extension margin of two years. A longer implementation margin will be partly dependent on external parties (i.e. prioritisation). It is already possible to digitally file procedural documents along with a physical filing.

The COVID-19 crisis in 2020 accelerated the need and flexibility for digitalisation of court sessions. During this crisis, most hearings took place digitally.

Since 17 June 2020, a legislative proposal for modernisation of evidence law has been pending.

On 1 January 2019, the Netherlands launched the innovative Netherlands Commercial Court (NCC), which handles cases in English and adjudicates in English. The NCC employs judges, counsel and legal assistants from all over the Netherlands who have specific expertise and experience in commercial matters, as well as a good command of English. The NCC has developed a separate portal for NCC cases: the eNCC, which allows for digital communication with the NCC for submission of procedural motions, other procedural documents and exhibits and digital messaging. Using the eNCC is mandatory for all written communications, including correspondence and submitting documents of process in all NCC cases except where the court directs otherwise. No hard copies are required. Sessions can be held in a digital courtroom with the option of using the video conference for the pre-trial hearing or attending the hearing remotely.

Civil Law:

• Since November 2021, lawyers can file prejudgment attachment requests digitally at all courts. In the first year, 1,500 attachment applications were filed digitally.
• Since 1 February 2022, lawyers can voluntarily communicate digitally in compulsory care cases at the Gelderland District Court. Lawyers can access files and send documents as soon as they receive notification from the court that a digital file is ready. 
• At the Rotterdam District Court, digital communication of documents and messages is possible in uncontested money claims, which includes digital filing of a money claim summons by the bailiff, digital sending of the case number to the bailiff by the registry and digital sending of the judgment with a digital message whether the claim has been awarded in accordance with the claim.

Administrative Law:

• Lawyers have had to litigate digitally in asylum and detention cases since 2017. 
• In regular immigration cases, lawyers can choose whether to litigate digitally or on paper.
• The Immigration and Naturalisation Service exchanges information digitally with the judiciary in immigration cases. 
• Since 30 January 2023, digital litigation is possible in appeals on state taxes at the courts of appeal. Citizens as well as lawyers and other professionals will be able to conduct the appeal procedure completely digitally.
• Since 13 February 2023, litigants can litigate digitally in state tax cases in first instance at the North-Netherlands District Court.

Criminal Law:

• Project Digital Process File is an application that allows the police to compile and share digital process files with the prosecution. 
• The police, public prosecutor's office, judiciary and prison system are aligning their digital systems. This allows them to exchange documents and other information with each other faster and more easily. 
• Lawyers receive digital files in almost all first instance criminal cases. And increasingly in appeal cases as well.

Supervision:

• The judge supervises the work of the receiver or administrator in bankruptcies, debt restructuring and protective administration and carries out this supervision almost entirely digitally. 
• All court administrators exchange information digitally with the bankruptcy judge on bankruptcy cases. 
• Professional administrators of protection orders communicate digitally with the court. 
• Private administrators can arrange administrator matters digitally.
• Professional administrators in Wsnp (i.e. debt rescheduling) cases exchange information digitally with the court.

Participate online

The court may order that parties participate online for reasons such as COVID-19.

At the Limburg District Court, institutional requests for guardianship and mentorship are handled via a video link (between the Limburg District Court and the town hall in Venray). A pilot project for this ran from November 2019 to November 2020. After a successful evaluation, the method was incorporated into a teamwork process. The Limburg District Court is now investigating whether other municipalities are interested in offering this option in the same way as the municipality of Venray.

Within criminal law, certain hearings take place via "telehearings". The possibilities for this have been expanded since the COVID-19 crisis and have been used more frequently since then. Telehearings offer an advantage over physical hearings in some serious criminal cases where transport of a charged invididual from a correctional institution is undesirable from a security perspective. It also offers an advantage to the detainee in some cases since they do not need be transported for shorter hearings.

Safely exchanging information

In cases that have not yet been digitised, parties can exchange procedural documents and messages quickly and easily via Secure Mailing. Confidential information is protected via this encrypted mail. The judiciary has been using ZIVVER as a Secure Mailing facility for exchanging confidential information for some time now. The use of the fax within the judiciary ended on 1 February 2022.

