Droit Fiscalité belge

Service of process

By any of the following means:
1. Personal Service
2. Post (first class)

3. Document exchange

4. Leaving the document at address
5. Fax
6. Electronic means i.e. e-mail (if agreed in writing)

Permission of the Court will not be required to serve the claim out of the jurisdiction if Defendant is resident in a Brussels or Lugano Convention country.
Method of service will be any method permitted by the law of the country in which the claim is to be served.

For other jurisdictions, service may need to be made through foreign governments, judicial authorities or British consulate authorities. The claim form will need to be accompanied by a translation, if necessary.

Time to Trial
(approximate average)

12 months

Pre-Trial Injunctions

Yes.
Application with or without notice.
Injunctions will only be granted at the discretion of the Court.
Plaintiff must show:
1. He has an arguable case;
2. Damages will not be adequate compensation;
3. More damage is likely if an injunction is not granted than if it is granted.

Plaintiff will need to undertake to pay Defendant damages if the trial judge decides that the injunction should not have been granted and may need to provide a bond.

An injunction will normally be granted within 1 - 3 weeks but, if circumstances of urgency dictate, can be quicker.

Certain Injunctions will be available for foreign proceedings

Freezing/Mareva Injunctions

Yes.
Application without notice and can be granted immediately.
Available for foreign proceedings.
Requirements:
1. Cause of action in England;
2. Good arguable case;
3. Defendant having assets within the jurisdiction; and
4. Real risk that the Defendant may dissipate those assets before judgment can be enforced.

Pre-Trial Depositions

Depositions are possible but unusual, as courts prefer to receive oral evidence from the witness wherever possible.
An English Court can compel witnesses to attend depositions for foreign proceedings, in certain circumstances.

Discovery/Disclosure

Yes.
Party must disclose:

1. Documents on which he will rely;
2. Documents which adversely affect a party's own case or adversely affect another party's case; and
3. Documents which support another party's case.
Documents deemed privileged need not be disclosed.

Representation

No formalities except a corporation must instruct a solicitor (i.e. cannot represent itself).

Trial

No jury; judge alone.

Legal submissions part written and part oral.

Average duration: up to 1 week, longer for very complex cases.

Oral Evidence

Yes - evidence in chief via a witness statement and oral cross-examination

Enforcing Judgement/Jurisdictional Issues

Money judgment:
1. Execution (seizure and sale of debtor's goods);
2. Charging order (legal charge on debtor's land or securities);
3. Garnishee order (a 3^rd party who owes money to the debtor pays directly to the creditor); and
4. Freezing order (against bank account).
Enforcement:
Signatory to the Brussels and Lugano conventions providing for cross-border enforcement of judgments intra-Europe. For other foreign judgments, must start national proceedings for enforcement.

Costs

No fixed fees - a party will pay an hourly rate to his lawyer.
Sometimes Conditional Fee Arrangements are possible (where liability to pay fees are conditional on "success" being achieved).
Successful party recovers a proportion of its costs from the unsuccessful party (usually 75%).

Appeals

Yes. Permission of the Court required to appeal (to the Court of Appeal). Permission is difficult to obtain.
Permission will only be given where:
the appeal has a real prospect of success; or
there is some other compelling reason why the appeal should be heard.

Service of process

Personal service by a Court bailiff.
If the defendant is abroad, service is by the bailiff by registered mail to the defendant or to the public prosecutor or by
the public Prosecutor according to local rules.

Time to Trial
(approximate average)

12 months

Pre-Trial Injunctions

Yes
Application with notice or without notice (in extremely urgent cases).
Injunctions will be granted at the discretion of the Court.
Plaintiff must show urgency.
Takes 2-3 weeks except where very urgent.

