Preliminary attachment
Written by:
Hein Kernkamp
What is a preliminary attachment?
In the Netherlands, a preliminary attachment is protective attachment made by the bailiff in anticipation of the outcome of Civil legal proceedings. The imposition of such a protective attachment requires permission from the preliminary relief judge of one of the Netherlands District Courts. The purpose of a protective attachment is to freeze the situation as it is, so that the later judgment of the judge can actually be enforced.
Leave of the preliminary relief judge
Article 700 of the Dutch Code of Civil Procedure stipulates that the preliminary relief judge of the court is required for the imposition of a protective attachment. It has also been stipulated that the leave must be requested in a petition to be submitted by a lawyer, in which the nature of the attachment to be imposed and the right invoked by the applicant are described and, in the case of a monetary claim, the amount thereof. Furthermore, the petition must meet all legal requirements and any additional requirements, depending on the type of attachment for which leave is requested.
Types of preliminary attachments
The law distinguishes between the following types of provisional attachments:
- attachment of movable property
- attachment of shares and securities
- third party attachment (such as bank attachment or wage attachment)
- self-attachment (attachment under the creditor himself)
- attachment of immovable property
- arrest of ships
- arrest of aircraft
- attachment for legal delivery purposes
- attachment of joint assets
- marital attachment
- attachment against aliens and European bank attachment
- attachment for evidence purposes
The attachment procedure
After submission of the petition, the preliminary relief judge will usually deal with the application substantively the same day or the next day. This concerns a summary examination, in which the request is assessed against the legal criteria and in which the mutual interests are taken into account. If all requirements and criteria are met, the preliminary relief judge will grant the leave. If no substantive procedure is pending about the dispute, the preliminary relief judge will also determine the period for bringing the main action.
Unilateral request
It is an ex parte request. The other party will not be heard at this stage of the proceedings, unless otherwise provided for by law, such as attachment of wages or if the court decides otherwise.
Bailiff enforces the protective order
If the leave has been granted, this can be handed over to the bailiff, after which the bailiff makes the attachment. The attachment writ, together with the attachment leave, is also served upon the other party, who thus becomes aware of the attachment for the first time.
summary proceedings to lift a seizure
The other party, which has not been heard by the judge until the moment of attachment, has the option to bring summary relief proceedings in which he demands the immediate lifting of the attachment. Certainly where the attachment has far-reaching consequences in business operations, the court will try to have the interim relief proceedings to take place as soon as possible. This will partly restore the imbalance caused by not hearing the debtor in the first place.
Grounds for lifting the attachment
Pursuant to the provisions of Article 705, paragraph 2 of the Code of Civil Procedure, the preliminary relief judge lifts the attachment if it becomes apparent in these summary proceedings that the invoked right to attach is invalid or that the attachment is unnecessary. The preliminary relief judge will also lift an attachment for a monetary claim if sufficient replacement security is provided, such as, for example, by means of a bank guarantee.
Burden of proof
According to case law of the Netherlands Supreme Court, it is up to the person who seeks the lifting of the interim protective order to demonstrate, with due observance of the limitations of the summary proceedings, that the claim alleged by the attaching party is unsound or that it continuation of the attachment cannot be justified for other reasons.
Damage at the risk of the seizor
In summary proceedings, maintaining the seizure is still relatively easy. In the main proceedings, however, the attaching party will have to be awarded his claim under the normal rules of evidence. If the claim is ultimately rejected, the attaching party is liable for the damage suffered by the other party as a result of the attachment. Seizures are therefore not without obligation. Anyone who seizes property of others does so at their own risk.
Further information
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