Joram Verstoep, 21 april 2023

Pre-judgment attachments under Dutch law

Introduction

Under Dutch law, a creditor can levy an attachment to freeze certain assets of his debtor. This can be done prior to iniating proceedings on the merits of the claim. Such pre-judgment attachment serves the purpose of preventing a debtor from frustrating recovery by his creditor, e.g. by transferring, removing, or hiding assets.

A pre-judgment attachment can be levied both on tangible assets – such as real estate, inventory – and on intangible assets, like receivables. The attachment that is most commonly levied is on the bank accounts held by the debtor.

Leave from the District Court

To levy pre-judgment attachments, a creditor must obtain leave from the District Court. The request to levy such attachments should briefly set out the claim for which recourse is sought, the assets one seeks to attach and the time frame within which proceedings will be brought to adjudicate the claim. The claimant is allowed to ask leave for an additional 30% for costs and interest on the claim.

The request is considered without close scrutiny of the merits of the claim and (usually) without hearing the debtor. The court will grant leave except when the claim is “plainly without merit”. The request may further be denied if there is no reason at all to doubt the solvency of the other party, if sufficient security is in place, or e.g. if the other party is a government entity or a sovereign foreign state.

It is important to keep in mind that leave to levy pre-judgment attachments does not constitute court support for the position of the creditor.

Levying the pre-judgment attachment

After obtaining leave, the claimant will instruct the court bailiff to attach the relevant assets. The bailiff will serve notice to the debtor and, where relevant, to interested third parties (for example: the bank). Failure to respect an attachment constitutes a criminal offence and will render the offender liable.

An attachment of a bank account covers the balance of the account at the moment the notice is served. The bank is obliged to disclose what amounts have been attached within four weeks from the day of the attachment. Payments made into the account after the attachment is levied, are not covered by the attachment. For that reason, creditors sometimes ask to levy multiple attachments on the same bank accounts.

Lifting the pre-judgment attachment

The attachment remains in place for the entire duration of the proceedings on the merits, unless it is lifted by the court at the demand of the defendant. If the claim is ultimately denied, the attachment will be lifted and the claimant will be liable for any loss suffered as a result of the attachment.

Even if the claims are partially allowed, levying attachments is not regarded as wrongful per se. For that reason, it is in the creditor’s interest to ensure that each attachment covers every (purported) claim he may have.

Assistance

Should you have any questions, comments or require assistance regarding levying pre-judgment attachments under Dutch law, please do not hesitate to contact us.

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