Freezing/Mareva Injunctions

Yes. Preliminary seizures (seizure of movable goods, real property and third party attachment).
Application without notice and injunction can be granted immediately.
Available for foreign proceedings.
Requirements:
1. Certain, due and liquid debt and urgency (an appearance of a good arguable case);
2. The defendant having assets within the jurisdiction; and
3. Real risk that defendant may dissipate those assets before a judgement can be enforced.
No bond from the plaintiff required but can be held liable in case of reckless or vexatious proceedings.

Pre-Trial Depositions

Not available for national proceedings.

Available for use as evidence in foreign proceedings.

Discovery/Disclosure

Yes.
Party must disclose documents on which he will rely. A a party is not obliged to disclose documents which are not in his favour. Parties have the duty to cooperate in gathering evidence. A Court may order the production of specific documents if relevant to the case except documents deemed privileged.
Sanctions: a judge can sentence a party to pay damages in case of non-disclosure.

Representation

No formalities.

The parties must appear in person or be represented by a lawyer either in national or in foreign proceedings; a lawyer must not necessarily represent them in foreign proceedings however judges generally dislike parties appearing in person.

Trial

No jury in civil matters; judge alone except three-judges panel (in special cases on request; in the court of appeal;
in the commercial court: a professional judge and two laymen) and
five-judges panel in the supreme court.

Legal submissions:
part written, part oral or only written.

Average duration:
1 day; hearing: up to 2 hours (longer for very complex case).

Oral Evidence

Witness inquests can be ordered by a court but relatively infrequent.

Enforcing Judgement/Jurisdictional Issues

Money judgement:
prior notification of the judgment;
Enforcement after a period of 1 month except in cases of provisional order of execution;
No prior authorization from the judge required for enforcement.
1. execution (seizure and sale of debtor's goods);
2. Charging order (legal charge on debtor's land or securities);
3. Garnishee order (a 3^rd party who owes money to the debtor pays directly to the creditor);
4. Freezing order (against bank account).
No civil fine can be ordered by a Court to compel the debtor to perform the judgement
(astreinte).
Enforcement:
Signatory to the Brussels convention (Council Regulation (EC) n° 44/2001) and Lugano convention providing for cross-border enforcement of judgments intra-Europe. For other foreign judgments, must start national proceedings for enforcement (exequatur)

Costs

A party will pay an hourly rate or fixed fee taking into account the importance of the case, the skills and experience of the lawyer, the work involved, the financial situation of the client and the outcome of the case.
Fee depending only on the outcome of the case is prohibited (Contingent fee agreement).
Successful party recovers an insignificant part of his costs (expenses of bailiff, court fee for listing the case and a fixed procedural indemnity, excluding lawyer's fee) from the unsuccessful party (less than 1 %).

Appeals

Yes.
The parties have a right of appeal.
A full appeal of the decision is possible to the Court of appeal.
Time: 12 months.
When such appeal has been exhausted, appeal is possible to the "Court of Cassation" but the scope of review is limited to the correct application of the law by the lower Court.

Service of process

By any of the following means:

1. Personal Service
2. Post (first class)
3. Document
exchange

Time to Trial
(approximate average)

12 - 18 months

Pre-Trial Injunctions

Yes, same as in England.

Freezing/Mareva Injunctions

Yes.
Requirements as in England.

Pre-Trial Depositions

Not available for proceedings in Denmark.

The Danish Court can take depositions for use in foreign proceedings if requested by a foreign Court or other authority

Discovery/Disclosure

A party must disclose documents on which he will rely.

The courts can upon request order a party to disclose specific documents. However, this procedure is seldom used and the only sanction if a party refuses to disclose the document is the detrimental effect for the non-disclosing party.

Representation

A lawyer must represent a party. No other formalities

Trial

Similar to England

Oral Evidence

See entry for England.

Enforcing Judgement/Jurisdictional Issues

See entry for England

Costs

Fees will be based on either an hourly rate or the standard calculation of cost made by the courts.
The courts calculation of cost is based on the value of the case.
The successful party will normally be awarded costs.
However the costs awarded often do not cover the actual expenses including legal fees.

