No penalty payments in combination with an order for the payment of a fine…

Ton Jongbloed

The judicially imposed penalty payment on a party not complying with a court order (dwangsom) was introduced in the Dutch Code of Civil Procedure in 1933. Through the rejuvenation in 1978, the regulation of the penalty payment is now equal in Dutch, Belgian and Luxembourg law. The topic of the penalty payment is closely linked to the Molengraaff Institute for Private Law in Utrecht. Professor S.N. van Opstall (professor from 1 March 1955 until 1 September 1971) gave his inaugural lecture titled, ‘Some comments about the penalty payments’ and wrote a preliminary advice for the Association for the comparative study of the laws of Belgium and the Netherlands in 1961 concerning the rules of the penalty payment in Dutch law. I myself have been interested in the indirect means of enforcing a judgment for years. Initially I wanted to dedicate my dissertation to this topic (but it was already claimed by a lawyer from Amsterdam who, in the end, never seriously worked on the topic) and later I wrote articles, books and case notes about it.

When reading the general case law it sometimes amazes me that some legal questions only emerge at a very late stage in the proceedings and that legal history is occasionally stubbornly held onto. An example of the first issue is HR 23 October 1998, NJ 1999/130 (Ontvanger/ABN Amro): in the event that a man and woman are married in community of property the third-party debt order for a claim against the husband on a bank account which is only in name of the wife should be placed on the wife because in that event she is the judgement debtor. An example of the second issue is that in case law travel agencies are not considered as a retail space because 45 years ago the former Minister of Justice stated in the Second Chamber ‘the extension to travel agencies does not seem necessary to me, because the location barely places a role. One goes to such an agency because they know that travel agent or because the name is appealing, but one does not go to a specific travel agency due to the place of business’. That is now settled case law (see HR 2 December 1977, NJ 1979, 103, Kroonenberg/Iberia, and HR 19 March 1993, NJ 1993/508 Oriënt travel) although the de facto situation has changed dramatically. Back then the – more affluent – customer maintained a personal relationship with the travel agents, nowadays one sees a television commercial and books a vacation online, only visiting the nearest travel agency if there are special requests.

Also regarding the penalty payment it can be said that some questions have only been answered recently. On the suspension of the period of limitation in the enforcement of penalty payments the Supreme Court provided clarification on the 19^th of June 2012, NJ 2013/508 (Krator/Gulf Oil) and 509 (De Wit/Auto Campingsport Deurne). In the Krator case it was decided that the limitation of penalty payments is not suspended by an appeal against the judgment in which they were imposed.

Lately I wonder whether the exception contained in art. 611a para. 1 Code of Civil Procedure, that a penalty payment cannot be imposed in case of an order for the payment of a fine, should be scrapped. The legislator thought of other means (of execution) for the payment of a fine to others: the attachment for the recovery of money and the statutory interest rate (currently at 2%!). But sometimes a – former – employer is sentenced to pay overdue wages, holiday pay and overtime allowance, which only concerns a few hundred euros. Of course the claim can be collected through the attachment for the recovery of money, but then reasonably high costs must be paid up front. Why not delete the exception and let the judge decide whether in such cases an order subject to a penalty payment of € 25 per day is more effective. Because the cases HR 9 April 1949, NJ 1950/595 (Houtappel/Hoofdgroep ‘Verzekering’) and BenGH 9 July 1981, NJ 1982/190 (Geers/Scholten) show that such an order is possible where it is not the main component of the judgment or when it concerns the payment to a third party. The deletion of the exception will prevent more law suits from being conducted on the question whether the exception concerns the provision of credit (BenGH 24 May 2004, NJ 2004/566, Commerzbank/Sabena) and the provision of a bank guarantee (Hof Arnhem, 24 November 2009, NJF 2010/14, Flevo manege’s/Terhort grondverwerving).

In conclusion, sometimes it is time to explore new paths and to think ‘out of the box’. Therefore it is good to work together with researchers within the Montaigne Centre who have different backgrounds. Then we can tread new (research) paths and that leads to new insights.

Ton Jongbloed