An attachment on goods in The Netherlands does not make Dutch courts competent

05 nov 2012

Azzurro, a Swiss investment company, claims in an interim injunction procedure, that Impossible BV, a Dutch company pays outstanding invoices for the amount of € 49.096,42.
The court proceedings were started in The Netherlands because the Swiss company had a pre-judgment attachment placed on bankaccounts in The Netherlands of the Dutch company. Because of that a court proceeding had to be started.

The Dutch company stated that the Dutch court was not competent to judge in this matter because of the agreement between the parties. Parties had agreed upon the exclusive competence of the Swiss courts.
The Swiss company referred to article 31 of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Swiss company stated that because of the attachment on goods in The Netherlands the Dutch court were competent.

The Dutch court had a different opinion. The court stated that the Dutch interim injunction procedure [kort geding] is a preliminary measure as mentioned in article 31 EEX regulation [ECJ 27 April 1999, NJ 2001, 90 Mietz/Intership Yachting Sneek].
The ECJ has set some rules for the application of article 31 EEX regulation: there has to be a direct link between the object of the requested measures and the competence of the court based on the territorial criteria [ECJ 17 November 1998, NJ 1999, 339 Van Uden/ Deco-Line].
According to this decision a debt collection interim injunction procedure [incasso kort geding] only meets these criteria when:

  • It is guaranteed that the awarded amount will be repaid to the defendant when the plaintiff has been denied the claim in the procedure on the merits.
  • The preliminary measures only involve certain goods that are within the territory of the other court.

The court decides that these criteria are not met because there is no guarantee offered.
Because of this the court in The Netherlands have no competence based on article 31 EEX Regulation.

The court decides that the claims have to be denied because the Dutch courts are not competent to judge in this case.
Court of Almelo, 18-10-2012, LJN: BY1528

Pre-judgment attachment [conservatoir beslag]
In The Netherlands it is often very effective to have a pre-judgment attachment [conservatoir beslag] placed on assets of the debtor.
Pre-judgment attachment is used to secure the payment of a claim. When the claim is rewarded by a judge the attachment is used to recover the claim.
All assets of the debtor are subject to [pre-judgment] attachment. In The Netherlands we have
several forms of pre-judgment attachment:

  • for the collection of receivables [verhaalsbeslag];
  • to attach specific goods for the purpose of surrender [beslag tot afgifte];
  • to attach specific goods for the delivery of goods [beslag tot levering];
  • to seize goods that are held by someone else than the debtor, e.g. a bank, [derdenbeslag];
  • to seize the goods held by somebody else than your direct debtor [derdenbeslag];
  • to seize goods [including electronic data] in order to preserve evidence proving the breach of intellectual property rights [bewijsbeslag].

A Dutch lawyer can ask a court to give permission to have an attachment placed on goods.

For more information: Jos van der Wijst