Appeals

Yes. Appeal is available except for minor lawsuits (less than £1,000).

Service of process

Personal Service by a Court bailiff.
If the Defendant is abroad, through the French Ministry of Justice in accordance with the local rules.

Time to Trial
(approximate average)

12 to 18 months

Pre-Trial Injunctions

Yes
Application on notice.
Plaintiff must show arguable case and urgency.
Usually takes 1-3 weeks, but can be less where real urgency.
Sometimes possible to obtain an injunction in support of foreign proceedings.

Freezing/Mareva Injunctions

Yes.
Application without notice.
An Order can be granted immediately
Requirements:
1. A deemed existing claim;
2. A good arguable case;
3. The defendant has assets within the jurisdiction; and
4. A real risk that the defendant may dissipate those assets before judgment can be enforced.

Pre-Trial Depositions

Not available for national or foreign proceedings.

Discovery/Disclosure

Yes.
Party must disclose documents on which he will rely.
A party is not obliged to disclose documents which are not in his favour.
The Judge may order a party to disclose any documents except documents deemed privileged.

No penalty in case of non disclosure by a party

Representation

No formalities

Generally lawyers have an automatic power of attorney to represent clients in Court.

In most Courts, apart from the highest civil Court and Court of Appeal, a party is entitled to represent themselves

Trial

Oral Evidence

Available in France but unused.

Enforcing Judgement/Jurisdictional Issues

Money judgement :
Under French law, a decision on the merits rendered by a Court of first level is enforceable if an appeal has not been filed against it. The party wanting to file an appeal has one month to do it.
When an appeal is filed against a decision, the decision becomes definitive and enforceable once the decision of the court of appeal is rendered.
1. execution (seizure and sale of debtor's goods);
2 Charging order (legal charge on debtor's land or securities);
3. Garnishee order (a 3^rd party who owes money to the debtor pays directly to the creditor); and
4. Freezing order (against bank account)
Enforcement:
Signatory to the Brussels and Lugano conventions providing for cross-border enforcement of judgments intra-Europe. For other foreign judgments, must start national proceedings for enforcement. (exequatur).

Costs

A party will pay an hourly rate or a fixed fee to his lawyer.
Conditional Fee : possible only if it represents a part of the total fees.

Successful party recovers a small proportion of its costs from the unsuccessful party (usually 5 to 25%). This is left to the Judge to assess.

Appeals

Yes. There is a right to appeal.

12-18 months

Service of process

Service of process is effected by the Court.

Time to Trial
(approximate average)

4 - 12 months

Pre-Trial Injunctions

Yes.
Application with or without notice.
Injunctions will only be granted at the discretion of the Court.
Defendants anticipating an injunction against them may file a protective writ (Schutzschrift) to prevent an ex parte order without notice to them.
Plaintiff must show:
1. He has an arguable case; and
2. More damage is likely if an injunction is not granted than if it is granted;
Plaintiff is strictly liable for damages if the injunction is set aside upon an inter parties hearing or on appeal.
An injunction will normally be granted within 1 day - 2 weeks.
Certain injunctions will be available for foreign proceedings or in support of arbitration.

Freezing/Mareva Injunctions

Yes.
Application without notice and can be granted immediately/ex parte.
Available for foreign proceedings and in support of arbitration.
Requirements:
1. A cause of action in Germany, in the EU or in a member state of the Lugano convention or the defendant having assets within the jurisdiction;
2. Good arguable case; and
3. Real risk that the defendant may dissipate those assets before judgment can be enforced; or that a judgment must be enforced abroad (and outside the EU and Lugano states).

Pre-Trial Depositions

Available only in exceptional circumstances, where a witness would otherwise not be available at trial, per court order.
A German Court will compel witnesses to attend depositions for foreign proceedings only within the framework of EU regulations or bi- or multilateral conventions such as the Hague Convention.

