On 1 September 2017, the Dutch Supreme Court ruled that the appeal period ends three months after the day on which the court has given its judgment, at the end of the day with the same number as the day on which the judgment was given (ECLI:NL:HR:2017:2225). However, when the appeal period of three months expires in a month that does not have a day with the same number due to the fact that it is shorter, the appeal period ends on the final day of that month. Therefore, it is important to be aware that the appeal period relating to judgments given on certain specific days might end earlier than expected.
Under Dutch law, the appeal period for substantive proceedings is three months. According to the General Extension of Time Limits Act, if the day on which the appeal period ends is a Saturday, Sunday or a public holiday, this period is extended to the first following business day.
At first glance, this might seem like a clear-cut rule. For example, if the court gives a judgment on 9 October 2017, the appeal period ends on 9 January 2018. In practice, however, this can lead to some confusion. For example, if the court gives a judgment on 31 March, the appeal period is supposed to end on 31 June. However, such day does not exist, since 30 June is the final day of that month. In that case, does the appeal period end on 30 June or 1 July?
As follows from the wording of the Dutch Code of Civil Proceedings (DCCP), sections 339, 358, 402 and 426, the appellant has to bring an appeal against a judgment within three months, counting from (te rekenen van) the day of the judgment. Does this mean “three months beginning on”, or, “a period of three months after the day of” the judgment? The Dutch Supreme Court ruled in 1919 that the wording of the DCCP should be explained in such way that an appellant has three months after the judgment to bring an appeal (HR 19 December 1919, NJ 1920, p. 82). This means that, using the example above, the appeal period would end on 30 June. This was confirmed by the Supreme Court in a ruling dated 12 March 2004 (ECLI:NL:HR:2004:AO1315).
On 1 September 2017, the Supreme Court considered the appeal period regarding a judgment which the subdistrict court had given on 29 February 2016, i.e. on the final day of a month that is shorter than the month in which the appeal period would expire (May). The claimant filed an appeal on 31 May 2016, possibly following the reasoning that the appeal period started on the day after the judgment (1 March 2016) which meant it would expire at the end of 31 May. However, the Court of Appeal ruled that the appeal had been lodged after expiry of the time limit.
Contrary to the opinion of the advocate general, the Supreme Court ruled that the appeal period ended on 29 May 2016 (at the end of the day) and therefore dismissed the appeal in cassation.
The Supreme Court took into account the following considerations. The rule that an appellant has to bring an appeal within three months counting from (te rekenen van) the day of the judgment, means that the day of the judgment itself does not count. As a consequence, the appeal period ends three months after the judgment, at the end of the day with the same number as the day of the judgment. To illustrate this, the Supreme Court mentioned hypothetical judgments given on 28 or 29 February, 30 April and 30 September. The appeal period in such cases would end at the end of the day on 28 or 29 May, 30 July and 30 December respectively (of course notwithstanding applicability of the General Extension of Time Limits Act), because in any case an appellant has had three full months recourse to a remedy.
For the sake of completeness, the Supreme Court ruled that the only exception to this rule is when the appeal period of three months expires in a month that does not have a day with the same number due to the fact that it is shorter. In that case the appeal period ends on the final day of that month.
With this in mind, the appeal period relating to judgments given on 31 January, 31 March, 31 August, 29 and 30 November might end earlier than expected, namely on 30 April, 30 June, 30 November and 28 February respectively. In addition to this, the appeal period relating to judgments given on 28 February, 30 June, 30 September and 30 November ends on 28 May, 30 September, 30 December and 28 February. Therefore, when calculating the appeal period with regard to judgments given on these dates it is important to remember that the appeal period does not necessarily end on the final day of the month following three months after the month in which the judgment was given.
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