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1 Netherlands, Dr. Mirjam Freudenthal Questionnaire: Garnishment

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1 Netherlands, Dr. Mirjam Freudenthal Questionnaire: Garnishment Netherlands, Dr. Mirjam Freudenthal Questionnaire: Garnishment Preliminary remarks There are two kinds of garnishment: provisional garnishment and garnishment by way of execution. Both kinds will be discussed. In the Netherlands provisional garnishment will first be instiguted which is then transformed into an executory gnm once a title is obtained in the procedure on the merits. For that reason the statutory provisions on executory gnm are of analogous application to the provisional gnm. Therefore, the following three obligations exist on the part of the third party in a gnm in provisional as well as in executory gnm, namely 1. to retain the debtor’s money in cash 2. to make a declaration concerning the sum of money 3. to enquire into already existing gnms. 1. Competence of the enforcement organs 1.1. In the case of a provisional gnm the ‘voorzieningenrechter’ of the district court has jurisdiction if one or more of the goods in question lies within his judicial district. In the case of a provisional gnm not on goods but on rights and claims, jurisdiction lies with the court of the place of the debtor’s habitual residence as well as that of the habitual residence of the garnishee (art. 700 CCP). A legal body / legal person is considered to have its habitual residence at the place where it has its seat according to its articles of association or its regulations. Banks are usually incorporated or private companies. The law requires that they mention their seat in their articles of association. 1.1.1. Bailiffs are officials, nominated by the Crown, with certain legally determined tasks. In civil procedure the bailiff plays an important role; the Bailiffs Act (Gdw 2001) assigns bailiffs an important monopoly. To the exclusion of others the bailiff is competent to execute essential legal tasks such as serving writs of summons, seizing goods and money, and the execution of judicial titles. Bailiffs follow part-time education at a college of higher education which lasts for three years. Emphasis is on the legal aspect of the profession. After three years an apprenticeship will follow (art. 5 Gdw). 1.1.2. Bailiffs may seize property only after leave from the ‘voorzieningenrechter’. All Dutch bailiffs have jurisdiction throughout the country. 1.2. International jurisdiction. 1.2.1. No, see 1.1.: attachment on claims may be requested at the court of the debtor’s habitual residence as well as of the habitual residence of the garnishee (art. 700 CCP). If the debtor has no place of residence but property such as a bank account in the Netherlands, the creditor may request leave for garnishment. Art. 767 CCP gives the Dutch courts jurisdiction if they are not competent on other grounds and as a consequence allows the creditor to compensate his claim with the debtor’s goods. This saisie foraine (seizure of a foreign debtor’s goods) is of limited importance since the Brussels-I Regulation, the Lugano Convention and the Treaty of New York all provide foreign judgements and arbitral awards with an exequatur which can be executed in the Netherlands. 1.2.1.1. Garnishment may be laid against branches and sub-offices of ordinary commercial banks, if they are large enough. Once garnishment has been laid against a branch in the Netherlands such garnishment will spread amongst all the other branches and offices in other countries, as soon as these branches and sub-offices are aware of the garnishment. 1 1.2.1.2. This is the case with the RABObank, which is an association of independent local banks, all of which are separate legal entities. Gnm has to be laid against each independent local bank where the debtor has an account, and is restricted to those local banks. 1.2.2.Only when the gnm is laid against movables is the court of the place of the assets competent. 1.2.2.1. It is assumed that considering its efficiency it is sufficient to lodge the request with one of the competent ‘voorzieningenrechters’, and that the request will cover all other cases and claims mentioned in the request. 1.2.3. Jurisdiction based on the habitual residence of the debtor or the garnishee (bank) is only accepted in procedures involving monetary claims. 1.2.3.1. See 1.2.2.1. 1.2.4. No. Even in procedures on the merits the general rule is that the court of the defendant’s habitual residence has jurisdiction. In addition provisional seizure/provisional gnm may be laid in favour of a claim in another procedure pending before another Dutch court (e.g. the Agricultural Tenancies court or the administrative courts), an arbitration or a foreign court. Only in case of the seizure of a foreigner’s assets is there the rule that the court which ordered the provisional seizure/gnm is ipso facto competent in the procedure on the merits. 