12.2 Summary

The Dutch provisions on prejudgment attachment are special in the sense that they have a liberal character. This means that – compared to similar provisions in other countries – obtaining leave to impose attachment for a claim that has not yet been established by law is relatively simple. Prejudgment attachment is characterized by an inherent conflict of interests of the attaching party (who wants to secure his claim, pending a decision by the court) and the attachee (in being able to dispose of his assets without hindrance and in being protected from unlawful attachment). Prejudgment attachment can have far-reaching consequences for the attachee. The subject of this study is the balance of the Dutch system of prejudgment attachment and that of the proposal for European bank attachment.

Both the Dutch system of prejudgment attachment and the proposed Regulation on a European system for the attachment of bank accounts (EAPO = European Account Preservation Order) can be represented as a diagram in three pillars which comprise the granting of leave, interim relief proceedings to lift attachment, (in which the attachee can request lifting or change of the attachment) and liability of the attaching party for unlawfully imposed attachment (damages). The three pillars represent guarantees provided by the legislature.

Mutual compensation between the pillars is possible, which means that a strong function in one or more pillars can compensate a weak(er) function or guarantee in one or more other pillars. The prejudgment attachment system can be considered balanced if there are sufficient guarantees for both the attaching party and the attachee (see the model on the next page).

Research into the Dutch system commissioned by the Council for the Judiciary (Raad voor de rechtspraak) has shown that there is an unbalanced situation (Meijsen & Jongbloed 2010a, Research Memorandum). This imbalance occurs particularly in circumstances in which the attachee has a reasonable defence against the claim for which attachment is imposed. In the past decades, the possibilities of attachment for an as yet alleged claim have been substantially increased.

On the other hand, looking after the guarantees for the attachee seems to have slipped into the background. The simple way in which leave can be obtained, the limited reliance on interim relief proceedings to lift attachment and the circumstance that in case of unlawful attachment, it is difficult in practice for the liability of the attaching party to result in damages, see to it that the pillars individually and with that the system as a whole (there is no question of mutual compensation) must be considered inadequately balanced.

As a result of the above-mentioned research, in 2011 amendments were made to the court regulations (De Beslagsyllabus) that regulate the granting of leave in the Netherlands in more detail. These regulations were adopted within the Judiciary, for that matter without legal authority to that effect. The binding nature of such rules is therefore less strong than those, for example of statutory provisions: the judges always have the authority to depart from such rules if there are reasons to do so based on the content of a specific request. The amendments to the Beslagsyllabus give effect to a Full Disclosure principle, on the basis of which the attaching party must include all information in the request that is relevant to the decision to be taken by the interim relief judge on the granting of leave, also including the attachee's defence, as well as the request to provide evidence. In this way the judge will have information available with which he/she will be able to assess a request to impose attachment in more depth.

The amendments to the rules for granting leave in the Netherlands should be considered an initial impetus towards a more balanced system. Because as a rule the intended attachee has no knowledge of an intended attachment (otherwise assets could be withdrawn from the attachment) the latter is usually not examined in the procedure for granting leave. Consequently, even after the amendments made, the course of affairs in the first pillar is and remains – necessarily – inherently onesided.

Consequently, there is also reason to review the interim relief proceedings to lift attachment and liability of the attaching party for unlawful attachment for possibilities for improvement with respect to balance.

The way in which the interim relief proceedings to lift attachment are given shape in legal practice is strongly influenced by the case law of the Netherlands Supreme Court (Hoge Raad) which, in my view, wrongly places the accent disproportionately heavily on the interest of the attaching party with a burden of plausibility for the attachee and primacy for the alleged claim on which the attachment is based. Reliance on this guarantee is therefore limited. I argue for awareness on this point and a different approach arising there from in legal practice, in which more attention is devoted to an attachee with a reasonable defence.

The liability of the attaching party for unlawful attachment is based on the concept of the wrongful act. Actions for damages should be based on the general rules of law relating to loss. In practice this proves to result in difficult proceedings and limited reliance on this guarantee. I am thinking of provisions on liability and damages specifically for (partly) unlawful attachments as an improvement.

A tendency can be observed at the European Commission towards the Europeanisation of attachment law. Recent proposals are intended to render the territoriality principle inoperative. The Member States appear to be unwilling to do so for the time being. The circumstance that national rules and European rules are included in the proposal for a European bank attachment entails the risk of collision. The proposed Regulation is characterised by an extremely strong and one-sided accent on the interest of the attaching party. A high degree of uncertainty regarding the intentions behind and implementation of the provisions in the proposed Regulation make it impossible to give a well-founded evaluation of the balance of the Regulation. It is, however, clear that the European Commission is in favour of a far-reaching encroachment on fundamental rights such as the privacy and proprietary rights of citizens and businesses in the Member States to enable attachment for claims that have not yet been established. In this context, I argue for a systematic and indepth revision of the proposed Regulation that should lead to more clarity and a considerably stronger position of the intended attachee. At this stage, for the time being, a simplification of the Regulation in the form of a ‘provisional attachment’ may perhaps provide a good solution.