Changes to Requirements for Attachment in Attachment Syllabus 2011
Last summer, in June 2011, the conditions set on applications for attachment have been tightened in favor of debtors. This tightening has helped to bring the Netherlands back in line with the international community. The conditions for a prejudgment attachment may be consulted online in the attachment syllabus (see www.rechtspraak.nl). In brief, the changes imply that both the claim of the creditor and the defense of the debtor require an even better substantiation, if necessary with exhibits. The creditor must state the reasons why the attachment is necessary, and why he chose to attach the goods mentioned in the application for attachment rather than a less onerous object of attachment (e.g. the attachment of an immovable property rather than a prejudgment garnishment against an account holder of a bank). Furthermore, the term of attachment is fixed at 14 days, and the option of extending this term of attachment is made harder.
Clear Turning Point in Practice
Legal practice of the past six months has shown that the judiciary gives applications for attachment a critical eye, and does not hesitate to reject such applications and/or requests for extension, especially if they are not well-substantiated.
The Court of Appeal of Amsterdam has recently continued this line in its judgment of 10 January 2012 (LJN: BV0477). The Court of Appeal ruled that the requirement of 'a reasonable fear of embezzlement', which is set on certain types of attachments (like attachments of shares or of immovable property), is not a formality, but must really be properly proven. The mere circumstance of a claim that remains outstanding does not suffice here.
First published in the Kennedy Van der Laan newsletter - March 2012
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