Skip to content

Third-party attachment without an employment contract: when must the debtor's own company pay?

19 August 2026Juriaan de Vries

Introduction

There is a judgment, and the bailiff attaches the debtor's salary. Four weeks later the declaration arrives from the company he works for: nothing owed, no employment contract, no legal relationship. That company is his own holding company, and he is its director and sole shareholder.

Section 479a of the Dutch Code of Civil Procedure (DCCP) exists for that situation. Does the debtor regularly work for a third party for nothing or for an unreasonably low fee? And is that work of a kind that is ordinarily only done for payment? Then a reasonable fee is assumed to be owed for the creditor's benefit. The court sets that fee and the attachment reaches it.

What the garnishee must declare

Under Section 476a(2) DCCP the garnishee must give a reasoned statement of what it owes the debtor, or will owe from a legal relationship already in existence. That statement covers the nature and amount of the claims caught, together with any further information useful for determining the parties' rights. That statement is an information duty, and the rest of the procedure turns on it.

Where the garnishee is the debtor's own company, little of that materialises. In the case of the Municipality of Rotterdam, where the attachment covered EUR 965,530.52, the garnishee gave no insight into the hours the debtor had billed; the invoices and payment records were missing and were not produced. In Madiba the model form went unused and the brief declaration that was made came with almost no supporting documents, despite requests and undertakings given at the hearing.

In that last case the Court of Appeal of Arnhem-Leeuwarden listed what should have been there. Documents that might point to nil returns or refunds. The loan agreement referred to for the drawings for living expenses. And annual accounts or other bookkeeping records, whether in draft or final form. That list works as a checklist, because it shows which documents a court expects in this type of case.

What the bailiff can request beforehand

Before the writ goes out, the bailiff can request information himself. Under Section 475g(1) DCCP the debtor must, on request, disclose his sources of income. Subsection 2 goes further and empowers the bailiff to ask anyone he suspects of making periodic payments to the debtor whether that is so, with a written duty to answer for the person asked. Subsection 3 prescribes what that answer contains: the interval and the amount of the payments after statutory deductions, attachments already levied and set-offs in progress. In addition, under Section 475ga DCCP the Employee Insurance Agency (UWV) provides the bailiff, on request, with data from the wage register on the nature of the periodic income and the identity of the payer.

Among the 37 decisions in the central index that cite Section 479a DCCP, that route plays a small part: seven touch on Section 475g DCCP or the wage register, against thirty that turn on evidence within the proceedings. There are two reasons for that. A director-shareholder can be on the payroll without anything being filed with the UWV, as happened in a case before the District Court of Overijssel of March 2026 that recurs below, so an empty result at the UWV says little. And the debtor's information duty in Section 475g(1) DCCP carries no sanction that compels him to speak.

The annual accounts filed with the Chamber of Commerce are therefore the most useful public document. The 2024 annual accounts of Torque, the law firm that was the garnishee in that case, showed that salaries and social security charges came to EUR 37,461. The director was at that time the only employee. The same documents brought the reserved dividend to light. In a Rotterdam case against a web of holding companies, the corporate objects in the articles, the number of employees according to the commercial register and the annual accounts were used, company by company, to build the case that the director performed work for which a fee had never been awarded.

For documents held only by the garnishee, Section 843a DCCP used to be invoked, as happened in two Rotterdam declaration proceedings alongside Section 22 DCCP. That provision lapsed on 1 January 2025 and was replaced by the regime of Section 194 DCCP and following. That regime imposes a requirement which is awkward here: the right of inspection belongs to a party to the legal relationship the data concern, and vis-à-vis the debtor's companies the attaching creditor is not such a party. Outside the proceedings the creditor gets no further than what is public. That is why this is almost always fought out in the declaration proceedings.

Section 479a DCCP: a reasonable fee is assumed

That changes what the creditor has to establish. The question is no longer whether a claim exists, but whether work is being done that is ordinarily paid for. The Court of Appeal of The Hague put it briefly in the case against Berley International. Even where it is established that the debtor received nothing for his work and has nothing to claim, a reasonable fee is assumed to be owed for the attaching creditor's benefit. That no salary or other fee was ever paid, the court held to be irrelevant. The answer the garnishee relies on thereby loses its decisive character.

The fiction operates only in relation to the attaching creditor. Between the garnishee and the debtor nothing changes, and no entitlement arises that the debtor can collect himself. That has a consequence which defences consistently miss: because the claim is assumed only in the proceedings and solely for the creditor's benefit, it does not exist beforehand and therefore cannot become time-barred. The Court of First Instance of Aruba rejected a limitation defence on that ground in the case brought by the State against Kalatinchi, where a fictitious fee was claimed for work going back to 2005.