1.2.5. No. As a rule no court procedure will be commenced against the garnishee. 1.2.6. Courts which have jurisdiction in the procedure on the merits are competent to grant a garnishment order. Art. 700 CCP (and art. 767 CCP in case of saisie foraine) lay down this rule: a ‘voorzieningenrechter’ is competent to order seizure if competent in the main case. However, with the above-mentioned exception in cases of garnishment, seizure does not entail jurisdiction. 2. The procedure for obtaining a garnishment order. 2.1. Especially in the case of a provisional seizure, the following conditions have to be satisfied: 2.1.1. a. Permission by the ‘voorzieningenrechter’. b. a specification of the amount for which the garnishment is requested. c. mention must be made of the court in which the procedure on the merits is pending (if the case is not yet pending, see 2.1.2). 2.1.2. If the procedure on the merits is not yet pending the court will give permission under the condition that the procedure on the merits will be entered within a specific period of time to be set by the court and this must be at least 8 days. This period may be extended if necessary. In the case of extending a garnishment the garnishee has to be informed in writing within 8 days after the end of the original period. Exceeding the period within which the procedure on the merits has to be commenced will terminate the seizure. 2.1.3. A request for a seizure does not require proof of the claim. 2.1.4. See attachement 2.2. Identification of the account 2.2.1. Yes, because the garnishment order is requested for all the money deposits and all claims which the the debtor has, or will have with the bank attached. 2.2.1.1. No 2.2.2. No. Provisional garnishment can be attached under the legal person, where the administration is kept, is not deceisive. Only the situation of the RABO-Bank (see 1.2.1.2) is different. For the exact name of this Bank you can consult the Chamber of Commere on-line. The Bank has to find out how many and which bankaccounts the debtor has. 2 Sometimes attorneys at law just attache provisional garnishments with the 3 largest banks, and they wait to see wether there is a hit. This procedure is followed especially when there is a great amount of money at stake. 2.2.2.1.The content of the request is generally defined by art. 261 ff. CCP. In addition the following rules apply: the request has to be filed by an attorney. The request must indicate certain data about the garnishee or the garnishment debtor to be summoned if necessary, as well as the kind of garnisment to be laid. The claim must be sufficiently grounded, which means that in case of money claims the garnishment will be for a fixed amount of money (costs included). The court in which the procedure on the merits is pending, or the period of time within which the procedure will be commenced, also have to be included. 2.3. Investigations 2.3.1. None. 2.3.2. The ‘voorzieningenrechter’ will reach a decision after a summary investigation based on the information and documents given by the applicant. In general the procedure is ex parte. 2.4. Amendments to the request are not possible. New requests may however be filed. Since garnishment orders may be based on very weak evidence, this kind of amendment is unknown. 2.5. Right to be heard In general there is no right to be heard. An exception exists in the case of garnishment in order to obtain wages, periodical allowances based on social security, child allowances, pensions and maintenance. In this case the debtor must be summoned. The ‘voorzieningenrechter’ may summon the debtor ex officio, if the claim is not very plausible. Some courts accept that the debtor may ask to be heard. In practice this is called ‘blackening the garnishment’. Based on general rules of procedure, other courts allow the creditor to comment upon his request if they intend to reject it. 2.5.1. see 2.5. 2.5.2. Leave for garnishment may be given subject to the condition that the creditor provides security for damages by the garnishment. Security must be provided before or at the time of serving the garnishment. However, this is very unusual: the creditor does not request it, while the debtor often has no knowledge thereof since he has not been heard. As a rule, the court will not order security on its own motion. Disputes concerning provisional seizure will often emanate in a summary procedure; so the garnishment may be terminated, for example if in a summary check it is clear that the claim is defective or the garnishment is unnecessary.
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