The engagement described here is anonymized. It is set out not to advertise a result, but to show the kind of problem a mid-sized European business runs into when a legal dispute arrives from a country whose language, courts and procedure it does not know, and what it actually takes to steer through it.
The situation
A Spanish manufacturer, a family-owned company producing and selling its goods under its own registered brand, received a formal demand from a competitor based in the Netherlands. The demand, drafted by Dutch lawyers and served in the manner of that jurisdiction, alleged an intellectual property infringement and required the Spanish company to stop, on a short deadline, under threat of proceedings.
For the company, the letter was doubly alarming. The substance was serious, an attack on the brand it had built and sold under for years. But the greater immediate problem was that the whole thing was happening in a foreign legal system, in a foreign language, on a clock. The company had no Dutch lawyer, no understanding of Dutch procedure, and no way to tell whether the demand was a genuine threat or an aggressive opening move. Left alone, a business in that position either capitulates to a claim it does not understand, or ignores a deadline whose consequences it cannot see. Both are how a defensible position is lost.
What a Dutch demand can set in motion
A demand letter of this kind is a private document. It states the sender’s position and sets the sender’s deadline; it is not an order of any court. What gives it weight is what can follow it, and one route that can follow it quickly is summary proceedings, the kort geding. Under Article 254 of the Dutch Code of Civil Procedure, in all urgent cases in which, given the interests of the parties, an immediate provisional measure is required, the preliminary relief judge has power to grant it, and on application the judge can fix the day and hour of the summons for the particular case.
Intellectual property enforcement has its own title in that Code, which Article 1019 applies to the enforcement of intellectual property rights, and certain related procedures, under the Dutch statutes and the Benelux and European instruments it names. Within that title, Article 1019i deals with what happens after a provisional measure is granted. The judge sets a reasonable period for bringing the main action, and if no main action is brought within it, the measure loses its force once the defendant files a declaration to that effect with the court registry. Where the judge sets no period, the same declaration ends the measure after at least 31 days, of which at least 20 working days, have passed without a main action. The rule tracks Article 9(5) of the Enforcement Directive, Directive 2004/48/EC, which requires such measures to be revoked or cease to have effect, on the defendant’s request, if the applicant does not start proceedings on the merits in time.
The same title changes the arithmetic of costs. Article 1019h provides that, departing where necessary from the ordinary Dutch costs rules, the losing party is, on request, ordered to pay the reasonable and proportionate legal costs and other expenses incurred by the winning party, unless fairness stands in the way. Article 14 of the same Directive sets the same principle, as a general rule, for the whole Union. The rule cuts both ways: a claim that fails can leave the claimant carrying the defendant’s reasonable costs, and a defence that fails can leave the defendant carrying the claimant’s, which is why the early reading of the real risk matters as much as it does.
What we did
We began by doing the thing the company could not do for itself: reading the matter from inside both systems at once. We reviewed the demand and the underlying position in Spanish, with the client, so that it understood exactly what was being alleged and what was genuinely at stake, separating the real risk from the negotiating posture.
We then identified and engaged specialist Dutch counsel appropriate to the dispute, and coordinated them from the first alignment call through the substance of the response. That coordination is not administrative. It is making sure the Dutch lawyers have the right facts, that the client understands the Dutch advice in its own language, that the strategy agreed in one country is the strategy executed in the other, and that nothing is lost in the translation between a Spanish family business and a Dutch litigation team. This is the discipline we describe in our note on cross-border debt recovery and in our note on enforcing a judgment across European borders: the law is only half of it; the coordination across two systems is the other half.
As the matter moved from an extrajudicial exchange into proceedings before a Dutch court, we managed the process on the client’s side: the response to the demand, the procedural steps, the court notifications and deadlines that a foreign party most easily misses, and a continuous line of communication so the client always knew, in plain Spanish, where its case stood. When the court admitted the claim and a hearing followed, the company was prepared and represented, rather than surprised.
The company was not short of a case. It was short of a way into a legal system that was not its own, on a deadline. That gap, not the law, is where these matters are usually lost.
