Sensitive information in a Dutch procedure. What to do?
It all seems so obvious in the Netherlands: transparency in a procedure. Anyone can go to a local courthouse on a random day and witness a court procedure. In the Netherlands especially the police court is popular among students. But are there any limits to that transparency? What if a company does not want to make certain sensitive information public? Can you do something about this as an entrepreneur?
According to article 121 of the Dutch Constitution, all procedures in court will take place in public and all judgments shall be pronounced publicly and motivated. The reason behind the transparency is that judges can be controlled by other judges and perhaps more importantly that those judgements are open to public scrutiny. This is because it is possible for everyone to attend any court procedure, thus making it easier to address or correct the court if the judgment is unfair.
Even though transparency is important, it sometimes makes a procedure in the Netherlands more difficult for a company. For example: a company that is involved in a procedure may have documents proving that they are right. In a normal situation that company will submit those documents providing the evidence to win the case. But what if those documents are confidential? Will this company be forced to make a decision between winning the procedure, but give important information to competitors or losing the procedure by not submitting the documents? The answer to this question is fortunately no. Procedures can be held, upon request, behind ‘closed doors’.
Like everyone else in the Netherlands, companies have the right that their privacy is respected. This right also includes that sensitive documents should remain private. Under Dutch law it is possible to ask the court that the procedure should take place behind ‘closed doors’. The requesting company will then have the obligation to provide the court with a motivated request in which it has to be made clear why these documents are so sensitive. After reviewing the documents or based solely on the request the court shall give permission for such a procedure or not. If the court decides not to give permission for such a procedure, it will be up to the company to decide whether they will make the information public or not. The consequence of this can be that the company has to choose whether the information is so important that losing the procedure will be less harmful than making the information public. This is not a decision an entrepreneur wants to make.
Given the major interests that can play in a procedure it is important to ask for advice well in advance. This is especially the case if confidential documents have to be used to successfully bring the procedure to an end.
Jan Hendrik Vogelsang, attorney Corporate Litigation