Attachment across the border and the competent court
A NATO headquarters asked a Dutch court to lift an attachment levied in Belgium. Was that court entitled to decide the matter? The Supreme Court of the Netherlands referred the question to the Court of Justice. The answer came on 3 September 2020: the member state where the attachment was executed has no exclusive jurisdiction over it. A debtor therefore does not have to litigate abroad to have a Dutch measure lifted.
Fuel for a NATO operation, attachment in Brussels
Supreme Site Services supplied fuel for a NATO peacekeeping operation. It says it was never paid. With leave from the judge in preliminary relief proceedings in Limburg it obtained an interim garnishee order against BNP Paribas in Brussels, on the balance of an escrow account. SHAPE, the military headquarters in Belgium, applied in preliminary relief proceedings to have that order lifted. It also sought a prohibition on levying such an order again on the same grounds, relying on immunity from execution. The judge in preliminary relief proceedings and the court of appeal both ruled in SHAPE's favour.
The cassation appeal turned on that immunity. Advocate General Vlas raised a different question of his own motion, outside the grounds of appeal. Was the Dutch court entitled to decide this at all? Article 24(5) of the Brussels Ia Regulation confers exclusive jurisdiction, for the enforcement of judgments, on the courts of the member state of enforcement. That rule is mandatory. Article 27 then obliges the court to declare of its own motion that it has no jurisdiction.
His opinion of 21 September 2018 shows how open the question was. Case law and commentary read the provision both broadly and narrowly. On the broad reading, disputes about protective attachments fall within it. On the narrow reading, they belong under Article 35 on provisional measures. Vlas chose the narrow reading and advised a reference to the Court of Justice.
Court of Justice: lifting an attachment falls outside exclusive enforcement jurisdiction
The Court followed that line. An action for interim relief seeking the lifting of an interim garnishee order executed in another member state falls outside Article 24(5). That provision concerns disputes arising from the use of force, constraint or distraint to have a judgment actually carried out. An application to lift a protective measure is about something else.
The ordinary rules of jurisdiction therefore apply. The court with jurisdiction over the substance of the matter may also order protective measures; that is settled case law of the Court. For the lifting, Section 705 DCCP designates the judge in preliminary relief proceedings who granted the leave.
Advocate General and Supreme Court differ on the cooperation order
Between that opinion and that judgment lay a case on the arrest of a ship. V Marine arrested a vessel belonging to Dexhon in Morocco. Dexhon deposited a sum with the court there to have the arrest lifted. In the Netherlands it then sought an order requiring V Marine to cooperate in the release of that deposit, against a bank guarantee.
Advocate General Vlas considered that permissible. The order sought cooperation in an application to the Moroccan court. That is less far-reaching than release itself. He compared it with a claim for cooperation in creating a mortgage over immovable property situated in another member state, which falls outside Article 24(1).
On 17 July 2020 the Supreme Court went the other way. Where the Arrest Convention confers exclusive jurisdiction on the forum arresti, a court of another contracting state may not cut across that jurisdiction. It does so where it orders a party, on pain of a penalty payment, to adopt a particular position in those foreign proceedings or to cooperate in a particular outcome. According to paragraph 3.7 that applies equally in preliminary relief proceedings and to a provisional claim under Section 223 DCCP.
The two decisions sit side by side. The Supreme Court's judgment rests on the Arrest Convention, which prevails as a specialised convention under Article 71 of the Regulation, and it presupposes an exclusive jurisdiction that the Court of Justice excluded seven weeks later for Article 24(5). Where such jurisdiction does exist, the warning about how the order is framed applies in full.
When immovable property shifts jurisdiction
For immovable property the boundary runs along Article 24(1), which designates the courts of the member state where the property is situated and is construed strictly. That a claim touches immovable property is therefore not enough. In 1992, in Reichert and Kockler, the Court held that the actio pauliana falls outside the exclusive rule, even though that claim affects the power to dispose of immovable property.
In Schmidt v Schmidt the dividing line ran straight through a single set of proceedings concerning property situated in Austria. The claim to set aside the deed of gift for the donor's incapacity fell outside Article 24(1). The claim to remove the entries recording the donee's ownership from the land register fell within it. Advocate General Kokott had proposed precisely that division. She pointed out that Article 8(4) allows both claims to be brought before the same court.
Reitbauer drew the line further still from the location of the property. A creditor challenged the distribution of the proceeds of a judicial auction. He sought a declaration that a competing claim had been extinguished by set-off, and a declaration that the security right for it could not be invoked. The Court brought that within neither head of exclusive jurisdiction, because the claim rested on rights in personam. Advocate General Tanchev had proposed weighing each ground separately, and the Court did so.