Digital case list (roljournalen)

The case list for commercial law, family and civil law can be accessed digitally. 

Digital litigation is not yet mandatory. One of the major problems with KEI was that digital litigation in civil proceedings quickly became mandatory and little testing was done. To avoid this in the future, it has now been decided to introduce voluntary litigation on a case-by-case basis. Hence, digital filing of cases and digital exchange of documents is now voluntary, but will become mandatory for legal professionals at some point. Firstly, digital litigation will become mandatory for lawyers in cases with an interest of more than EUR 25,000 (i.e. cases with mandatory legal representation). At a later stage, it will be possible for private individuals to litigate digitally in claims without mandatory legal representation (i.e. subdistrict cases with an interest below EUR 25,000). Citizens can always continue to litigate on paper.

In light of the above, litigation in the Netherlands cannot be considered a fully digitalised process. Although some proceedings may be mostly or even completely conducted through digital communication, the Netherlands does not have a fully and integrated digital process for litigation in place. Most digital litigation is not yet mandatory and non-digital litigation is still also an option. The Basic Plan for Digitalisation is a still a process to achieve digital accessibility. This plan assumes the step-by-step realisation of digital accessibility of the judiciary for litigants and legal representatives in all proceedings in civil and administrative law. 

The Basic Plan for Digitisation implements the reset of digitisation announced earlier in 2018 by the Council for the Judiciary, just as it was implemented for the legal areas of civil and administrative law shaped within the KEI programme. This will eventually allow the introduction of compulsory digital litigation as envisaged by the KEI legislation. This plan and the intended benefits should be seen as part of the path to fully implement KEI legislation.

The Electronic Proceedings Decree (Bep) adopted on 1 January 2021 sets down the requirements and conditions for both voluntary and mandatory digital proceedings. The Bep is particularly important for putting into practice the judiciary's plans for digital litigation in civil and administrative law.

In addition, the implementation of the updated Code of Criminal Procedure requires a major digitisation effort from the judiciary and the rest of the criminal justice chain. In recent years, investments have been made in the criminal justice chain through the Criminal Justice Chain Digitisation Programme.

Also, the European Commission is coming up with an e-justice regulation, which includes several dozen regulations aimed at digital access to justice in every member state for every EU citizen. E-Codex is an existing European digital technical solution for fast, reliable and secure online cross-border information exchanges between competent judicial authorities (e.g. courts and prosecutors) in a growing number of cross-border legal proceedings in both criminal and civil law. On 2 December 2020, the European Commission presented a legislative proposal to make e-Codex permanent through an appropriate governance and management structure compatible with the European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice. This legislative proposal resulted in the adoption of regulation 2022/850.

The Digital Access Civil and Administrative Project (i.e. the Digital Access Project) stems from the Basic Plan for Digitisation. The Digital Access Project will run for a total of four years (until approximately March 2025). The aim of the project is to ensure that litigants and representatives can submit cases to and exchange documents with the judiciary digitally as much as possible. Pilots for voluntary digital litigation are usually started at one of the courts in the Netherlands. Only after evaluating the experiences gained and incorporating possible adjustments the pilot will be extended nationally.

Under the Digital Access Project, four pilot programmes have been initiated. These pilots are also listed under Question 2.

• In March 2021, the first pilot was carried out for the attachment requests at the Amsterdam District Court. Since November 2021, it is possible for lawyers to litigate attachment cases digitally in all courts.
• On 1 February 2022, the pilot for compulsory care cases started. At the Gelderland District Court lawyers will be able to consult the digital case file in compulsory care cases (Wvggz, Wzd and Wfz) anytime and anywhere via the web portal. They will then also be able to communicate digitally with the court.
• On 11 April 2022, the Netherlands launched the pilot Digital Access project in joint requests for divorce at the district courts of Overijssel (located in Almelo) and Midden-Nederland (located in Utrecht), enabling lawyers to litigate digitally in these proceedings via a secure web portal. If the judge issues a divorce decree, you will also see this in the secure web portal. This pilot is extended under changed conditions. Parties can now submit a maximum of one digital request per law firm, per week, per pilot location. By doing so, they aim to limit the inflow of digital requests in this pilot while maintaining the possibility to litigate digitally. Digital requests submitted above the maximum set number of requests cannot be processed.
• On 13 February 2023, the pilot for state tax cases got underway allowing litigants to litigate digitally in first instance state tax cases at the North-Netherlands District Court. 

