Suspending enforcement of a judgment: your remedies under Dutch law

You can stop or postpone enforcement of a Dutch judgment by asking the court to suspend it: in an incidental claim in your appeal (Article 351 of the Dutch Code of Civil Procedure, Rv) or in summary proceedings before the preliminary relief judge (Article 438 Rv). Since the Supreme Court’s ruling of 20 December 2019 (ECLI:NL:HR:2019:2026), the court weighs both parties’ interests, but if the first judge already gave reasons for immediate enforcement, you must rely on new facts or a manifest error.

For a judgment that has become final, the bar is much higher: suspension is only possible if further enforcement would be an abuse of rights under Article 3:13 of the Dutch Civil Code (BW).

When can a judgment be enforced?

A judgment can be enforced once the winning party has an enforceable copy (grosse) headed “In naam van de Koning” (Article 430 Rv) and has had it served on you by a bailiff (gerechtsdeurwaarder). Before the bailiff seizes movable goods, you receive an order to pay within two days (Article 439 Rv).

The main rule is that an appeal suspends enforcement. The appeal period is three months from the date of the judgment (Article 339(1) Rv) and four weeks for a judgment in summary proceedings (Article 339(2) Rv). Against a default judgment, you can lodge an objection (verzet) within four weeks of service (Article 143 Rv).

What does “provisionally enforceable” mean?

Under Article 233 Rv, the court can declare its judgment provisionally enforceable (uitvoerbaar bij voorraad) if the claimant asks for it. The judgment can then be enforced immediately, even if you appeal. In practice, courts grant this in most civil cases, and the Supreme Court has confirmed that the starting point is enforceability without security.

How can you ask for suspension during an appeal?

You can file an incidental claim with the court of appeal under Article 351 Rv once your appeal has been lodged. The court of appeal can suspend enforcement until it decides the appeal, not beyond that.

Under Article 235 Rv, if the judgment was declared provisionally enforceable without security, you can also ask the court of appeal by incidental claim to make enforcement conditional on the creditor providing security. This is often the more realistic request if the creditor may not be able to repay if you win the appeal.

Which test does the court apply?

The Supreme Court laid down the test in its ruling of 20 December 2019 (ECLI:NL:HR:2019:2026), often called the Strandhotel ruling. The court weighs the interest of the creditor in immediate enforcement against your interest in keeping the situation unchanged until the appeal is decided.

• You must have an interest in the suspension.
• The chances of success of your appeal are, in principle, not taken into account.
• If the first judge gave reasons for the provisional enforceability, you must rely on facts or circumstances that arose after that decision, unless the decision rests on a manifest error (kennelijke misslag).
• If the first judge gave no reasons, you do not need new facts and the court weighs the interests afresh.

Can you go to the preliminary relief judge instead?

Yes. Under Article 438(2) Rv, disputes about enforcement can be brought in summary proceedings (kort geding) before the preliminary relief judge (voorzieningenrechter) of the competent district court, or before the subdistrict court (kantonrechter) in cases it handles. This route is faster and is also available before you have lodged an appeal.

Under Article 438(3) Rv, the judge can suspend enforcement for a set time or until the dispute is decided, allow enforcement only against security, or lift attachments. Since 2019, the judge applies the same test as the court of appeal when an appeal, objection or cassation has been or can still be lodged.

What if the judgment is already final?

Then the older Ritzen/Hoekstra test still applies. Enforcement can only be stopped if continuing would be an abuse of rights under Article 3:13 BW, for example because the judgment rests on a clear factual error or because facts that arose after the judgment create an emergency for you. These examples are not exhaustive, but the bar is high.

What can you do against an attachment?

An attachment (beslag) for enforcement must be based on an enforceable title, and the bailiff’s writ must state the claim. If you think the attachment is wrong, for example because the debt has been paid or the wrong assets were seized, you can start an enforcement dispute (executiegeschil) under Article 438 Rv.

Part of your income is always protected. When income such as salary or benefits is attached, the bailiff must leave you the protected amount (beslagvrije voet), which is calculated under Article 475d Rv on the basis of your income in the payroll records (polisadministratie). If the bailiff does not respect it, raise this with the bailiff first and, if needed, ask the preliminary relief judge to intervene.

Before starting proceedings, a reasoned letter to the creditor or the bailiff often helps, for example with proof of payment. If that does not work within a few days, summary proceedings are the fastest route.

What should you check as the party facing enforcement?

• Check whether the judgment was declared provisionally enforceable and whether reasons were given for that.
• Note the deadlines: three months for appeal, four weeks for a summary judgment or an objection against a default judgment.
• Check that the bailiff served the enforceable copy and the two-day order before seizing movable goods.
• List the facts that have arisen since the judgment and that change the balance of interests.
• Check whether the creditor could repay you if you win the appeal; if not, ask for security.
• Check that the protected amount (beslagvrije voet) was respected.

What should you check as the creditor?

• Ask the court for a provisionally enforceable judgment and explain why immediate enforcement is justified.
• Have the judgment served and keep track of the appeal period.
• If the judgment was not declared provisionally enforceable and an appeal is lodged, consider an incidental claim under Article 234 Rv.
• Prepare for a suspension request by documenting your interest in immediate payment.
• Consider offering security to avoid suspension.

What can we do for you with enforcement of a judgment?

Our litigation and corporate lawyers act for both debtors and creditors in enforcement disputes.

• We check the judgment, the service and the bailiff’s documents for errors.
• We calculate the appeal and objection deadlines and file the appeal in time.
• We draft the incidental claim under Article 351 Rv or the summons for summary proceedings under Article 438 Rv.
• We negotiate with the creditor or bailiff about security, a payment plan or lifting an attachment.
• For creditors, we arrange service and enforcement through the bailiff and respond to a suspension claim.

Summary

• An appeal suspends enforcement unless the judgment was declared provisionally enforceable (Article 233 Rv).
• You can ask for suspension through an incidental claim in appeal (Article 351 Rv) or in summary proceedings (Article 438 Rv).
• Since ECLI:NL:HR:2019:2026, the court weighs interests; if the first judge gave reasons, you need new facts or a manifest error.
• For a final judgment, suspension is only possible in case of abuse of rights (Article 3:13 BW).
• Act quickly: seizure of movable goods can follow two days after the order to pay.

Frequently asked questions