The reach in time also extends back to before the attachment was levied. The Court inferred from a Supreme Court judgment of 27 June 1997 (NJ 1997/650) that third-party attachment also extends to the fees referred to in Section 479a DCCP for work performed before the attachment. Several district courts now include that in their standard framework with the addition "or performed before the attachment", as the District Court of Rotterdam did in the Rotterdam case and in that of Emoov.

What the creditor must allege and prove

The fiction lightens the burden of proof and does not remove it. The Court of Appeal of 's-Hertogenbosch said so at the outset in the long-running case about an inventor and entrepreneur: it is for the attaching creditors to prove that the debtor has a claim, possibly a Section 479a claim, against the third party. That is where the case failed: the debtor occasionally wandering into the workshop, sometimes answering the telephone and now and then standing in for the director does not amount to a performance capable of valuation in money. One attaching creditor's feeling that the father had done far more for the business than he cared to admit was not supported by sufficient factual foundation. The Court of Appeal of Arnhem-Leeuwarden rejected a reliance on the fiction for comparable reasons in 2023. That judgment also sets out the division that recurs in all these cases: the attaching creditor alleges and proves, and the garnishee bears a heightened duty to substantiate its denial.

What must be alleged differs per route. Where the work is done for nothing, the nature and extent of the work is the battleground. In the Berley case, witness evidence showed that the debtor was in de facto charge of the business on a weekly basis before, during and after the attachment, and gave tax advice to clients, without ever having been on the payroll. The Court of Appeal of Arnhem-Leeuwarden assessed, in a bankruptcy petition, the unpaid work of a retired director who was negotiating with the tax authorities about setting off revaluation reserves. His defence was that only he could do that work, because nobody else had mastered the subject. The court saw in that all the more reason to assume a fee was owed.

Where the fee paid is too low, the creditor must allege and substantiate that the amount is unreasonably low. The District Court of Gelderland in 2015 set the monthly fee at what the general partnership had actually paid out: EUR 3,500 up to and including February 2015 and EUR 2,500 thereafter. The reason was that the creditor had omitted to allege that EUR 2,500 was unreasonably low for the work being done. Where that allegation is made out, it succeeds: at Xena Holding, EUR 434.39 gross per month was unreasonably low for a nationally known artist employed by the company of his patron. In a case brought by a bankruptcy trustee against the practice company of a physiotherapist a salary of EUR 1,727.26 gross stood against a market range of EUR 3,737 to EUR 4,268.

Subsection 2 determines which circumstances carry particular weight: the nature of the work, the relationship of kinship or otherwise between the debtor and the third party, and the third party's financial capacity. That second factor identifies why the fee could stay out of sight. The Court of Appeal of Amsterdam said so plainly in the case of Boekel against the STAK. The relationship between the debtor and the foundation made it possible to keep the fee off the books, and thereby out of the sight of his creditors. That is precisely the situation the provision is meant for. The same factor can also help the garnishee: at Vanhommerig Holding the debtor and the garnishee were life partners, which in the court's view called for critical scrutiny, after which that scrutiny showed that the debtor, working as a fitter and salesman, earned what was due to him.

What happens if the garnishee does not substantiate

Against that stands a heavy duty on the garnishee. It must substantiate its declaration as far as possible with data and documents, a rule the case law draws from the Supreme Court judgment of 13 February 2009. The consequence of failing to do so is in Section 477a(1) DCCP: a garnishee who fails to make a declaration is ordered to pay the full amount for which the attachment was levied, as though it were itself the debtor. In Boekel's case against the STAK that happened by default judgment of 1 February 2017 for EUR 84,559. The foundation opposed the judgment and made its declaration that same day. The creditor then supplemented its grounds with a reliance on Section 479a DCCP.

What that means became clear in the Rotterdam case. The garnishee had substantiated only its own counterclaim and left the debtor's invoices to it unaccounted for. The court equated its declaration with no declaration at all and ordered it to pay the full attached amount of EUR 965,530.52, as though it were the debtor itself.

In the Move4U case the District Court of Rotterdam applied that sanction in a chain: three companies were each ordered to pay the amount attached with them, in each case for the debt of the party above them in the structure.

That sanction reaches further than the complete absence of a declaration. A declaration made in court that fails to meet the requirements of Section 476a(2) DCCP may be treated in its consequences as though no declaration had been made at all. That is how the District Court of Rotterdam summarised the settled case law. Where the line lies was made clear by the District Court of Overijssel in 2026. Torque had produced a wage tax return, annual accounts and an income tax return. That was enough to avert that treatment, even though the payslips over eight months and the actual salary payments the creditor had asked for were missing. Documents that genuinely bear on the income declared are therefore sufficient; a bare assertion is not. One condition does not appear in the headline rule: the garnishee must be given the opportunity to amend or supplement its declaration, and whether the equation follows depends on all the circumstances of the case.

