Introduction
Legal remedies against enforcement of a judgment offer crucial protection when a court ruling is enforced immediately, even during an ongoing appeal. These legal instruments can make the difference between maintaining the status quo and irreversible financial or material damage. In addition to appeals, other higher remedies, such as cassation or opposition, can also influence the enforceability of a judgment.
In Dutch legal practice, judgments in 99% of civil proceedings are declared provisionally enforceable, allowing immediate enforcement despite an appeal having been lodged. The lodging of an appeal, such as an appeal, cassation or opposition, may affect enforcement, depending on whether the judgment has been declared provisionally enforceable. This applies to various types of judgments, including judgments and rulings.
What this Guide Covers
This guide explores all available legal remedies against immediate enforcement, from incidental claims in appeal proceedings to urgent proceedings before the preliminary relief judge. We do not deal with the substantive assessment of judgments themselves, but only with the procedural options for preventing enforcement.
Who This Is For
This guide is designed for debtors facing the threat of enforcement, creditors who want to understand their position, and legal professionals seeking effective protection. Whether you want to challenge a final judgment or understand your options in the case of a judgment declared enforceable, you will find concrete legal strategies here.
A judgment may be declared enforceable, allowing for immediate enforcement. A judgment can be enforced immediately if it has been declared provisionally enforceable. Parties can demand enforcement as soon as the conditions are met. In principle, a judgment should be provisionally enforceable unless special circumstances justify otherwise. Enforcement affects the interests of both parties and requires careful consideration of the interests involved by the court.
Why This Is Important
When enforcement of a provisionally enforceable judgment is imminent, this often creates an uneven playing field in which the convicted party is confronted with enforcement measures while the appeal is still pending. The timely use of the appropriate legal remedies can prevent irreversible damage.
What you will learn:
- When and how provisional enforceability works and can be challenged
- The application of the new Strandhotel criterion since 2019
- Practical steps for incidental claims and summary proceedings
- Strategic considerations in the cost-benefit analysis of legal remedies
What is Enforcement of a Judgment
Enforcement means that a court ruling is actually enforced by a bailiff who seizes assets or takes other enforcement measures. This process transforms a judgment from a paper decision into actual compliance with the obligations imposed. A judgment can only be enforced if certain conditions are met and enforcement can be based on the ruling.
For effective enforcement, the winning party needs an enforceable title – usually the certified copy of the judgment – issued by the court clerk. The judge may order the enforcement of a judgment when the legal requirements are met. In doing so, the judge must establish a legal basis for the enforcement so that it is clear on what basis the decision is being carried out. A judgment can apparently be enforced if there are no legal or factual obstacles. This certified copy gives the bailiff the formal authority to enforce the decision.
Normal Procedure: Suspensive Effect of Appeal
The main rule in Dutch law protects the convicted party through the suspensive effect of legal remedies. There are various cases in which a legal remedy can be sought, for example, on appeal or by lodging an objection. If an appeal is lodged against a judgment within three months, this judgment cannot, in principle, be enforced immediately. In the Dutch legal system, a judgment can only be enforced if no future legal remedy is available. If you did not appear in court, you must lodge an objection to a default judgment within the statutory period. In the case of a default judgment, an appeal must be lodged with the court within four weeks. When assessing a request for suspension of enforcement, the likelihood of success of the appeal must be disregarded.
This protection ensures that the person contesting the conviction has the opportunity to have the earlier decision reviewed by a higher court before irreversible enforcement measures are taken. Parties may use legal remedies to suspend the enforcement of the judgment. The legal remedy sought affects the enforceability of the judgment, as enforcement is usually suspended while the legal remedy is pending. Once the legal remedy has been decided, the situation may change and the judgment may or may not be enforced, depending on the outcome.
Exception: Enforceable provisionally
Building on the normal protection, this protection ceases to apply when the court declares the judgment provisionally enforceable. In principle, a judgment must be provisionally enforceable so that the parties are not left in uncertainty for an unnecessarily long period of time. This provisional enforceability means that the judgment can be enforced immediately, despite an appeal against the decision.
A judgment declared provisionally enforceable becomes effective after it has been served by the bailiff. A judgment must be enforceable when the court, after weighing up the interests involved, decides that immediate enforcement is justified. If the judgment has been declared provisionally enforceable, it can be enforced immediately. From that moment on, the winning party can proceed with enforcement immediately, unless specific legal remedies are successfully invoked.
