Cassation proceedings before the Dutch Supreme Court

The Supreme Court has the last word. It is generally assumed that conducting proceedings before the Dutch Supreme Court is highly complex and has a low success rate.

This is not necessarily true, in our experience. Over the past few years, the Supreme Court has upheld many of the appeals we brought before it. We have also had a hand in a number of ground-breaking tax-related judgments that have proved to be of fundamental importance to the uniformity and development of the law. Our success is due to our designated cassation team, which can draw on in-depth expertise and vast amounts of experience in litigating cases before the Supreme Court.

It goes without saying that an appeal in cassation should not be lodged without carefully thinking things through. That is why, before initiating cassation proceedings, we review the case's chances of success, for instance by performing a quick scan or preparing an in-depth cassation opinion. We give a brief description of how we go about this below.

Our strengths

It goes without saying that an appeal in cassation should not be lodged without carefully thinking things through. That is why, before initiating cassation proceedings, we review the case's chances of success, for instance by performing a quick scan or preparing an in-depth cassation opinion. We give a brief description of how we go about this below.

We have a designated cassation team that knows its business. The team is led by Angelique Perdaems, who is more than happy to apply the knowledge and experience she gained as a researcher at the Tax Division of the Supreme Court for your benefit. Angelique's experience in conducting cassation proceedings is extensive and she knows what to focus on. Thanks to our legal expertise and the wide-ranging experience we have built up over the years, we have a good idea of the chance of success a case has before we litigate it.

Our approach

We cannot usually tell at the start whether an appeal in cassation will be successful. To map out the chances of success, we have developed an efficient three-step strategy. We can either go through all of the steps or choose only the most relevant one. Before we start, we will tell you what you can expect of us and what our fees will be. We will obviously customise our services to your particular situation. The three steps in our strategy are:

1) Quick Scan

A quick scan involves reading through the ruling of the court of appeal (without looking at the underlying procedural documents) and reviewing the legal construct. Based on our findings, we will offer you our written opinion on whether our cursory review has given us any leads that an appeal in cassation might be successful. This is a quick way for you to see whether cassation proceedings might be worthwhile for you.

2) Cassation opinion

A cassation opinion is an in-depth and detailed opinion on the chances of success of an appeal in cassation. In this step, we study both the ruling of the court of appeal and all the underlying procedural documents. The court of appeal’s ruling may be flawed, for instance because the court disregarded some of the arguments presented in the procedural documents or because the ruling lacks grounds. This will not come to the fore without a thorough study of all the procedural documents.

Our written cassation opinion will be based on our comprehensive file review combined with an analysis of the applicable rules and regulations and case law. In this opinion, we will tell you very clearly whether or not we recommend referring the matter to the Supreme Court. If we see a chance of success, we can proceed to the next step. With the cassation opinion finished, most of the groundwork has been done.

3) Cassation proceedings

Sometimes issues are so juristic and fundamental in nature that there is no need for Steps 1 and 2. We will then start to prepare the grounds for cassation right away, whereby we will challenge the flaws in, or puzzling aspects of, the ruling of the court of appeal. We will provide well-reasoned arguments for these grounds.

After the appeal in cassation has been filed, the Ministry of Finance will respond in a statement of defence. We will study this statement to determine whether it warrants a further response on our part, either in the form of oral arguments, written arguments or a reply. The appropriate form depends on the nature of the case and the contents of the statement of defence. We offer our clients added value in tax-related cassation proceedings: Dutch law stipulates that oral or written arguments can only be submitted to the Supreme Court by lawyers.

After the preparatory phase, the Advocate General (an independent adviser to the Supreme Court) may submit an opinion on the appeal in cassation. This opinion is typically a highly legal document setting out the relevant case law and referring to the applicable literature. We then have a short 14 days to reply in a letter (the so-called 'Borgerbrief') to the Advocate General's opinion.

What if the Ministry of Finance submits and appeal in cassation?

If Ministry of Finance files an appeal in cassation against a ruling on your case, we can still help you by mounting a defence against the grounds for cassation and by ascertaining whether you might be able to file a cross-appeal in cassation.

The ideal cassation process

Clearly, it depends on the case whether or not we see cause to go through all three steps. If we believe that an appeal in cassation might well be successful, the first two steps might be redundant. The best strategy varies from case to case. Thanks to our long-standing experience, we know which approach to take to give you the best chance of success.

Please do not hesitate to contact Angelique Perdaems.