A prejudgment attachment freezes assets of a debtor before there is a judgment, so that recovery is still possible once the claim is awarded. It is a powerful instrument and, in the Netherlands, a comparatively accessible one.
Legal basis and procedure
Article 700 of the Dutch Code of Civil Procedure requires leave from the provisional relief judge. The application is made by a lawyer and sets out the claim, its basis and the assets to be attached. The debtor is not heard beforehand except in specific categories, which is what makes the measure effective: the assets are frozen before the debtor knows of it.
The review is summary. The judge assesses whether the claim is sufficiently plausible and grants leave in most cases, usually for the amount of the claim increased by a percentage for interest and costs. Leave is conditional: proceedings on the merits must be started within a period set in the order, typically fourteen days, failing which the attachment lapses.
What can be attached
Bank accounts, receivables from third parties such as customers, immovable property, shares, vehicles and stock. An attachment on a bank account catches only the balance at the moment of service, which is why timing matters. An attachment on immovable property is registered in the public register and effectively blocks a sale.
Lifting it and the risk of liability
The debtor can apply under Article 705 to have the attachment lifted, in preliminary relief proceedings, on the ground that the claim is summarily shown to be unfounded or that the attachment is unnecessary. A creditor whose claim is ultimately rejected is in principle strictly liable for the damage the attachment caused, which can be substantial where a business was disrupted.
Where it goes wrong
The deadline for starting proceedings on the merits is missed surprisingly often, and the attachment then falls away without any decision. The other risk is over-attaching: freezing far more than the claim justifies invites both a successful application to lift and a later claim in damages.
Related terms
See also preliminary relief proceedings, penalty payment and limitation period.
Our civil law team obtains and contests attachments, including on short notice.
