Seizing is believing: the Dutch pre-judgment seizing order in the EU

The proceeding is based on a short seizing request, drafted and signed by a Dutch lawyer, to the court which needs to show prima facie evidence that supports the clients’ cause of action against the debtor. All kind of assets can be seized, such as shares, third party claims (including bank accounts), real estate property, movable property; you name it. The request can include a repeating order, meaning bank accounts can be seized multiple times within a certain timeframe. The purpose of the pre-judgment seizing is to prevent the debtor from frustrating recovery during litigation. Therefore, the debtor is usually not heard, warranting the required surprise attack. The proceeding applies to any of the debtors’ assets in the Netherlands, notwithstanding where the main proceeding is or will be pending. Since the Recast Brussels Regulation (EU 1215/2012) the proceeding also applies to creditors, who will need to litigate in the Netherlands and desire to seize assets in other EU member states. Article 2, Section a, second paragraph of the Brussels Recast Regulation broadens the definition of judgment, including pre-judgment seizing orders. However, the pre-judgment seizing order must be served upon the debtor. This means a non-Dutch creditor or Dutch creditor can obtain a Dutch pre-judgment seizing order to seize the assets of a debtor in other EU member states, as long as that pre-judgment seizing order is served to that debtor. That might look like a struggle, since the element of surprise could be at risk. The right way to tackle this problem is through cooperation with local lawyers where the debtor resides and where the assets are located. Before the debtor is served with the Dutch pre-judgment seizing order, the proper local seizing mechanisms to execute the pre-judgment seizing order must be in place upon the moment of proper service. Of course, this endeavour is costly due to the cross-border services needed. However, if the case is worth it, not many debtors will see it coming. Inevitably, there are ways to uplift the Dutch pre-judgment seizing order. However, in general this is a difficult task and the battle must take place before the Dutch court. This means that for the right case, at the right moment, the Dutch pre-judgment seizing order can determine the outcome of your client’s dispute.

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