Where a declaration has been made, the dispute procedure of Section 477a(2) DCCP applies, with a two-month period for issuing the writ of summons after the declaration, the expiry of which extinguishes the right. In those proceedings the court must establish whether the declaration is correct, taking into account the facts and circumstances that have since emerged. On 12 April 2024 the Supreme Court set aside a judgment in which the court of appeal had confined itself to the question whether the garnishee's declaration could initially be made in good faith. The Supreme Court held at the same time that Sections 475 to 479a DCCP and their Caribbean counterparts must be interpreted in the same sense by virtue of the principle of concordance. Documents that surface only during the proceedings can therefore still be deployed against the declaration.

The court can also compel those documents within the proceedings. In the Overijssel case the company was given the opportunity, by interim judgment, to substantiate its declaration with documents showing the monthly income. It was then ordered to substantiate the 2023 salary with payslips and bank transfers, expressly because only it has that information. The determination can also be reached by other routes: the Court of Appeal of 's-Hertogenbosch dealt with a claim to determine a reasonable fee in preliminary relief proceedings (kort geding), and for prejudgment attachment Section 720 DCCP declares the same provisions correspondingly applicable. Where an order under Section 477a(1) DCCP already yields more than the fiction could, there is no interest in the Section 479a claim, as the District Court of Midden-Nederland held in 2017 when awarding EUR 66,861.08.

How the court sets the amount

For the amount the court uses substitute yardsticks, for the same reason: the real figures sit with the garnishee. The customary-salary rule of Section 12a of the Dutch Wages and Salaries Tax Act 1964 is the one most often used. The Court of Appeal of The Hague set the fee in the Berley case at the customary director's salary the tax authorities applied for 2014: EUR 44,000 gross per year. The court took the gross figure because the fee is fictitiously determined and the debtor was not on the payroll. In the case of Move4U against a web of holding companies and an administration foundation, EUR 3,750 per month was claimed per company, calculated from each entity's incorporation. The court never reached that determination: it ordered the garnishees to pay the full attached amount under Section 477a(1) DCCP and dismissed the remainder of the claim. The Madiba judgment names Section 479a DCCP and the tax rule in one breath as two independent grounds on which a director-shareholder may be deemed to receive a reasonable fee.

Where a collective labour agreement describes the work, that is the yardstick. In the Vanhommerig case the claim failed on the job classification of the 2017 Metal and Engineering collective agreement. Salary group 8 was reserved for management and for advisory work on sun protection and roller shutters. Installation work went no further than job group 6, and installation was what the debtor predominantly did. For the physiotherapist, the market range came from a public salary comparison. For the amount, the trustee took the income the director had actually received in 2012, EUR 47,004. After deducting the salary actually paid, that produced a claim of EUR 73,648.20.

Where a salary is reduced around the time of the attachment, the previous year's salary is the natural benchmark. Torque reduced the salary of its director and sole shareholder during 2024 to the minimum director's salary of EUR 3,121.77 gross per month. After tax, social security contributions and the protected-earnings threshold (beslagvrije voet), EUR 32.33 per month was left for the attaching creditor. The court found that the work continued unchanged and that there was no commercial reason for the reduction. The director continued to fund his living largely through the company, partly from substantial-interest income and a EUR 150,000 dividend reserved in the annual accounts. For the period from September 2024 it took the 2023 salary as its reference.

The fee determined is capped by the claim for which the attachment was levied. In the case of a newspaper deliverer who, according to her own statements in earlier debt restructuring proceedings, performed work for the garnishee, the subdistrict court set the reasonable fee at EUR 330 net per month. It capped the monthly payments at EUR 64,189.22, the amount of the claim. The Court of Appeal of Arnhem-Leeuwarden upheld that on appeal. That same case shows where evidence can come from when the garnishee stays silent: from what the debtor has said about herself in other proceedings.

When Section 479a DCCP does not apply

The fiction works only against the party for whom the debtor does the work, and then only where attachment has been levied with that party. The District Court of Noord-Holland rejected a reliance on Section 479a DCCP in 2017 because the attachment was with the Social Insurance Bank and not with the company for which the debtor allegedly worked in a pet shop. A creditor who wants to invoke the fiction against a holding company or an operating company must therefore levy attachment there as well.

There is also the limit in Section 475(1) DCCP: attachment reaches claims the debtor has against the third party or will acquire directly from a legal relationship already in existence at the time of the attachment. If the debtor moves to another entity's payroll, a fresh writ is needed for that entity. The claim against the old entity does not automatically fall away. In the Overijssel case the director left the operating company's employment on 1 July 2025 and entered the holding company's. The court invited the parties to address the nature and extent of the work he still performed for the operating company after that date.

