Prejudgment attachment in the Netherlands: how it works and the risks

A prejudgment attachment (conservatoir beslag) freezes a debtor’s assets before judgment, so that a claim does not become worthless while proceedings run their course. It is one of the most effective instruments in Dutch civil practice, and one of the most distinctive: leave is granted without the debtor being heard, and the attachment is levied before the debtor knows an application has been made.

The main exception to its effectiveness is risk: if your claim fails later, you are liable for the damage the attachment caused. The rules are in Book 3, Title 4 of the Dutch Code of Civil Procedure (Rv), starting at Article 700 Rv.

How do you obtain leave for an attachment?

Under Article 700 Rv, a lawyer applies to the provisional relief judge (voorzieningenrechter) of the district court, setting out the claim, its grounds and the reason for the attachment. The application is dealt with on the papers, usually within a day or a few days, and the debtor is not heard.

Because the debtor cannot respond, the applicant carries a heavy duty of candour: all facts relevant to the decision must be disclosed, including those that count against the application, such as a defence the applicant knows the debtor will raise, or an earlier attachment that failed. Suppressing such facts is a ground for lifting the attachment, and can affect liability afterwards.

Leave is granted subject to a condition: the substantive claim must be brought within a period set by the court in the order (Article 700(3) Rv), in principle fourteen days after the attachment. If it is not, the attachment lapses.

What assets can be attached?

Almost anything of value: bank balances, immovable property, shares, vehicles, stock and equipment, and receivables owed to the debtor by third parties. The last of these – attachment in the hands of a third party (derdenbeslag, Articles 718-723 Rv) – is often the most effective in practice, because it can be levied on the debtor’s bank and on its own customers at the same time.

Attachment does not give the creditor possession or payment. It immobilises the asset: it may not be sold, transferred or paid away. Recovery follows only after a judgment has been obtained, at which point the prejudgment attachment converts into an executory one.

Certain assets are protected from attachment. Where a debtor is a natural person, the bailiff must respect the protected minimum of income (beslagvrije voet) set in the Code of Civil Procedure.

What is the risk for the applicant?

If the claim is ultimately dismissed, the attachment is treated as wrongful, and the applicant is in principle liable for the damage it caused – irrespective of whether the application was made carefully or in good faith. For a business whose bank accounts were frozen for months, that damage can substantially exceed the claim itself.

This is the part that is regularly underestimated, and the court can make leave conditional on the applicant providing security for that damage. An attachment is not a routine pressure tactic. It is an instrument for cases where the claim is strong and there is a genuine risk of assets disappearing.

How can a debtor have the attachment lifted?

A debtor can apply in summary proceedings (kort geding) to have the attachment lifted, and the court will do so where the claim is shown to be without merit, where the attachment is unnecessary or disproportionate, or where sufficient alternative security is offered.

Offering a bank guarantee is frequently the fastest route, often agreed with the creditor without a court hearing, because it removes the risk the attachment was designed to address and restores the debtor’s freedom of movement immediately.

What should you check as a creditor?

An attachment is only worth it if the claim is strong and assets may disappear.

• Is your claim solid in fact and in law, and can you prove it with documents?
• Have you disclosed every fact that counts against your application, including the debtor’s likely defence?
• Which assets does the debtor have: bank accounts, property, receivables from customers?
• Can you start the main proceedings within fourteen days after the attachment?
• Can you carry the damage if the claim is dismissed later?

What should you check as a debtor?

Act quickly: every day of a frozen bank account costs money.

• Has the creditor started the main proceedings within the term in the leave order?
• Did the application leave out facts the judge should have known?
• Is the attachment disproportionate to the claim?
• Can you offer a bank guarantee or other security to have it lifted?
• Have you recorded the damage the attachment causes, for a later claim?

What can we do for you with a prejudgment attachment?

Our corporate lawyers act for creditors and debtors, and speed matters on both sides.

• We assess whether an attachment is worth the risk of liability.
• We draft and file the application for leave,.
• We instruct the bailiff to levy the attachment on bank accounts and third parties.
• We start the main proceedings within the term set in the leave order.
• We act for debtors in summary proceedings to lift the attachment, or negotiate a bank guarantee instead.

Summary

• A prejudgment attachment freezes assets before judgment, without the debtor being heard in advance (Article 700 Rv).
• Leave is granted subject to a deadline for starting the main proceedings, in principle fourteen days; if it is missed, the attachment lapses.
• Bank balances, property, shares, vehicles and receivables from third parties can all be attached.
• A wrongful attachment can make the applicant liable for the debtor’s damage, so the underlying claim must be solid before applying.
• A debtor can seek to have the attachment lifted, often fastest by offering a bank guarantee.

Frequently asked questions