In principle, all kind of evidentiary methods can be used to substantiate and persuade Dutch courts in civil law cases. There are currently no rules in place in the Netherlands that specifically address and limit the use of AI in litigation.

AI, however, is high on the agenda of the European Commission. In 2021, the Commission proposed an AI regulation with a regulatory framework: the Artificial Intelligence Act (COM/2021/206 final, "AI Act"), which is based on a "risk-based approach". The greater the risks, the stricter the requirements. The use of AI for justice purposes is "high risk" and is subject to additional stringent requirements, including transparency, data quality, security and human oversight. If these requirements are not met, fines of many millions of euros can be imposed. Given the great importance of this draft regulation, it will be some time before it becomes final. On 6 December 2022, the Council of the EU adopted its general approach and compromise text on the proposed AI Act, bringing the AI Act one step closer to being adopted. The European parliament is currently developing its own position on the AI Act. Once this is done, the Council, Parliament and European Commission will enter into trilogue discussions to finalise the Act, which was originally scheduled to take place in March 2023. When adopted, the Act will be directly applicable across all EU member states and its obligations are likely to apply three years after the AI Act’s entry into force.

Also of interest to legal practitioners, the European Commission for the Efficiency of Justice prepared the 'European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment' in December 2018. For the first time in Europe, this charter provides a framework of principles to guide policy makers, legislators and justice professionals in addressing the rapid development of artificial intelligence in national judicial processes.

The judiciary has taken measures to protect personal data against loss or unlawful processing. All information is treated confidentially by the judiciary and is stored on secure servers. In doing so, the judiciary follows the regulations and standards of the central government for information security. The Chief Information Security Officer function is being further developed and the judiciary has switched to applying the Government Information Security Baseline instead of its own standards system.

The judiciary treats personal data confidentially and secures data in accordance with the provisions of the General Data Protection Regulation (GDPR) and the Police and Justice Data Protection Directive (in criminal law proceedings). The judiciary has a Data Protection Officer who is independent and checks whether the judiciary applies and complies with the GDPR and the Police and Justice Data Protection Directive. In the context of the GDPR, the Netherlands has developed a national privacy policy, established privacy governance (for administrative data protection) and drafted a privacy declaration. All personal data recorded in national IT systems have been mapped in a national processing register. The courts have also analysed the purpose for which registrations of personal data are kept. 

In March 2019, the Senate in the Netherlands passed the Class Action Mass Claims Settlement Act (WAMCA), which entered into force on 1 January 2020. The main change brought about by the WAMCA is the possibility to file a claim for damages on behalf of several people in the Netherlands. Previously, injured parties had to initiate individual proceedings to claim compensation. Now both the renewed the WAMCA and the GDPR stipulate that a citizen may be represented by an interested foundation or association, which can claim compensation on behalf of the individual. This will make it easier for legal tech companies to collect claims (e.g. from consumers) and then jointly file them on a large scale in one procedure before the court (e.g. in a civil proceeding).

We have not yet identified a link with digital tools and a rise in collective claims. In general, the use of digital and automated processes can make it easier for claims to be filed and processed, resulting perhaps in the filing of more collective actions. 

In short, through the Basic Plan for Digitisation parties gain access to a digital system of the judiciary through a digital channel (e.g. web portal or a system link). Through this digital channel, these parties can submit a case to a court and all message and document exchanges between the parties and the hearing can take place digitally. For parties and legal representatives who use the portal or the system link, the case file can also be viewed digitally within the portal. On the internal justice side of the digital system, these cases, documents and messages enter a digital mailroom. Court clerks process digital documents from this mailroom just as clerks processed paper mail. These clerks convert procedural documents and messages received by the court on paper (i.e. under substitution) into digital form, which are then added to the digital case files. The court sends these digital documents and messages via the mailroom to the parties, the archives or to the next judicial authority.