One defence garnishees tend to raise is that the enforcement itself is on shaky ground. It rarely helps them. The Court of Appeal of Arnhem-Leeuwarden held in the Vanhommerig case that a provisional setting aside of the enforceable title in the proceedings between debtor and creditor had no effect here. The District Court of Midden-Nederland held that abuse of right requires more than the assertion that the judgment is wrong. Enforcing a judgment before it has become final is always at the creditor's own risk.

Finally, the protected-earnings threshold limits the outcome, even for a fictitiously determined fee, and wage attachment reaches only wages. Dividend distributions fell outside the attachment levied in the Overijssel case, while the director maintained his standard of living precisely through dividends and substantial-interest income. A creditor who attaches only salary leaves that second stream of money running.

The trustee and bankruptcy

In bankruptcy the information problem shifts. Under Section 105 of the Dutch Bankruptcy Act the bankrupt must give the trustee all the information required of him. He must also inform the trustee of his own accord of facts he knows or ought to know are relevant to the size, administration or winding up of the estate. Here, failure carries a real sanction: Section 87 of that Act allows committal to custody for failing to comply with those obligations, or where there is well-founded fear of non-compliance.

In bankruptcy the power under Section 479a DCCP belongs to the trustee, for the benefit of the estate. The provisional relief judge of the District Court of Gelderland rejected the argument that a trustee has no such right, referring to a Supreme Court judgment of 8 November 1963 (NJ 1964/144). The prejudgment attachments the trustee had levied with a bank, seventeen health insurers and factoring companies were upheld. Alongside the fictitious fee, that trustee claimed EUR 33,312.84 in salary the company had paid the director after the date of bankruptcy, in defiance of the bankruptcy attachment. That was above the monthly exempt amount of EUR 1,417.11 set by the supervisory judge. Income the bankrupt earns during his bankruptcy falls into the estate under Section 20 of the Dutch Bankruptcy Act, save to the extent the supervisory judge decides otherwise.

For a creditor considering a bankruptcy petition, the fiction matters along another axis as well. The Court of Appeal of Arnhem-Leeuwarden saw in the director's unpaid work precisely the prospect of assets that justifies a bankruptcy: claims against the companies of which he was a director. That the trustee had not yet brought that claim could not be held against the petitioning creditor. The Section 479a claim can also be assigned: in the case leading to the Supreme Court judgment of 3 July 2026 a trustee had assigned his claims against a company by deed, for work performed by the director and expressly including those under Section 479a DCCP. The cassation proceedings turned on the requirement of sufficient identification in that assignment.

What does this mean in practice?

For the creditor, the gain from Section 479a DCCP is that he need not prove what he cannot see. Build the writ of summons on the work rather than on the pay: the nature, extent and regularity of what the debtor actually does, supported by what is public and by what he has said about himself elsewhere. Sue primarily under Section 477a(1) DCCP where the declaration is missing or bare, and in the alternative under Section 477a(2) DCCP in conjunction with Section 479a DCCP. Count two months from the declaration, because after that the right to dispute it has lapsed. Levy attachment with every entity for which the debtor actually works, because the fiction operates only there.

For the garnishee, the declaration determines the litigation risk. A statement that nothing is owed, without payslips, wage tax returns, annual accounts or bank transfers, risks being treated as no declaration at all, with an order for the full attached amount as the consequence. Use the model form, and add the documents that genuinely bear on the income declared.

For the debtor who routes his remuneration through his own company, the outcome of this case law is that the structure buys him little where the work visibly continues. A reduction to the minimum director's salary around the time of an attachment calls for a commercial explanation borne out by the company's own annual accounts. And a move to the holding company's payroll leaves the operating company on the hook. That the fee was never paid and never booked is the starting point for applying the fiction, and serves as no defence.

Frequently asked questions

Can salary be attached where there is no employment contract?

Yes. Section 479a DCCP provides that a reasonable fee is deemed to be owed for the creditor's benefit where the debtor regularly performs work for a third party for nothing or for an unreasonably low fee, and that work is ordinarily only done for payment. The court sets the amount in the declaration proceedings.

How do you obtain the documents when the debtor and his company stay silent?

Within the declaration proceedings, because there the garnishee bears the duty to substantiate its declaration as far as possible with data and documents, on pain of an order for the full attached amount. Outside the proceedings the bailiff can ask for the sources of income under Section 475g DCCP and request data from the wage register, and the annual accounts filed with the Chamber of Commerce offer public footholds.

Within what period must the garnishee's declaration be disputed?

Within two months of the declaration, the garnishee must be summoned to make a declaration in court and to pay what the court determines. Section 477a(2) DCCP provides that exceeding that period extinguishes the right.

Cited case law

Supreme Court

Courts of appeal

District courts and the Court of First Instance

Juriaan de Vries — lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

See also