Arresting vessels and attachment of other assets throughout Europe by ‘going Dutch’ under the revised Brussels Regulation

Arresting vessels and attachment of other assets throughout Europe by ‘going Dutch’ under the revised Brussels Regulation

Arnold van Steenderen
10 June 2015

The Netherlands is widely regarded as an arrest-friendly jurisdiction. This is true for the pre-judgment arrest of ships coming to the Dutch ports such as Rotterdam, but also for the pre-judgment attachment of other assets. Arresting vessels in the Netherlands is generally a quick and efficient process. A vessel may be arrested only hours after the application is submitted to court by a Dutch lawyer. Until now, however, the effect of a Dutch ex-parte leave to arrest was limited to the borders of the Dutch jurisdiction.

The introduction of the revised Brussels Regulation[1] appears to have changed all of this and it appears that the reach of a leave to arrest a vessel[2] coming from a Dutch court is now potentially extended to the complete territory of the European Union. This could equally apply to a leave to attach other assets located outside the Netherlands or to a garnishee order where the garnishee is located in another Member State.[3] In its judgment dated 12 March 2015[4], the Rotterdam court proved to be willing to grant an ex parte leave to Owner of pusher barge “NAVIN 24” to arrest the barge in Germany and/or Austria.[5] In the reasoning of the court it was sufficient for Owners to assert in their application for leave to arrest that it would be impossible or excessively time-consuming to submit a similar application to German or Austrian courts.

The Rotterdam court based its jurisdiction as to the subject-matter on a choice of forum clause in a time-charter. For provisional measures such as an arrest order or a garnishee order to be eligible to be enforced under the revised Brussels Regulation it is a requirement that a court has jurisdiction as to the subject-matter of the proceedings.

The recent judgment by the Rotterdam court is a provisional measure as in Article 2 revised Brussels Regulation, provided the judgement will be served upon the debtor prior to enforcement. The judgment was accompanied by a certificate as in Article 53 revised Brussels Regulation certifying that the judgment is enforceable, which means the local competent authorities responsible for arrests in Germany and Austria will have to enforce the decision to grant leave for a pre-judgment arrest of the vessel, provided all other formalities of the Regulation are observed. No local German or Austrian court will have to grant a leave to enforce (exequatur) under the revised Brussels Regulation.

Under the former Brussels Regulation[6], enforcement of ‘ex parte’ provisional measures[7] in another Member State than that of the courts ordering the measures did not fall within the scope of Chapter III Brussels Regulation in accordance with case law from the European Court of Justice (Denilauler/Couchet).[8]  Enforcement under the former Brussels Regulation of said measures was therefore impossible. The revised Brussels Regulation now allows the enforcement of ‘ex parte’ measures in other Member States, provided the court issuing the measure has jurisdiction as to the subject-matter of the proceedings and provided the measure is served upon the defendant prior to enforcement.

In Dutch law, it had long been an accepted principle that the scope of an attachment or garnishee order could not be extended to assets or garnishees located outside the Netherlands. It seems that, within a European context, this general principle has not only lost its validity at the level of EU Law but also at the Dutch national court level. If other Dutch courts will follow suit, this would mean that the Dutch arrest and attachment friendly jurisdiction will now potentially reach the complete EU. 

Sebastiaan H. Barten

Attorney-at-law at Van Steenderen MainportLawyers

Rotterdam, the Netherlands 

[1] Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ 2012, L 351/1 (revised Brussels Regulation).

[2] The Netherlands is a party to the International Convention relating to the arrest of seagoing ships, signed at Brussels, on May 10, 1952 (“Arrest Convention 1952”). Article 4 Arrest Convention 1952 clearly determines that a ship may only be arrested under the authority of a Court or of the appropriate judicial authority of the Contracting State in which the arrest is made. With regard to vessels flying the flag of a Contracting State, the Dutch courts will therefore only have jurisdiction where the arrest will be made in Dutch ports or in Dutch territorial waters.

[3] Recently the undersigned co-authored an article in the Dutch language about the possibilities the revised Brussels Regulations may offer to creditors who whish to obtain a Dutch garnishee order to garnishees located in other EU Member States. See S.H. Barten & B.J. van het Kaar, ‘‘Grensverleggend’ derdenbeslag: over de reikwijdte van een Nederlands beslagverlof onder de Herschikking Brussel I’ (forthcoming in NIPR 2015/2). An abstract of the forthcoming article in English can be found here.

[4] Court of Rotterdam, 12 March 2015, ECLI:NL:RBROT:2015:3395.

[5] Owners claimed that the charterer had not paid hire and Owners whished to repossess the barge. 

[6] Council Regulation (EC) No 44/2001 of 22 December 2000 on  jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ C 218, 23.7.2011, p. 78.

[7] Measures without the defendant being summoned to appear.

[8] Case C-125/79, Bernard Denilauler v SNC Couchet Frères, ECLI:EU:C:1980:130.