ECLI:NL:RBAMS:2024:8779, Rechtbank Amsterdam, 17-07-2024, C/13/753927
Rechtbank Amsterdam — Uitspraak 
Datum: 2024-07-17 00:00:00.000000
Rechtsgebied: Civiel recht

Samenvatting: In this case applicant requested the Court to grant leave for a third-party attachment against the debtor. The Court finds that an attachment order against a debtor based in another EU member state can be based on Dutch national law. This is not pre-empted by the EAPO Regulation, since Article 1(2) of this Regulation allows preservation measures under national law.
        The NCC Court in Summary Proceedings has jurisdiction to deal with the application, as the applicant and debtor designated the NCC as the appropriate chamber of the Amsterdam District Court to deal with the merits of any dispute aring from their agreements. 
        The legal requirements for a pre-judgment third-party attachment (Article 718 Dutch Code of Civil Procedure, DCCP) have been fulfilled. The applicant has demonstrated, on a summary enquiry, that its right as invoked in the application has merit, and the requested attachments meet the requirements of proportionality and subsidiarity. Therefore, the application will be awarded. Leave for attachment will be granted on the condition of service of the judgment prior to enforcement, as this is a requirement for this decision to be a “judgment” within the scope of Article 2(a) of the  Brussels 1bis Regulation.
      
      
      
        Verzoekschrift conservatoir derdenbeslag bij de Netherlands Commercial Court in de Engelse taal. De verordening betreffende het Europees bevel tot conservatoir beslag op bankrekeningen (EAPO) staat niet aan het leggen van conservatoir beslag naar nationaal recht in de weg, omdat artikel 1 lid 2 van deze verordening die mogelijkheid open laat.
        De NCC is bevoegd om van het beslagrekest kennis te nemen, omdat de verzoekster en de beslagene in hun overeenkomsten de NCC-kamer van de rechtbank Amsterdam als bevoegde rechter hebben aangewezen om van de hoofdzaak kennis te nemen.
        Aan de vereisten voor een conservatoir beslag onder een derde is voldaan (artikel 718 Rv). Verzoekster heeft voldoende onderbouwd dat de gestelde vordering summierlijk deugdelijk is. De verzochte beslagen voldoen aan de vereisten van proportionaliteit en subsidiariteit. Het gevraagde verlof zal dan ook worden verleend, met dien verstande dat de beschikking vooraf aan de beslagene moet worden betekend, zodat deze valt binnen de reikwijdte van artikel 2 sub a van de Brussel 1bis-verordening.

judgment
    AMSTERDAM DISTRICT COURT
    
    
      Netherlands Commercial Court 
      NCC District Court – Court in Summary Proceedings
    
    
    
      Case number: C/13/753927
    
    
    
      
        Judgment in ex parte application proceedings
      
    
    
    17 July 2024
    
    
      
        Applicant: 
      
        [APPLICANT]
        , 
      
      [city] (Netherlands),
      represented by C.G. Verburg, lawyer
    
    
    
      
        Debtor:
      
      
        [DEBTOR], 
      [city] (Germany).
    
    
  
  
    
      1Application
    
      1.1.
      Applicant requests the Court to:
      
        
          grant leave for a third-party attachment against the debtor, 
        
        
          estimate the applicant’s claim against the debtor, including interest and costs, at € 2,663,391.80,
        
        
          determine the time limit to initiate main proceedings at 14 days from the date after the first attachment is made, 
        
        
          grant leave to repeat the attachment up to three times within a 30 day timeframe after the first attachment,
        
        
          declare the decision enforceable notwithstanding any remedy
        
        
          issue the certificate as referred to in Article 53 of the Brussels Regulation (recast).
        
      
      
    
  
  
    
      2Discussion
    
      2.1.
      The first issue for the Court to decide on is whether a cross-border application for third-party attachment, targeting a debtor’s bank accounts held at a German bank (with a German IBAN and Swift identifier), can be awarded on the basis of Dutch national law. There may be some doubt on this issue, given Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure (the EAPO Regulation). The Court, however, concludes that an attachment order can be based on Dutch national law, as Article 1(2) of the EAPO Regulation provides that an Account Preservation Order shall be available to the creditor as an alternative to preservation measures under national law, showing that such measures under national law are available notwithstanding the EAPO Regulation.
      
    
    
      2.2.
      Under Article 35 of the Brussels Regulation (recast) (1215/2012), an application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State. And in any event, the Court today has jurisdiction to deal with the merits of the case under Article 25 (1) of the Brussels Regulation, as the applicant and the debtor designated the Amsterdam District Court in a choice-of-court clause and agreed on the appropriate NCC chamber of the Amsterdam District Court to deal with all disputes, including interim and protective measures, arising from the biomethane purchase agreements concluded on 23 April 2024. 
      
    
    
      2.3.
      All other NCC requirements (Article 1.3.2 NCC Rules of Procedure) have been met. Therefore, the NCC Court in Summary Proceedings is the appropriate chamber to deal with this application.
      
    
    
      2.4.
      Dutch law applies to the procedure and requirements for granting leave for a pre-judgment attachment by a Dutch court. Dutch law also governs the biomethane purchase agreements pursuant to the choice of law clauses in the respective agreements (Articles 14.6 and 16.1).
      
    
    
      2.5.
      The legal requirements for a pre-judgment third-party attachment (Article 718 Dutch Code of Civil Procedure, DCCP) have been fulfilled. The applicant has demonstrated, on a summary enquiry, that its right as invoked in the application has merit; and the requested attachments meet the requirements of proportionality and subsidiarity. Therefore, the application will be awarded.
      
    
    
      2.6.
      The time limit for initiating the main proceedings will be set at 14 days after the first attachment has been made, and the applicant will be allowed to repeat the attachment up to 3 times after the first attachment, as requested in the application.
      
    
    
      2.7.
      Under Article 2(a) of the Brussels Regulation (recast) a judgment for protective measures given without the debtor being summoned to appear (as is the case with Dutch attachment proceedings, including today’s judgment), is only considered to be 	 meaning ready for enforcement under the Brussels Regulation) where the judgment is served on the defendant prior to enforcement. Leave for attachment will therefore be granted on the condition of service prior to enforcement.
      
    
    
      2.8.
      The Court will issue the certificate pursuant to Article 53 of the Brussels Regulation (recast), as requested in the application.
      
      
    
  
  
    
      3Order
    THE COURT IN SUMMARY PROCEEDINGS
    
    
      3.1.
      Leave is granted for the attachment as requested (see the attached application). Applicant is allowed to repeat the attachment up to a maximum of 3 times within a timeframe of 30 days after the first attachment.
      
    
    
      3.2.
      The applicant’s claim against the debtor is estimated at € 2,663,391.80, including interest and costs.
      
    
    
      3.3.
      The time limit to initiate main proceedings is set at 14 days from the date after the first attachment is made.
    
    
      3.4.
      This judgment is enforceable notwithstanding appeal,
      
    
    
      3.5.
      This judgment is given under the condition that the judgment is served on the debtor prior to enforcement.
      
      
        Done by L.S. Frakes, Judge, assisted by W.A. Visser, Clerk of the Court. 
        Issued in public on 17 July 2024.
      
      
      
      
      
        
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