A creditor who wishes to collect his claim will first have to acquire a title to enforcement in the Netherlands. A judgment, for example. After acquiring a title to enforcement, the creditor may attach under a warrant of execution. In addition to well-known forms of attachment, such as the attachment of a dwelling or a wage attachment, a debtor’s
The portion of registered capital of a private or public limited company
» Meer over share shares in a company may also be attached in the Netherlands. However, levying execution against shares is not as easy as other attachments. Dutch debt Collection Lawyer Thomas van Vugt discusses this in more detail.
In the event of a warrant of execution against shares, the judgment creditor in the Netherlands will first have to submit an application to the court with the question whether the shares on which the attachment is levied may be sold and transferred, and furthermore within what period.
Such an application must be submitted within one month of the attachment being served, failing which it shall cease to have effect. Before the court in the Netherlands will give its consent, the parties involved will be summoned to respond to the request. The court will then take a decision. This is regulated in Article 474g of the Dutch Code of Civil Procedure (DCCP).
In a recent dispute, the lawyer of the creditor in question had submitted an application pursuant to Article 474g of the DCCP in the Netherlands. The court had not yet taken a decision on this. In the course of these proceedings, the debtor’s lawyer started preliminary relief proceedings against execution. In these preliminary relief proceedings, he sought suspension of the enforcement of the attachment. The lawyer argued, among other things, that the creditor would misuse his authority to proceed with the execution of the attachment. In fact, a case was still pending abroad concerning the amount of the claim.
The court in preliminary relief proceedings rejected this claim. As application proceedings under Article 474g of the DCCP were already underway, it was up to the Dutch court in those proceedings to decide whether there were grounds to suspend the execution of the attachment. This is because the court in the application proceedings can also act as the enforcement court. According to Dutch case law, this is not only possible but also preferable from a procedural-economic point of view.
In addition, the permission requested under Article 474g of the DCCP may also be refused in the Netherlands if the court is of the opinion that the judgment debtor has sufficiently demonstrated that the judgment creditor is misusing his authority. In short, there is no reason to consider the debtor’s claims in separate proceedings. The court can take them into account in the Article 474g proceedings.