Discovery/Disclosure

No general duty to give discovery. Parties may withhold documents which adversely affect a party's own case or documents which support another party's case, as long as they do not knowingly misrepresent the facts.
A new provision introduced on 1 January 2002 creates a limited duty of disclosure, upon a court order which may also be addressed to third parties, if a party to the litigation has relied on a document without disclosing it.

Representation

First Instance (Landgericht): representation by a Rechtsanwalt (local restrictions were lifted in 1999).
Appeal (Oberlandes-gericht): representation by Rechtsanwalt admitted at the Court of Appeals in question.
Revision (Bundes-gerichtshof): representation by a member of the special bar admitted exclusively to the Federal Supreme Court.

Trial

Oral Evidence

Yes - written witness statements are not used

Enforcing Judgement/Jurisdictional Issues

Within the scope of the EU Regulation replacing the Brussels convention and the Lugano convention: same as UK
Outside the scope of these provisions or bilateral treaties: Action must be brought for recognition of foreign judgment, recognition requires, inter alia, reciprocity.

Costs

Mimum fees are fixed by the Federal Fee Schedule (Bundesrechts-anwaltsgebühren-ordung, BRAGO); fees on time-spent basis may be agreed if higher than fees under BRAGO (see the website of Bundesrechtsanwaltskammer ,
http://www.brak.de/seiten/pdf/GebO-Englisch in EuromitAnlagen
for a brief English language introduction and a table of fees.
Sucessful party will recover legal fees on BRAGO basis, but must bear the difference between time-based fees and BRAGO based fees itself

Appeals

Yes. No permission of the Court required, and appeals are very frequently made. The reform of the Code on Civil Procedure as of 1 January 2002, makes it harder to bring appeals based on alleged errors in taking evidence or establishing the facts, but appeals should still be part of the risk assessment, in terms of time, costs, and tactics.
Revision against a Court of Appeals judgment to the Federal Supreme Court by permission, which will be granted if the matter is fundamentally important or concerns the development of the law, requires the matter to be heard by the Supreme Court.

Service of process

Personal service by Court bailiff or leaving the document at address by the Court bailiff.

If the Defendant is abroad, through the Dutch Ministry of Justice and the Foreign Office, or through Court bailiff According to local rules.

Time to Trial
(approximate average)

12 months

Pre-Trial Injunctions

Yes.
Application with or without notice.
Injunctions will only be granted at the discretion of the Court.
Plaintiff must show urgency. Takes 1 day - 3 weeks.
Certain injunctions available in support of foreign proceedings.

Freezing/Mareva Injunctions

Yes.
Application without notice and can be granted immediately.
Available for foreign proceedings.
Requirements:

1. Prima facie cause of action;
2. Defendant has assets within the jurisdiction;

3. Real risk defendant may dissipate his assets before judgment can be enforced.

Pre-Trial Depositions

Pre-trial oral witness hearings are available. Pre-trial depositions not available for national proceedings.

A Dutch Court can compel witnesses to attend depositions for foreign proceedings, in certain circumstances.

Discovery/Disclosure

Yes.
Party must disclose:
1. Documents on which he will rely;
2. Documents which adversely affect a party's own case or adversely affect another party's case; and
3. Documents which support another party's case.

Discovery of correspondence between lawyers not compellable.

Representation

No formalities.

Only in the lower Court can parties appear in person. In the other Courts the parties must be represented by a lawyer.

Generally lawyers have an automatic power of attorney to represent clients in Court.

In the Supreme Court of the Netherlands representation only by a member of the Bar of the Hague

Trial

No Jury, judge alone (in more complex cases and in the Court of appeal, 3 judges; in Supreme Court, 5 judges).

Legal submissions written.

Average duration: - 1-2 days but trial can be as short as 2 hours.

Oral Evidence

Yes. In witness hearings, there is cross-examination.

