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Last update: 12-03-2007
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Enforcement of judgements - Netherlands

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TABLE OF CONTENTS

1. What does enforcement mean in civil and commercial cases? 1.
2. What are the conditions under which an enforceable title or decision may be issued? 2.
2.1. The procedure 2.1.
2.2. The substantive conditions 2.2.
3. Object and nature of enforcement measures 3.
3.1. What types of assets can be subject to enforcement? 3.1.
3.2. What are the effects of enforcement measures? 3.2.
3.3. What is the validity of such measures? 3.3.
4. Is there a possibility of appeal against the decision granting such a measure? 4.

 

1. What does enforcement mean in civil and commercial cases?

Enforcement law: general

The judge’s ruling marks the conclusion of proceedings. The ruling may involve ordering the debtor to make a performance to the creditor (such as payment of a sum in compensation). If the debtor does not voluntarily perform, the creditor may avail himself of enforcement law to enforce fulfilment of the performance. Enforcement law regulates the enforcement (execution) of a judicial decision in which the debtor is ordered to perform. To this end, enforcement law lays down statutory rules on coercive measures and how those measures can be applied. Bailiffs are authorised to levy enforcement (execution), and are instructed to do so by the creditor seeking the realisation of his rights. Two conditions must be satisfied in order to use the coercive measures provided for by enforcement law: one must be in possession of a writ of execution (e.g. an enforceable judgment) and this writ must first have been notified to the party upon whom enforcement will be levied.

Coercive measures

The main coercive measure is executory seizure under a writ of attachment, which is discussed at greater length below in this information leaflet.

Other coercive measures are the penalty, and civil imprisonment (for failure to comply with a judicial order).

A penalty is a pecuniary sum, set by judicial ruling, which the convicted person will be required to pay if he does not honour the principal obligation. The penalty is used primarily in interlocutory proceedings as a means of exerting pressure. A penalty may only be linked to a principal obligation that entails something other than payment of a sum of money, such as an order to issue certain documents or an injunction against using a certain trademark.

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Committal for failure to comply with a judicial order is a means of exerting pressure to force a party to honour a certain commitment. Committal for failure to comply with a judicial order is not often imposed by the court, and even then is rarely actually enforced. Committal for failure to comply with a judicial order is only possible if ordered by the court.

The key people involved in execution are the executor (the person requesting enforcement, the creditor), the person against whom execution is being levied (the debtor against whom execution is levied) and the bailiff (the public official instructed to actually levy enforcement at the executor’s request).

2. What are the conditions under which an enforceable title or decision may be issued?

2.1. The procedure

Rulings by the Dutch courts (judgment, decision, ruling), authentic deeds (notarial deeds) and some other documents constitute writs of execution. The other documents that the law designates as writs of execution include: writs of execution from the Public Prosecutions Service, final demand and notice issued by the tax department, arbitral awards with permission for enforcement, and the record of an amicable settlement.

A “bailiff’s copy” of a judicial ruling is issued to the parties free of charge. This is a certified copy of the ruling, at the top of which are the words “In naam der Koningin” (In the name of the Queen). The bailiff’s copy can be identified from this, so it is a judicial ruling issued in executory form. Enforcement can only take place with the bailiff’s copy.

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A bailiff’s copy, or first authenticated copy, can also be issued of a notarial deed.

Handing over a bailiff’s copy authorises the bailiff to proceed with enforcement. The creditor can issue the bailiff’s copy to the bailiff himself; he does not need to call upon the services of a lawyer to do this.

Prior to enforcement, the bailiff will serve the document on the person against whom enforcement is being levied. The purpose of service of the document is to bring the judgment to the opposite party’s notice and inform him that the creditor is demanding compliance with the ruling.

For more on the service of documents, see the Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. See Service of documents - Community law 

Bailiffs
Role in enforcement

The bailiff is the key figure in enforcement, and always acts on the instructions and behalf of the person requesting enforcement. These instructions are given by handing over the bailiff’s copy. Generally speaking, the bailiff does not require separate authorisation.

The acts that the bailiff may perform in connection with enforcement include:

  • service of the writ of execution on the person against whom enforcement is being levied;
  • warning to fulfil the performance, e.g. warning to pay a sum of money;
  • taking receipt of payment if the debtor does effect payment;
  • attachment.

If necessary, the bailiff may procure the assistance of the police (e.g. in the event of attachment).

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Bailiffs’ fees

Official acts by bailiffs are subject to fixed fees which may be charged to the debtor. No fixed fees apply to the creditor, so these must be negotiated with the bailiff. The fees that the bailiff charges to the debtor can be found in the Decree of 4 July 2001 containing detailed rules on official acts by and the fees of bailiffs (Bailiff Fees Decree Nederlands PDF File (PDF File 61 KB)). This version stipulates the fees as of 1 January 2005.

2.2. The substantive conditions

The two general conditions for enforcement are:

  • possession of a writ of execution and
  • the service of that writ on the person against whom enforcement is being levied, prior to enforcement.