Legal remedies against immediate enforcement
When a judgment that has been declared provisionally enforceable is about to be enforced, there are various legal routes available to achieve a suspension of enforcement. In that case, the parties can either demand enforcement or request a suspension of enforcement. These legal remedies require swift action and strategic considerations. When assessing a claim, the court takes into account the decision taken in previous proceedings. If the decision on provisional enforceability is substantiated, the claimant must present facts and circumstances that were not taken into account in the previous decision.
Incidental Claim in Appeal
An incidental claim within the main appeal proceedings offers the possibility of requesting a stay of enforcement from the court hearing the case. This procedure combines the substantive hearing of the case with the request to stay enforcement. If the court of first instance does not provide reasons, the court of appeal can still weigh up the interests involved.
The court assesses the claim on the basis of a weighing of interests between the interest of the executor in rapid enforcement and the interest of the convicted person in maintaining the existing situation as long as the judgment in question is not yet final ( ). The court must weigh the interests of the convicted person against those of the other party. In weighing up these interests, the interests of the convicted person must outweigh those of the parties who obtained the conviction in order to justify a suspension. In doing so, the court must respect the decisions in the judgment to be enforced and the underlying findings.
In weighing up these interests, the judge must respect the interests of both parties and assess whether the use of the power to suspend can be reasonably justified.
Interim relief proceedings before the preliminary relief judge
Unlike incidental claims, summary proceedings offer a faster, separate procedure in which a specific request for suspension of enforcement can be made. The preliminary relief judge can decide within a few days or weeks, whereas an appeal can take months. The criterion established by the Supreme Court for the suspension of enforceable judgments applies both to summary proceedings and to incidental appeals if a legal remedy has been or can still be instituted. In summary proceedings concerning the enforcement of a judgment that has become final, suspension is only possible if further enforcement constitutes an abuse of power. Suspension is also possible if the judgment is based on a factual error. Deviation from this principle is possible on the basis of a weighing of interests, whereby the circumstances of the case may outweigh the principle of provisional enforceability.
Unlike the court of appeal, the preliminary relief judge focuses exclusively on the urgency and the weighing of interests regarding enforcement, without reassessing the underlying legal issue. Cassation is an extraordinary legal remedy focused on legal issues, not on the facts, and goes to the Supreme Court.
Defence against a declaration of enforceability
An essential but often overlooked legal remedy is the direct challenge of the basis of the declaration of enforceability itself. The decision on enforceability was made because the judge weighed certain circumstances and interests in his assessment. The convicted party can defend itself against the declaration of enforceability, for example, if the judge in the first instance failed to adequately justify the provisional enforceability. This can be a successful line of attack. The judge must base his decision on the decisions in the judgment to be enforced and the findings on which they are based.
Key points:
- Speed is crucial – enforcement can begin within days of service
- Multiple proceedings can be conducted in parallel
- Costs and risks must be weighed against expected damage
Transition: The application of these legal remedies was fundamentally changed by the Strandhotel ruling of the Supreme Court in 2019.
Strandhotel ruling: New standards since 2019
The Strandhotel ruling of 20 December 2019 marked a turning point in case law concerning the suspension of enforcement. Whereas previously suspension was only possible in extreme cases of manifest error or abuse, a broader weighing of interests now applies. The foregoing applies to all cases in which suspension of enforcement is assessed.
The Supreme Court has established a uniform standard for the suspension of enforcement of a judgment declared provisionally enforceable. This new standard applies to various types of judgments, such as verdicts and rulings, and provides guidance in assessing requests for suspension in civil and criminal proceedings.
Step-by-step: Application of the new balancing of interests
When to use: For any judgment declared provisionally enforceable where enforcement is imminent during appeal proceedings.
- Assessment of Reasoned Declaration of Enforceability: Check whether the judge has sufficiently justified why immediate enforcement is justified.
- Balancing of Interests Between Parties: Weigh the interest of the enforcing party in rapid enforcement against the interest of the convicted party in postponement.
- Assessment of New Facts after Judgment: Investigate whether any facts have come to light since the judgment that clearly change the situation.
- Decision on suspension: Determine whether suspension or conditional enforcement (e.g. against security) is most appropriate
Comparison: Ritzen/Hoekstra standard vs Strandhotel judgment
| Characteristic | Ritzen/Hoekstra (pre-2019) | Strandhotel (post-2019) |
| Scope | Only extreme cases | All feasible matters in stock |
| Severity test | Very strict – only in cases of abuse | Flexible weighing of interests |
| Balancing of interests | Minimal – focus on error | Broad – both parties weighed |
This development has significantly increased the chances of successful suspension, giving judges more scope to assess the specific circumstances of each case.
