Table of Contents
At MAAK Advocaten, we understand the intricacies and complexities of garnishment. We provide expert legal guidance and representation in navigating the strict deadlines and formalities associated with the process. Our team of experienced Dutch lawyers is dedicated to ensuring that your interests are protected throughout the garnishment procedure in the Netherlands.
Understanding of Garnishment and Execution in the Netherlands
Litigation encompasses not only the rules governing legal proceedings, but also those pertaining to the enforcement of court judgments. Without proper execution, a judgment remains merely a piece of paper. In civil cases, only a bailiff (gerechtsdeurwaarder) is authorized to carry out forced execution. The bailiff requires a copy of the judgment known as the “grosse” to proceed with the garnishment. The “grosse” bears the inscription “In naam van de koning” (In the name of the king) at the top and “uitgegeven voor grosse” (issued as a copy) at the bottom, along with the clerk’s signature. Only then can the bailiff initiate the actual process of the arrest of assets in the Netherlands. It is crucial to adhere to strict deadlines and formalities as any non-compliance renders the garnishment null and void.
Types of Garnishment in the Netherlands
Conservatory Attachment or pre-judgment attachment
When there is a risk that the opposing party may dispose of assets before a court judgment is obtained, you can request a conservatory attachment. This requires permission from the preliminary relief judge (voorzieningenrechter) of the court. Only a lawyer can make such a request. After the garnishment, you must initiate legal proceedings within 14 days to pursue the claim for which the attachment was sought. While conservatory attachment prevents the opposing party from disposing of the attached property, you do not immediately gain possession. The attachment transforms into an execution attachment, only when the court grants your claim. However, if you lose the case, you become liable for any damages resulting from the garnishment, which can be substantial. Although the opposing party can attempt to lift the attachment through summary proceedings, it is highly unlikely to succeed. In such situations, providing a bank guarantee offers a better alternative, especially if the opposing party faces insolvency.
Garnishment and the Fear of Dissipation
Certain garnishments in the Netherlands require a “gegronde vrees voor verduistering” (well-founded fear of dissipation). This refers to specific indications that the owner intends to dispose of the assets in question.
Garnishment is classified as executorial when you possess a court judgment granting your claim. It commonly involves the payment of a sum of money but can also pertain to the delivery of an item or the transfer of goods. Executorial seizure can also be based on an enforcement order from a government authority or a notarial deed with an acknowledgement of debt.
Attachment for Recovery under Dutch law
Attachment under Dutch law for recovery is used to obtain funds. The attached assets are first publicly auctioned, with the bailiff handling the process, except for immovable property and registered vessels, which must be auctioned by a notary. From the proceeds, all costs are deducted, and the net amount is disbursed to the claiment (the party seeking attachment) up to the amount they are entitled to claim. The remaining funds are returned to the owner.
Third-Party Attachment in the Netherlands
Third-party attachment in the Netherlands against f.e. a third party, such as a bank, employer, or benefit provider, is quite common. When attaching a periodic payment, such as wages or benefits, a “exempt amount” (beslagvrije voet) applies. This exempt amount is equal to 90% of the applicable social assistance standard, sometimes with an additional allowance. The attachment remains in effect until all costs and the claim have been fully satisfied.
Attachment for Delivery or Surrender in the Netherlands
If the garnishment involves the surrender of movable property, the bailiff seizes and hands over the assets to the party levying the attachment. An attachment for the delivery of other goods can only be conservatory in nature. The delivery must be enforced through other means, such as a court order that substitutes for the party’s cooperation in the transaction. This is known as “reële executie” (real enforcement).
Marital Attachment under Dutch law
Spouses and registered partners can seek pre-judgment attachment on all communal property during divorce proceedings to ensure that the assets are not dissipated before the division takes place. The attachment on an asset automatically expires once it is distributed.
Garnishment against a foreigner allows the Dutch court to have jurisdiction in a case against that individual unless otherwise stipulated by a European regulation or treaty.
Evidence Attachment in the Netherlands
In certain cases, a garnishment in the Netherlands can be placed on the evidence held by the opposing party. This evidence can include computer files, documents, samples, photographs, or other items. The court must determine whether the party levying the attachment is entitled to this evidence. If so, the bailiff can provide the evidence to the party levying the attachment; otherwise, it must be returned to the party from whom it was seized.
Objects Subject to garnishment in the Netherlands
Dutch law governs the attachment concerning the following objects:
- movable property that is not immovable property
- immovable property
- registered vessels and aircraft
- claims and assets held by third parties such as banks, wages, and benefits
- shares, securities, and bearer or order rights
- insurance benefits
Contact our Dutch Litigation law firm
When it comes to seizure, you need a trusted legal partner who can guide you through the process with precision and expertise. At MAAK Advocaten, we are committed to providing top-notch legal services tailored to your specific situation. Our team of highly skilled professionals is easily accessible and always ready to assist you in resolving any seizure-related matters. Do you have questions about a garnishment in the Netherlands, in your particular circumstances? At MAAK Advocaten, we are here to help. Reach out to us today and benefit from our extensive knowledge and experience in this field.