Cross-border pre-judgment attachments: Dutch leave to attach enforceable in other EU member states

The Netherlands is known for its liberal approach to various things in life including pre-judgment attachments. Dutch law provides for very quick, ex-parte petition proceedings for obtaining leave to levy a conservatory attachment on the assets of a counterparty. The obvious advantage is that a claimant may be able to secure its claims based on a prima facie assessment thereof and in anticipation of the main proceedings. For claimants operating in the Dutch jurisdiction the pre-judgment attachment application is an effective and trusted legal tool.

The Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (applicable from 10 January 2015) may give Dutch pre-judgment attachments a broader reach, extending the enforceability thereof to other EU member states.

Pivotal to this exporting of Dutch measures is the revised definition of “judgment” in article 2 of the Regulation, which now explicitly includes provisional and protective measures ordered by a court which by virtue of the Regulation has jurisdiction on the substance of the matter. Dutch leave to levy a pre-judgment attachment is in-scope of this definition, thus qualifying as a “judgment” which is eligible under the Regulation for recognition and enforcement in other EU member states if – at least – the Dutch courts have jurisdiction in the main action (and are not relying on residual jurisdiction under article 35 of the Regulation for the issuance of provisional measures). This interpretation is corroborated in the guidance notes for pre-judgment attachment applications issued by the Dutch courts (November 2020 edition).

The prerequisite of merits jurisdiction implies that the cross-border use of Dutch pre-judgment attachments in the above sense is unavailable in case of a valid arbitration agreement. Whilst the Dutch courts in principle have jurisdiction under Dutch law to order protective measures in support of the arbitration, this qualifies as residual jurisdiction for purposes of the Regulation (article 35) – the arbitral tribunal has or will have exclusive jurisdiction in the main action.

An additional requirement for cross-border use of Dutch pre-judgment attachments is that the decision containing the leave (annexed to a standard form setting out the particulars of the decision) is served on the respondent prior to enforcement in another EU member state. The respondent is thus notified of the outcome of the ex parte petition proceedings before the Dutch courts and of the impending enforcement. This will likely diminish the desired surprise effect of the pre-judgment attachment
– something which remains helpfully available to claimants seeking to secure potentially fleeting assets in the Dutch jurisdiction. In our experience, meticulous preparation of the various process-steps in the EU member state where enforcement is sought may help to execute service and enforcement of the pre-judgment attachment still in relatively short sequence.

An application for a Dutch pre-judgment attachment is thus an option which claimants may consider even if the assets are located in another EU member state.

For Dutch readers: here is a Legaltree podcast about cross-border pre-judgment attachments by Sander Oorthuys, Ard van der Steur and Wouter de Clerck.