Transition: Despite this expansion, practical challenges remain in the effective use of legal remedies.
Common Challenges and Solutions
Successfully stopping enforcement requires not only legal knowledge, but also practical skills and timely action in often stressful situations. Enforcement affects the interests of both parties, with the judge weighing up the interests before proceeding with enforcement. A judgment can only be enforced if certain conditions are met, such as a provisional enforcement order or the absence of suspensive legal remedies.
Challenge 1: Late response to threat of enforcement
Solution: Immediate urgent measures and protective proceedings before the preliminary relief judge.
As soon as a judgment declared provisionally enforceable is served, action must be taken within days. A bailiff can commence enforcement within 24 hours. In criminal cases, there is a 15-day period to lodge an objection after service.
Challenge 2: Unmotivated declaration of enforceability
Solution: Challenge the underlying findings that led to enforceability. In the event of an objection, a counterclaim, a reconventional claim, may also be filed.
If the decision is based on insufficient grounds for justifying a deviation from the principle of suspensive effect, this offers a strong legal line of attack. The right to a fair trial may influence the decision to enforce a judgment, especially in criminal cases.
Challenge 3: High legal costs and risks
Solution: Cost-benefit analysis in which the value of the existing situation is weighed against legal costs and the likelihood of success.
Respecting the interests of both parties also means making a realistic assessment of when the use of legal remedies is proportionate.
Transition: These practical considerations lead to concrete next steps for effective legal protection.
If your bank account or other assets are seized, it is very important that you know what your legal options are. Many people encounter problems because they do not know exactly what their rights are, and as a result, the seizure remains in place for too long. Here we explain the most important rights and strategies so that you are well prepared to contest the seizure.
Your rights if the seizure is unjustified
If your property has been seized, you have the right to challenge this if you believe something is wrong. Seizure may only be carried out on the basis of a valid title, such as a judgment that can be enforced immediately. If you believe the seizure is unjustified – for example, because the debt has already been paid or procedural errors have been made – you can contest it.
In addition, the bailiff must show you all documents, including the title on which the attachment is based. This gives you the opportunity to check whether everything has been done according to the rules. You are also entitled to a clear specification of the claim, so that you know exactly what the attachment is for.
Another important right is that you must always be left with a minimum amount for your living expenses. Whether it concerns your salary or bank account, the law stipulates that a certain amount must always remain available. If this does not happen, you can take immediate action, for example through summary proceedings if rapid intervention is necessary.
“The fastest way to oppose an unjustified attachment is to initiate an enforcement dispute.”
How to register your objection
The quickest way to oppose an unjust seizure is to initiate an enforcement dispute. You do this by issuing a summons against the person who seized the property. In this procedure, you ask the court to lift the seizure. If the situation is truly urgent, you can opt for summary proceedings, in which case you can expect a ruling within a few weeks.
If the seizure is based on a judgment against which you can still appeal, it is also possible to request a temporary suspension of enforcement during the appeal. This is a smart move, especially if you have serious doubts about the correctness of the judgment.
If the attachment has been imposed by a third party, you can use a specific dispute procedure to verify whether the third party’s claim is justified. This can be very important if you believe that the attachment is unjustified.
It is often useful to first discuss the matter with the party that imposed the attachment or their solicitor. A clearly worded letter explaining why you believe the attachment is unjustified can sometimes lead to a solution. It is wise to have such a letter drafted by an expert, so that you can present strong legal arguments. If this does not produce the desired result, you can always take further legal action without losing valuable time.
Conclusion and next steps
Since the Strandhotel ruling, legal remedies against the enforcement of judgments offer broader protection against unjustified enforcement during appeal proceedings. The aforementioned criterion of weighing up interests increases the chances for convicted persons to prevent irreversible damage, provided that they act in a timely and strategic manner. There are strict criteria for suspending the enforcement of a judgment declared provisionally enforceable, including a balancing of interests.
To begin with:
- Immediate assessment – Check within 24 hours of service whether enforcement may actually take place
- Strategic choice of procedure – Determine whether an incidental claim, summary proceedings or direct challenge is most effective
- Professional support – Engage specialised legal assistance for complex balancing of interests
Additional Resources
Relevant case law:
- Supreme Court 20 December 2019, ECLI:NL:HR:2019:2026 (Strandhotel judgment)
- Articles 233, 432-433, and 438 of the Code of Civil Procedure