Dutch practice shows where the boundary lies. In 2021 the District Court of Rotterdam declined jurisdiction over a foreign dwelling because its ownership was in dispute between the spouses. In 2023 the District Court of Zeeland-West-Brabant accepted jurisdiction over claims to end co-ownership of a dwelling in the Netherlands, with the parties resident in Germany. The same test, and the ownership question makes the difference.
What does this mean for an application to lift an attachment?
The gain of 2020 lies in where the dispute is fought. What can undo that gain is how the claim is framed. A breach of Article 24 is a ground for refusing recognition of the judgment in another member state. And Article 27 obliges the court to decline jurisdiction of its own motion, so the question will come up whether or not a party raises it.
The boundary runs along what is claimed and from whom. An application to lift the measure stays with the Dutch court. A claim determining ownership or a right in rem in the foreign property belongs to the court of the place where it is situated, and so does the removal of an entry recording ownership. The other party can be required to perform its own obligation. How it conducts itself in foreign proceedings lies beyond the reach of a Dutch order once a specialised convention entrusts those proceedings exclusively to the foreign court.
On that last point the Supreme Court decided against its own Advocate General. That choice reaches further than the ship arrest in which it was made.
For the attaching creditor it works the same way. A creditor who obtains Dutch leave and attaches assets abroad cannot send the debtor abroad to have the attachment lifted. The leave and any challenge to it stay before the same court.
Frequently asked questions
May a Dutch court lift an attachment levied in another EU member state?
Yes. On 3 September 2020 the Court of Justice held that such an action for interim relief falls outside Article 24(5) of the Brussels Ia Regulation. The member state of enforcement therefore has no exclusive jurisdiction. The ordinary rules apply, and Section 705 DCCP designates the judge in preliminary relief proceedings who granted the leave.
When does the court of the member state where the property is situated have exclusive jurisdiction?
When the claim determines ownership or the existence of a right in rem in the property. Removing an entry recording ownership from the land register falls within it too, as the Court held in Schmidt v Schmidt. A claim resting on a personal legal relationship falls outside it. That the property lies abroad is not enough on its own.
What happens if a Dutch court wrongly assumes jurisdiction?
That affects whether the judgment can be used across the border. A breach of Article 24 is a ground for refusing recognition in another member state. A claimant who needs the judgment there is therefore well advised to raise the jurisdiction question himself. Article 27 obliges the court to examine it in any event.
Cited case law
Court of Justice of the European Union
- CJEU 3 September 2020, C-186/19 (Supreme Site Services v SHAPE) — an action for interim relief seeking the lifting of an interim garnishee order executed in another member state falls outside the exclusive jurisdiction of Article 24(5) Brussels Ia.
- CJEU 10 July 2019, C-722/17 (Reitbauer) — a claim for a declaration that a claim has been extinguished by set-off and that the security right for it cannot be invoked falls within neither Article 24(1) nor Article 24(5).
- CJEU 16 November 2016, C-417/15 (Schmidt v Schmidt) — the claim to set aside a gift of immovable property falls outside Article 24(1); the claim to remove the entries recording ownership from the land register falls within it.
- CJEU 26 March 1992, C-261/90 (Reichert and Kockler), ECLI:EU:C:1992:149 — the actio pauliana falls outside the exclusive rule, although the claim affects the power to dispose of immovable property; cited in Reitbauer.
Opinions of Advocates General
- Opinion of Advocate General Vlas, 21 September 2018, ECLI:NL:PHR:2018:1038 — raises of his own motion whether lifting an attachment levied in Belgium falls under Article 24(5), finds no acte clair and advises a reference.
- Opinion of Advocate General Saugmandsgaard Øe, 2 April 2020, C-186/19 — ties the question whether the claim is a civil or commercial matter to the nature of the right secured by the attachment.
- Opinion of Advocate General Vlas, 24 January 2020, ECLI:NL:PHR:2020:54 — an order to cooperate in the release of a deposit is a less far-reaching claim and does not cut across the jurisdiction of the forum arresti.
- Opinion of Advocate General Tanchev, 3 April 2019, C-722/17 — each ground advanced must be weighed separately, so the proceedings are not characterised as a whole.
- Opinion of Advocate General Kokott, 7 July 2016, C-417/15 — proposes the division between setting aside and removal from the land register, and points to Article 8(4).
Supreme Court of the Netherlands
- Supreme Court 17 July 2020, ECLI:NL:HR:2020:1280 — where the forum arresti has exclusive jurisdiction, an order to adopt a position or cooperate in an outcome there, on pain of a penalty payment, cuts across that jurisdiction unacceptably.
District courts
- District Court of Rotterdam 15 April 2021, ECLI:NL:RBROT:2021:3509 — no jurisdiction over foreign immovable property because its ownership was in dispute between the parties.
- District Court of Zeeland-West-Brabant 8 February 2023, ECLI:NL:RBZWB:2023:768 — jurisdiction under Article 24 over claims to end co-ownership of a dwelling situated in the Netherlands.