Prethodna ovrha u Nizozemskoj: kako zamrznuti imovinu

In the Netherlands you freeze a debtor’s assets before judgment with a prejudgment attachment (conservatoir beslag). You ask the interim relief judge (voorzieningenrechter) for leave under Article 700 of the Dutch Code of Civil Procedure (Rv), the debtor is not heard, and leave is often granted within a few working days. The main limitation: the attachment only secures assets, gives you no priority over other creditors and is levied at your own risk if your claim fails.

What does a prejudgment attachment do, and what not?

A prejudgment attachment freezes an asset so that it is still there when you obtain a judgment. You cannot sell the asset or have frozen money paid out until you hold an enforceable title.

Once you obtain an enforceable judgment and serve it on the debtor (and on any third party), the attachment becomes an enforcement attachment by operation of law (Article 704 Rv). If your claim is finally dismissed, the attachment lapses automatically.

An attachment gives no preference. Several attaching creditors share in proportion to their claims, behind mortgages, pledges and statutory preferences. Under Article 33 of the Bankruptcy Act (Faillissementswet), all attachments lapse when the debtor is declared bankrupt; see our guide on stečaj u Nizozemskoj.

An attachment on a bank account catches the balance at the moment the bailiff serves it, not later payments. An attachment is also levied at your own risk: under settled Supreme Court (Hoge Raad) case law, a creditor whose claim is dismissed is in principle liable for the damage the attachment caused, without the debtor having to prove fault.

Which terms will you encounter?

What does the judge require before granting leave?

Under Article 700(2) Rv the petition states the type of attachment, the right you rely on and the amount of the claim, and the judge decides after a summary review. For movable goods, bearer rights and registered shares you must also show a well-founded fear that assets will be removed (Articles 711 and 714 Rv).

Set out what the debtor owes, on what legal basis and how you calculated it, with the contract, invoices and correspondence attached. The judge does not hear evidence; the question is whether your claim is plausible on paper. The judge fixes the amount of the leave, including interest and costs.

You must disclose the debtor’s known defences, any counterclaim and related proceedings. The national attachment guidelines for the courts (Beslagsyllabus) require this, and concealing a known defence is one of the most common reasons for an attachment to be lifted.

Concrete facts that support urgency include repeated non-payment, transfers of assets to related parties or abroad, a debtor who no longer responds and other creditors suing. A bare statement that the invoice is unpaid is weak. Under Article 701 Rv the judge may require you to provide security for the damage the attachment may cause.

Kako se postupak odvija, korak po korak?

A lawyer files the petition with the interim relief judge of the district court where the assets are located or where the debtor or the third party lives (Article 700(1) Rv). The judge decides on the papers, often within a few working days and sometimes on the same day.

The bailiff then levies the attachment. For real estate the attachment is registered with the Land Registry (Kadaster), after which the property cannot be sold or mortgaged free of it. For movable goods the bailiff draws up an inventory on site.

For a bank or customer, the bailiff serves the attachment on that third party. Under Articles 720 and 476a Rv the third party must declare what it holds once two weeks have passed, or after four weeks if the debtor asks for that in time. If the main action is started after the attachment, you must serve a copy of the summons on the third party within eight days (Article 721 Rv).

Unless proceedings are already pending, you must start the main action within the period set in the leave, which is at least eight days after the attachment (Article 700(3) Rv). If you miss it, the attachment lapses. You can only ask for an extension before the period expires.

Which assets can you freeze?

In principle you can attach anything of economic value that belongs to the debtor, with a few statutory exemptions. The practical question is which asset is effective.

Other variants exist. Under Article 730 Rv you can attach a specific asset to secure its delivery, for example goods sold but not delivered. Under Article 724 Rv a creditor who itself owes the debtor money can attach that sum in its own hands. Between spouses, Article 768 Rv allows measures to preserve the community of property during a division.

Evidence can also be secured by attachment if there is a real risk that documents or data will disappear. The bailiff or a custodian keeps the material; you only get access through a separate claim for inspection under Article 194 Rv. For intellectual property, Article 1019b Rv gives a specific basis.

How can the debtor challenge an attachment?

The debtor can ask the interim relief judge in summary proceedings (kort geding) to lift the attachment under Article 705 Rv. The judge lifts it if formalities were breached, if the claim appears summarily unsound, if the attachment is unnecessary, or if sufficient security is provided for a money claim.

Alternative security is often the fastest route: a bank guarantee for the amount of the leave obliges the creditor to release. Excess is another argument, for example an attachment on far more assets than the claim requires. A petition that left out a known defence can also be enough. See our article on podizanje dodatka za zimski vrt and the glossary entry on postupak za prethodnu zaštitu.

If the main claim is dismissed, the creditor is in principle liable for the full damage, including lost contracts and extra financing costs. Document the harm while it occurs.

Is an attachment worth it?

Three questions decide this: what can be frozen, what it costs and whether you are ready for the main action. Public registers such as the Chamber of Commerce (KVK) and the Kadaster tell you a lot before you file.

You pay court fees, bailiff’s fees and legal costs upfront, and you carry the damages risk if the claim fails. In practice many debtors who ignored demand letters start negotiating within days of an account being frozen. Our vodič za naplatu dugova u Nizozemskoj covers the steps before this one.

Can you use a Dutch attachment in a cross-border dispute?

Yes. A Dutch court can grant leave to attach assets in the Netherlands even when the main case is heard abroad; the leave then states the period for starting proceedings there.

Within the EU, the Brussels Ia Regulation allows provisional measures in one member state while another hears the merits. For bank accounts in other member states, the European Account Preservation Order offers a single procedure; Denmark does not take part. Once you have a judgment, read our articles on the priznanje i izvršenje stranih sudskih odluka i međunarodna naplata duga.

Što biste trebali provjeriti kao vjerovnik?

• Which assets does the debtor have in the Netherlands, according to the KVK, Kadaster and other registers?
• For movables or shares: which concrete facts show a risk that assets will be removed?
• Have you listed the debtor’s known defences in the petition?
• Can you start the main action within the period in the leave (at least eight days)?
• Is your claim strong enough to carry the damages risk if it fails?

Što biste trebali provjeriti kao dužnik?

• Did the petition mention your defences and any counterclaim?
• Was the main action started in time, and was the summons served on the third party within eight days?
• Is the attachment out of proportion to the claim?
• Can you offer a bank guarantee to have the attachment lifted?
• Are you documenting the damage the attachment causes?

Što možemo učiniti za vas s prilogom prije presude?

As korporativni odvjetnik we act for creditors and debtors in attachment matters.

• We trace the debtor’s assets through public registers before filing.
• We draft the petition, including the debtor’s known defences.
• We instruct the bailiff and follow up the third-party declarations.
• We start the main action within the period set in the leave.
• For debtors, we start summary proceedings to lift the attachment or arrange substitute security.
• We assess and pursue damages after a wrongful attachment.

Rezime

• Leave for a prejudgment attachment is granted by the interim relief judge under Article 700 Rv without hearing the debtor.
• The main action must follow within the period set, which is at least eight days; otherwise the attachment lapses.
• The attachment gives no priority and lapses on bankruptcy (Article 33 Fw).
• The debtor can have it lifted under Article 705 Rv, for example by providing security.
• If the claim fails, the creditor is in principle liable for the damage.

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