See question 1.

Coercive measures

As mentioned above, the main coercive measure is executory seizure under a writ of attachment. There are also measures that can be taken pending the obtaining of a writ of execution. These measures can be requested before the ruling is pronounced, during or even prior to the proceedings, and are known as protective measures, i.e. measures to protect rights. Protective measures include prejudgment attachment, placing of seals, and drawing up an inventory. This information leaflet describes executory attachment.

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3. Object and nature of enforcement measures

3.1. What types of assets can be subject to enforcement?

Executory attachment can be levied on:

  • movable property that is not registered property
  • bearer rights or rights to order, to registered shares or other registered securities;
  • under a third party (by garnishee order)
  • on immovable property
  • on ships
  • on aircraft.

As a general rule, the executor is at liberty to choose the assets upon which he wishes to levy attachment.

In principle, attachment may be levied on all of the debtor’s property. There are assets that may not be attached, such as property required for primary necessities of life, such as clothing, food, workmen’s tools, specialist literature and property for the purposes of education, art and science. A portion of periodic wage, maintenance or benefit payments is not eligible for attachment.

Attachment may not be levied on assets intended for public services. The executor may levy attachment on various assets at the same time, e.g. on both movable and immovable property.

3.2. What are the effects of enforcement measures?
Legal consequences of attachment of movable property that is not registered property

Attachment means that acts by the debtor performed after attachment cannot be prejudicial to the rights of the person levying attachment. If, for instance, the debtor were to sell the business, the purchaser cannot, in principle, assert to the creditor that he has become the owner. Another consequence is that the income provided by the business is also covered by the attachment.

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Legal consequences of attachment of shares, securities and other assets

There are no specific legal consequences.

For the duration of the attachment, the voting right remains with the person against whom attachment is levied.

Legal consequences of attachment by garnishment

In the case of attachment by garnishment, the creditor (the person levying attachment) levies attachment on a third party (i.e. not the debtor), because that third party has a debt to the debtor or holds property of the debtor. In other words, property of the debtor that is in the hands of a third party is attached. The person levying attachment is protected against juristic acts by his opposite party. Juristic acts performed after the attachment cannot be relied upon against the person levying attachment.

Two common forms of attachment by garnishment are attachment at a bank, on a bank or giro account, and at an employer, on an employee’s wage.

Legal consequences of attachment on movable property

The attachment is recorded in the public registers, and is effective from the moment of registration. Revenues from the immovable property acquired after attachment are subject to the attachment. The person levying attachment is protected against juristic acts by debtor after the attachment. The disposal (sale) of the immovable property cannot be relied upon against the person levying attachment.

3.3. What is the validity of such measures?

The basic rule is that the authority to enforce a judicial ruling becomes prescribed twenty years from the day following that of the ruling. If the enforcement of a judicial ruling is subject to certain requirements, the fulfilment of which is not contingent upon the will of the person who obtained the ruling, then the authority to enforce a judicial ruling becomes prescribed twenty years from the start of the day following that on which the requirements were satisfied.

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However, the term of prescription is five years for everything that has to be paid pursuant to the ruling within a year or less. When interest, fines, penalties and other additional orders are involved, the prescription takes effect no later than at the time of prescription of the authority to enforce the main judgment, unless interrupted or extended.

4. Is there a possibility of appeal against the decision granting such a measure?

Enforcement disputes

Article 438 of the Code of Civil Procedure contains a general rule for disputes relating to enforcement, which are known as enforcement disputes. In an enforcement dispute the debtor may attempt to prevent the enforcement. The dispute may, for example, be about the significance and scope of the writ of execution, the influence of facts occurring after the ruling (the writ of execution), the validity of an attachment, or the question of who is the owner of the attached assets. In an enforcement dispute, the debtor may, for instance, argue that the executor is abusing the law or that attachment is disproportionate to the ruling. The debtor (the person against whom execution is levied) may not make any further substantive objections to the ruling at this stage: to do this, he must institute opposition, appeal or cassation proceedings, which are legal remedies. Thus an enforcement dispute relates solely to the matter of enforcement. The main action in which a ruling has already been delivered is not re-appraised.

Enforcement disputes are usually handled in interlocutory proceedings. The court may, for instance, suspend execution for a certain period or lift the attachment.

Competent court

The court in first instance (de arrondissementsrechtbank) has jurisdiction for all enforcement disputes, regardless of which judge pronounced the ruling to be enforced. The court is competent even if the court of appeal or Supreme Court delivered the ruling.

Territorial jurisdiction. The court with territorial jurisdiction is either the court that is assigned competence by the general rules of law on jurisdiction, or the court in the territorial jurisdiction within which the attachment has been or will be levied, or the court in the territorial jurisdiction within which the property concerned is located, or the court in the territorial jurisdiction within which the enforcement will take place. A competent Dutch court must be found for all enforcement actions taking place in the Netherlands.

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Last update: 12-03-2007

 
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