Why a Dutch court can hear a claim against a Spanish company
The starting point is the Brussels I bis Regulation, Regulation (EU) No 1215/2012. Under Article 4(1), persons domiciled in a Member State are, whatever their nationality, to be sued in the courts of that Member State, and under Article 5(1) they may be sued in the courts of another Member State only by virtue of the rules in Sections 2 to 7 of its Chapter II. One of those rules is Article 7(2): in matters relating to tort, delict or quasi-delict, a defendant may be sued in the courts for the place where the harmful event occurred or may occur. That is one route by which a claim about conduct in one country can be heard there against a company based in another. Article 35 adds that provisional measures available under a Member State’s law may be sought from its courts even if the courts of another Member State have jurisdiction as to the substance.
Two further rules shape the defence. Article 24(4) gives exclusive jurisdiction, in proceedings concerned with the registration or validity of patents, trade marks, designs or other similar rights required to be deposited or registered, to the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place, and it does so irrespective of whether the issue is raised by way of an action or as a defence. Article 26 gives jurisdiction to a court before which a defendant enters an appearance, except where the appearance was entered to contest the jurisdiction or where another court has exclusive jurisdiction under Article 24. The first procedural answer in a foreign court is therefore not a formality: how and when a defendant appears can itself bear on where the case is heard.
These are the general rules. Where the right relied on is an EU trade mark, Article 122 of Regulation (EU) 2017/1001 on the European Union trade mark disapplies several of them, including Articles 4, 7(2) and 35, for the actions and claims listed in its Article 124, which include infringement actions, and makes Articles 25 and 26 subject to the limits in its own Article 125(4); its Article 125 contains its own rules on international jurisdiction for those actions, and its Article 131 contains rules on provisional and protective measures. Which set of rules governs depends on which right the claimant actually holds, and that is a threshold question rather than a detail.
What a Dutch judgment means in Spain
A foreign company sometimes assumes that a judgment given abroad stays abroad. Within the Union, in civil and commercial matters, that assumption is usually wrong. Under Article 36(1) of the Brussels I bis Regulation, a judgment given in a Member State is recognised in the other Member States without any special procedure being required, and under Article 39 a judgment that is enforceable in the Member State where it was given is enforceable in the other Member States without any declaration of enforceability. The mechanics are the subject of our note on enforcing a judgment across European borders.
The grounds on which recognition is refused are set out in Article 45, and on the application of the person against whom enforcement is sought, enforcement is refused under Article 46 where one of them is found to exist. One of those grounds bears directly on the company that ignores a foreign deadline. Under Article 45(1)(b), on the application of any interested party, recognition of a judgment given in default of appearance is refused if the defendant was not served with the document which instituted the proceedings, or an equivalent document, in sufficient time and in such a way as to enable it to arrange for its defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for it to do so. A defendant that could have challenged a default judgment and did not cannot rely on that ground later.
The outcome, and the point of it
The company moved from receiving an intimidating foreign demand it could not interpret to being properly advised, properly represented and in control of its own defence in the Netherlands, with Dutch counsel who knew the forum and a coordinator who kept the two sides of the matter aligned. The value delivered was not a single dramatic result; it was that a serious cross-border dispute was handled competently from the first day instead of being mishandled or ignored, which is the difference that decides most of these matters before they are ever argued.
Why this recurs
This engagement is one instance of a pattern we see repeatedly. A capable European business, expert in its own market, is suddenly exposed to a legal system it has no map for, usually at speed and usually in a language it does not work in. The right response is rarely to find a lawyer in the foreign country at random and hope, and never to freeze. It is to bring in someone who stands in both systems, understands the client and the forum, engages the right local counsel, and coordinates the whole thing to one plan. That is the role we play, and it is set out more generally in our note on governing law and jurisdiction in cross-border contracts, which is where many of these disputes are quietly decided long before they arise.
Montclare coordinates the legal architecture behind cross-border structures, working with counsel in each relevant jurisdiction to one design. Our services are set out on our services page.
This article is informational and does not constitute legal advice. The law differs by jurisdiction and the treatment of any matter depends on its facts. Each engagement is subject to scope and applicable regulation.