Supreme Court Litigation

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Winning the case at the highest level

Part of our DNA

Litigation at the highest level and De Brauw have been synonymous since 1871 because it requires specialist legal skills and a detailed and rigorous approach: legally and strategically. We handle Supreme Court litigation in all areas of civil and administrative law, in particular corporate litigation, class actions, employment, and intellectual property.

A curious critique of the status quo

As public opinion changes, the law often follows. What happens in society is highly relevant in Supreme Court cases. A constant critique of the status quo is at the core of our litigators' approach. This curiosity and 360 degrees' perspective has led to us soliciting many ground-breaking decisions from the Dutch Supreme Court.

Strategic oversight, from the ground up

If we take on the case, we act as the client’s Supreme Court counsel throughout the appeal, working in close consultation with the lawyers who handled the matter during the fact-finding stages. It may be that in some cases we may also get involved when the matter is still before the lower courts, if an appeal to the Supreme Court is being contemplated / anticipated. Therefore, we typically begin with an assessment of our client’s options for appealing an unfavourable decision of a lower court, or their opportunities to successfully defend it.

Recent Matters

19 July 2019

Supreme Court confirms Dutch State liability in Mothers of Srebrenica ruling

The Supreme Court announced its final ruling in one of De Brauw's ongoing pro bono matters: the Mothers of Srebrenica versus the Dutch State.This landmark ruling confirms the decision of The Hague Court of Appeal that the Dutch State is liable for the losses suffered by the relatives of the 350 Muslim men that were forced to leave the compound of Dutchbat on 13 July 1995. However, the Supreme Court limited the State’s liability to 10%. Both the Dutch State and the Mothers of Srebrenica had appealed this decision, arguing the extent to which the Dutch State had control over the situation and thus was responsible for protecting the Muslim men from being murdered by the Bosnian Serbs, with the consequence of holding the State liable for either more or fewer deaths. The chapter now closes on the battle we started out on together with the Mothers of Srebrenica in 2017 to defend the Court of Appeal's decision to keep the Dutch State accountable for Dutchbat's actions. Johan Valk was involved from an early stage and reflects on this ruling: "This matter was extremely complex and inherently emotional. At the same time, chances of survival in different scenarios were boiled down to percentages. The experience and expertise of our firm have been key to be able to navigate this playing field in front of the Supreme Court. Being able to give access to that level of the justice system is a responsibility we need to take seriously as a firm, and I think we do. I am grateful that we were able to help give these brave women a voice and the possibility to confront the Dutch State with its actions. We are glad that the Court of Appeal's decision to hold the Dutch State responsible still stands, even though we aimed to extend the State's responsibility much further than ten percent. I sincerely hope the Mothers of Srebrenica will now find a sense of closure." The De Brauw team working on this matter consisted of: Jan de Bie Leuveling Tjeenk, Maarten Schenck, Johan Valk and Christiaan Russcher.
31 October 2014

Stefan Sagel elicits landmark Supreme Court ruling: right to strike expanded

The Dutch right to strike has been expanded. Traditionally trade unions are allowed to organise a strike in companies when they have a conflict with that company. Now unions are also allowed to call employees of clients or suppliers out on strike in order to put pressure on their employer. This is the result of a ruling by the Supreme Court of the Netherlands on Friday, 31 October, in a conflict between a company based in Amsterdam and two trade unions, FNV Bondgenoten and Het Zwarte Corps (HZC). According to Stefan Sagel, who defended the unions during the proceedings before the Supreme Court, this ruling means a breakthrough in the Dutch right to strike. ‘The right to strike is based on judgments by the Supreme Court and on the European Social Charter. This ruling is also based on the Social Charter.’ Although the ruling involves a specific conflict in the Port of Amsterdam, it will have a broader impact, according to Sagel. ‘Take for instance a strike at a chain of supermarkets, in which the unions are also striking against Coca-Cola and Mars, to force them to put the supermarkets under pressure. If this action at the suppliers reasonably contributes to the target, this action in principle is legitimate.’TeamStefan Sagel and Kim van Belle
27 June 2014

Pro bono matter: pilot demoted by airline company

As part of our pro bono initiative, De Brauw acts as legal counsel in proceedings before the Dutch Supreme Court in a matter that relates to the criteria that have to be applied to assess whether a demotion / degradation can be imposed on an employee unilaterally. The matter concerns a pilot who was demoted by his airline company from Captain to First Officer because of the way he carried out a flight. The decision of the Supreme Court is to be expected in the first half of 2015. Team: Stefan Sagel, Janneke van der Kroon and Victoria Wiertz
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Considering an appeal to the Supreme Court?

We can help you weigh your options and decide. We will scan the matter to highlight where the possible points of appeal are, indicate any potential defence(s), and comment on your likelihood of success.

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Having excellent Supreme Court barristers available in all stages of proceedings gives a great advantage.

Legal 500, 2021


28 June 2021

Taxpayers face difficult choices in seeking resolution for international tax disputes

Multinational companies increasingly face situations where two or more countries seek to tax the same profits. Recently enacted and upcoming legislative changes aim to address the perceived undertaxation of multinationals, and to redistribute taxing rights on corporate profits to "market jurisdictions". The origins of these changes include the OECD's BEPS Project, the political agreement among the G7 on radical changes to the taxation of multinationals, and the ambitious business taxation reforms announced by the European Commission. As the new regulations are likely overreaching, complex and untested and tax authorities are taking a more assertive attitude, risks of multiple taxation will inevitably rise.
16 December 2020

Dutch Supreme Court goes back to roots of participation exemption

For the first time in nearly 18 years, the Supreme Court has had the opportunity to shed light on the applicability of the participation exemption to benefits derived from uncovered call options. In its decision of 6 November 2020, the Supreme Court ruled that only covered call options can constitute a participation within the meaning of the participation exemption under Dutch tax law. By issuing this ruling, the Supreme Court emphasised the ne bis in idem principle that forms the basis of the participation exemption. However, benefits derived from the sale of shares that form a participation are not always exempt. The Supreme Court has reiterated that benefits must originate from an increase in value of the underlying participation. A benefit obtained by using a loophole in regulation – such as benefits obtained from German cum/ex trades – does not qualify as such and therefore cannot be exempt under the participation exemption.
17 November 2020

Foreign investment funds can get Dutch dividend withholding tax refund, on strict terms

The Dutch Supreme Court recently issued its ruling in the Köln Aktienfonds Deka (KA DEKA) case. Taking into account the ECJ's decisions in KA DEKA and Fidelity Funds, the Dutch Supreme Court - reversing its 2015 decision – ruled that foreign investment funds qualifying as Undertakings for Collective Investment in Transferable Securities (UCITS) are in principle objectively comparable with Dutch resident Fiscal Investment Institutions (FIIs). This means that, based on the EU principle of free movement of capital, foreign investment funds may be eligible for a refund of Dutch withholding tax paid on dividends derived from investments in shares in Dutch companies. This is conditional on these funds meeting the shareholder and distribution requirements that apply to Dutch FIIs. In addition, the foreign funds must agree to make a "substitute payment" to the Dutch tax authorities (DTA) to qualify for an actual refund. Although the ruling acknowledges foreign investment funds' right to a refund, it remains to be seen how many of them will be able to validate their claims in practice. Furthermore, it is not certain whether the requirements that must be met to actually qualify for the refund are compatible with EU law in all respects.