Introduction
Attachment and enforcement are the final stage of a dispute: securing recovery while proceedings run, and realising a judgment afterwards. A claim without recovery is a paper victory, so the attachment strategy often comes first. Attachment and enforcement give rise to their own disputes: over the lawfulness of the attachment and over the manner and admissibility of enforcement.
Prejudgment attachment
Even before there is a judgment, prejudgment attachment (conservatoir beslag) can be levied with leave of the interim relief judge on bank accounts, receivables, movable property or real estate of the opposing party (Article 700 of the Code of Civil Procedure, DCCP). The attachment freezes the situation pending the main action. Leave is granted on a summary application, usually without hearing the party attached; after the attachment a claim on the merits must follow in time, and the party attached can seek its lifting.
Lifting the attachment
The party attached can seek the lifting of a prejudgment attachment, among other things where it summarily appears that the right invoked is unsound or the attachment unnecessary (Article 705(2) DCCP). In De Ruiterij/MBO the Supreme Court set out how that test works: it is for the party seeking the lifting to make the unsoundness plausible, but the court decides after weighing what both parties have summarily substantiated, and the reasoning of that provisional assessment is held to a lower standard than in the proceedings on the merits (Supreme Court 14 June 1996, ECLI:NL:HR:1996:ZC2105). Alongside soundness, the court weighs the parties' interests and the proportionality of the attachment.
Executory attachment and the enforcement dispute
With an enforceable title, such as a judgment or a notarial deed, the creditor can proceed to enforcement: executory attachment, public sale or a foreclosure auction of a home. The bailiff carries out the enforcement within the statutory safeguards. Against a threatened or ongoing enforcement, the enforcement dispute is available (Article 438 DCCP). The test for suspension is strict: the court can suspend enforcement only where the party enforcing has no interest worthy of protection, which may be the case where the judgment manifestly rests on a legal or factual error, or where an emergency has come to light after the judgment (Supreme Court 22 April 1983, ECLI:NL:HR:1983:AG4575, Ritzen/Hoekstra). Abuse of the power to enforce can be curbed by the court along that route.
What decides the outcome
What is decisive is the soundness and proportionality of the attachment, the presence of a valid title, and whether the enforcement amounts to abuse, measured against the strict error-or-emergency test. A party that maps the recovery position early and sets up the attachment carefully stands stronger in the dispute about it.