In cases designated "non witness cases" there are no witnesses and the parties are restricted to written evidence

Enforcing Judgement/Jurisdictional Issues

Money judgment:
1. Execution (seizure and sale of debtor's goods);
2. Charging order (legal charge on debtor's land or securities);
3. Garnishee order (a 3^rd party who owes money to the debtor pays directly to the creditor); and
4. Freezing order (against bank account).
Enforcement:
Signatory to the Brussels and Lugano conventions providing for cross-border enforcement of judgments intra-Europe. For other foreign judgments, must start national proceedings for enforcement.

Costs

No fixed fees - a party will pay an hourly rate to his lawyer.
Successful party will recover a small proportion of his costs from the unsuccessful party

Appeals

Yes.

No permission of the Court required.

12 months

Service of process

By the Court. If the Defendant is abroad, through a special process by the Ministry of Justice and the Foreign Office.

Time to Trial
(approximate average)

12 months

Pre-Trial Injunctions

. Yes.
Application with or without notice.
Injunctions will only be granted at the discretion of the Court. The Plaintiff must provide a bond that is fixed by the Judge.
Plaintiff must prove that if the preliminary injunctions are not adopted, the following risks may exist:
1.The Defendant may become insolvent.
2. The Plaintiff may suffer damage from the Defendant before the judgement is issued.

An injunction will normally be granted in 2-4 weeks.

Certain injunctions will be available for certain foreign proceedings.

Freezing/Mareva Injunctions

Yes.
Application without notice and can be granted immediately.
Available for foreign proceedings.
Requirements:
1. Cause of action in Spain;
2. Good arguable case;
3. Defendant having assets within the jurisdiction; and
4. Real risk that the defendant may dissipate those assets before judgment can be enforced.
Injunctions will only be granted at the discretion of the Court, but always the plaintiff must offer a guarantee that is fixed by the Judge, in order to pay the defendant damages if the trial Judge decides that the injunction should not have been granted

Pre-Trial Depositions

Available for proceedings in Spain.
Pre-trial depositions will only be ordered at the discretion of the Court, but the plaintiff is entitled to a guarantee that is fixed by the Judge. The guarantee will be cancelled when the plaintiff files the claim.

Discovery/Disclosure

Yes.
The party must disclose all the documents and evidence which supports his case. A party is not obliged to disclose documents adverse to his case.

Representation

Each party must present powers of attorney in order to be represented in the Court.

The parties are represented in the Court by the "Procurador" of Tribunals and by a lawyer. The function of the Procurador is filing writs and receiving the notifications from the Court, whilst the lawyer has the responsibility of defending the party

Trial

Oral Evidence

Yes. In Spain with the new Civil Proceeding Law that came into force on 1 January 2001, the process is conducted orally. There is a hearing in order to ascertain the factual issues and to propose all the evidence, and then the definitive hearing where the evidence is given

Enforcing Judgement/Jurisdictional Issues

Money judgement:
At any given moment after the judgement is issued, the provisional execution may be requested.
The party who requests the provisional execution does not have to give any guarantee (this is one of the main points fixed by the new Law and it has been criticised; but it is still presently in force).
Enforcement:
Spain, as a member of the EU has signed the same conventions as all the other members of the EU.

Costs

The Bar Association has published estimated fees for all kind of cases. These fees are considered as minimums and usually the Court refers to them as the pertinent fees.
In addition, other kind of fees may be agreed with the client, but in order to recuperate them from the other party, it is advisable to fix them according to the published fees.
In every judgement, the Court usually establishes that the party whose actions are accepted has the right to recover the Court costs incurred by the other party

Appeals

Yes. There is a Court of Appeal in every Province in Spain. The appeal is practically always admitted and is always carried out in writing.
Concerning the time of the appeal, it could be between one or two years, there is not much experience because of the new Civil Proceedings Law that came into force on 1 January 2001