District Court of North-Holland: a preliminary injunction may be considered if the disputed decision to refuse a permit is unlawful beforehand or if the financial interest in the case were to be so substantial that it would amount to an acute financial emergency situation for the applicant – a threshold that is not met by the sole risk of damages claims and reputational damage on account of the inability to deliver military goods due to a denied export license.
On 23 April 2021, the District Court of North-Holland rendered a preliminary judgment concerning a denied export licence application. In July 2020, the applicant – a Dutch private limited company (“BV”) – contracted with a French company to install two ammunition lifts in two military vessels. The French company was to deliver these vessels to the navy of the United Arab Emirates (“UAE”), and for which the French authorities had issued an export licence. In September 2020, the applicant submitted in turn an application in the Netherlands for an export licence in relation to the supply of the two ammunition lifts for the military vessels, specifying that the end-user was the UAE. In February 2021, the Dutch Minister of Foreign Trade and Development Cooperation (the “Minister”) rejected the licence application however, on account of the UAE’s involvement in the Yemen conflict.
Rejected licence application by the Minister
The Minister explained the rejected licence application by a “presumption of denial” that applies in the Netherlands on account of the UAE’s participation in the Saudi-led coalition in Yemen. Accordingly, only goods for which it has been irrefutably established that they cannot be used in the Yemen conflict are authorised to be exported. In September 2020, the United Nations Group of Eminent International and Regional Experts on Yemen (‘UN Yemen Group”) noted however that the UAE still played a clear role in the conflict in Yemen. The Report explained that the UAE navy has been active in the conflict in Yemen and was associated with human rights violations, particularly through the maritime blockade of Yemen. The Minister thereby assessed that even though the two vessels were still to be completed, they were perfectly suited for use in maritime blockades and that it could not thereby be conclusively determined that this transaction would not contribute to the conflict in Yemen. The application was also negatively assessed against the 2nd and 6th criteria of the EU Common Position on Arms Exports (‘’EU Common Position’’). These criteria relate to the respect for human rights and international humanitarian law in the country of final destination, respectively the behaviour of the buyer country as to the international community and respect for international law. According to UN Yemen Group there are clear indications that UAE violated humanitarian law and the Minister also pointed to the UAE’s designation by the Panel of Experts on Libya as a violator of the UN arms embargo on Yemen.
Presumption of denial
“Since 27 November 2018, [in the Netherlands] a presumption of denial was instituted on arms exports to the UAE and Egypt. This presumption of denial had previously been introduced for Saudi Arabia and has in the meantime been reversed for Egypt. The more restrictive policy was prompted by a report by the [UN Yemen Group] which posited a link between the navies of the coalition countries and violations of human rights and international humanitarian law. In this context, ‘presumption of denial’ means that an export licence for military goods will not be issued for these end-users unless it has been incontrovertibly demonstrated that the goods will not be used in the conflict in Yemen. In contrast with normal policy on assessing the risk of arms exports, the burden of proof under the new policy is thus reversed”. 
District Court of North-Holland dated 23 April 2021
By way of an interim injunction, the BV argued that the Minister’s decision was not supported by adequate reasoning and therefore based on incorrect grounds. It pointed to the French authorities’ different assessment of the EU Common Position resulting in the violation of EU principles and treaty freedoms. It requested that the Court declare the Minister’s assessment and refusal to grant the licence erroneous and oblige the Minister to grant the licence. The BV also requested the Court to approve the supply of the lifts (or at least in part) pending the objection and appeal proceedings or to instruct the Minister to respond to the BV’s objection within a timeframe of two days. The BV argued that it had a major financial interest in fulfilling its contractual obligations and that failure to do so would result in substantial loss, as it could face claims for damages and reputational damage for failing to deliver the ammunition lifts. The Minister in turn argued that the Dutch arms export policy is a national competence, that the EU Common Position is reviewed as a minimum standard, but does not affect the right of individual EU Member States to apply more restrictive rules. In the preliminary relief proceedings, the Court explained that a preliminary injunction may be considered only if the financial interest in the case were to be so substantial that it would amount to an acute financial emergency situation for the applicant. In this case, while the financial interests were argued to be substantial, the applicant did not state that the continuity of its business was threatened. The Court declared that the situation would not amount to an acute financial emergency situation. The Court also explained that the preliminary assessment of the lawfulness of the disputed decision played an important role in preliminary relief proceedings but that it could not be concluded that the decision to refuse the permit was unlawful beforehand – rather there is no doubt as to the lawfulness of the Minister’s decision. It thereby dismissed the request for a preliminary injunction.
 Court North-Holland 23 April 2021, ECLI:NL:RBNHO:2021:3688 (first published: 3 May 2021).
 Retrieved on 31 May 2021, from: https://www.government.nl/documents/publications/2019/08/01/presumption-of-denial-for-countries-engaged-in-the-yemen-conflict.