Reinier advises national and international companies
reinier.russell@russell.nl +31 20 301 55 55When a debtor refuses to pay despite reminders and demand letters, stronger measures will be necessary to secure a claim. One of the most effective instruments in Dutch debt recovery is attachment. How can a creditor secure such an attachment?
Attachment (beslaglegging) is a legal measure that allows a creditor to secure a debtor’s assets in order to ensure recovery of a claim. It enables the creditor to freeze assets at an early stage, increasing the chances of actual payment.
Many debtors may still have sufficient assets when a claim arises, but they may try to move or hide them once legal proceedings start. Attachment prevents this. It also creates strong psychological pressure: the debtor cannot freely use the attached assets and is often motivated to settle to have them released.
Attachment can be levied on bank accounts, receivables, wages, shares, vehicles, inventory, or even real estate. However, there are strict rules, and a bailiff must always carry out the actual attachment. In practice, the effect of an attachment is often strongest when attachment is levied on assets that directly affect the debtor’s operations or liquidity, which can incentivise a prompt resolution.
In the Netherlands, two main types of attachment can be distinguished: prejudgment attachment and executory attachment.
The prejudgment attachment (conservatoir beslag) is the most used form during the recovery process. The creditor must request permission from the preliminary relief judge (voorzieningenrechter) before or at the start of ordinary court proceedings. The amount for which attachment is levied should be proportionate to the value of the claim, including interest and costs, and should not exceed it. The attachment will be lifted if proceedings on the merits are not initiated within the period set by the court. In such cases, the attachment automatically expires.
The requirements are relatively mild: the creditor must demonstrate that the claim is plausible and that there is a risk the debtor will channel away assets. The threshold is lower than for winning the actual case on the merits. In urgent situations, the judge can grant permission within days, sometimes even the same day.
Once authorised, the bailiff levies the attachment. From that moment, the debtor loses the right to dispose of the attached assets. The attachment remains in force during the main proceedings.
An important feature of prejudgment attachment is its element of surprise. The debtor is generally not informed of the request for attachment in advance. This is intentional: prior notice could allow assets to be moved or channeled away before the attachment is effected.
In most cases, the court decides on the request without hearing the debtor, and the attachment is executed without prior warning. There are, however, specific situations in which advance notice is required, for example in the case of certain types of income-related attachments.
In certain situations, maintaining an attachment may interfere with the debtor’s ability to continue normal business operations. In such cases, the attachment can be lifted if sufficient alternative security is provided for the claim, either by agreement between the parties or after a court decision.
In practice, this form of alternative security is often provided by means of a bank guarantee. Under such a guarantee, the bank undertakes to pay the creditor once the agreed conditions are met. The debtor will typically be required to provide counter-security to the bank in order to obtain the guarantee. A bank guarantee may, in many cases, offer a more straightforward route to recovery than enforcement against attached assets, depending on its terms.
After the attachment, proceedings on the merits must be initiated within a period determined by the court. In the meantime, the debtor may also request the court to lift or modify the attachment.
Once an enforceable title has been obtained, a prejudgment attachment effectively becomes executory in nature, an executory attachment (executoriaal beslag). This means the attachment no longer merely preserves assets but allows for actual enforcement against them. Before enforcement can proceed, the title must be formally served on the debtor (and any relevant third party).
In the case of executory attachment of goods, the bailiff can not only freeze assets but also proceed to their sale by public auction. The proceeds are used to satisfy the creditor’s claim, after deduction of costs and any higher-ranking creditors.
The enforcement of foreign judgments follows a different set of rules and will be addressed separately.
Attachment is a powerful tool. It should, however, be used strategically, not automatically in every case. For smaller claims the costs may outweigh the benefits, while for larger or high-risk claims it can make the difference between recovery and loss.
In cases involving unpaid invoices, it may be advisable to seek legal advice at an early stage. The experts of Russell Advocaten can assist you with assessing the best strategy for recovering your claim and guiding you through the collection process. Please contact us:
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