Direct execution of judgments and what to do about it

Main rule: no direct execution of a judgment

In the Dutch legal system, the main rule is that a judgment can and may only be executed (i.e., enforced) by the party for whose benefit the judgment was rendered (hereinafter also referred to as "the executor") if no further legal remedy (such as appeal) is available.

Therefore, if a party is ordered at first instance to pay €100,000.00, it does not have to pay this amount until after the three-month appeal period has expired and no appeal has been filed. This is called "suspensive effect of appeal."

Thus, in principle, the party in whose favor a judgment has been obtained may not immediately execute, but must await any appeal. This is advantageous for the party convicted, but annoying for the one who has obtained a judgment.

Now, can you still ensure that a judgment can be executed immediately, even if it is appealed? Yes, you can.

Exception: declaration of enforceability

To prevent a first-instance judgment from being executed while proceedings are not finally settled - sometimes appeals take years - the plaintiff can request that a judgment be declared "provisionally enforceable."

This means that the party sentenced in the proceedings must immediately comply with the judgment (read: generally pay). The condition is that the judgment is served by the bailiff.

Thus, in the aforementioned example, the condemning party must immediately pay €100,000.00 to the executor if it requests it, even if the appeal period has not yet expired and even if an appeal has been filed.

Risks

Having to comply directly with a judgment, however, sometimes carries significant risks.

For example, the executor to whom payment is made may go bankrupt after payment is made or may have no recourse if the appeal is won. Then, in principle, you as the executor are left empty-handed even if you win on appeal.

So it makes sense for a (pretend) debtor not only to oppose the assignment of a claim for payment of a sum of money, but also to oppose the declaration of enforceability of any judgment in order to avoid having to pay immediately.

What to do about a judgment declared enforceable?

Unfortunately, in practice, I see too often that while defenses are raised against the granting of a claim, they are not raised against the declaration of enforceability.

As explained above, merely filing an appeal then does not help. The executor may, despite that appeal, seize assets of the person against whom a judgment has been rendered, for example.

Can this person then do nothing at all?

Yep, he has to appeal AND via a separate interlocutory appeal or via an incident in the appeal proceedings, ask the court to suspend the enforcement of the first instance judgment until a judgment is rendered on appeal.

If the stay request is granted, the executor must wait to execute the judgment until the appeal is decided.

When does the court grant a request for suspension of enforcement?

Until recently, suspension of enforcement through summary proceedings was only granted if there was an abuse of (enforcement) power by the enforcer.

This is a very tough test that is not easily met.

This could occur, for example, if the judgment to be enforced was based on a manifest error of law or fact, or if, after the judgment was rendered, facts came to light that created a state of emergency for the person against whom a judgment was rendered so that direct enforcement would be unacceptable.

In late 2019, however, the Supreme Court issued a ruling that significantly increased the likelihood of granting the claim for suspension of enforcement through summary judgment.

The Supreme Court aligned the criterion with the criterion that applies when suspension of enforcement is requested through an incident and the court at first instance did not give reasons why it arrived at a declaration of provisional enforcement.

From now on - very briefly - an ordinary (equivalent) balancing of interests applies, whereas until recently a request for suspension only succeeded if there was a disproportionality.

The foregoing means that there is significantly more room for a successful application for a stay of execution through an enforcement summary proceeding.

Conclusion: opposition to enforcement by either interlocutory or incidental proceedings

With the Supreme Court's ruling, a convicted party has a better chance of successfully opposing enforcement of a judgment declared provisionally enforceable. That is a judgment that may be enforced immediately, even if an appeal has been filed or the appeal period has not yet expired.

The sentencing party can successfully oppose this direct enforcement through an incident in the appeal process or through a separate interlocutory appeal.

In both cases, the same standard applies, namely an ordinary, equal consideration between the interests of the executor, on the one hand, and the interests of the executed, on the other.

A prerequisite is that the court at first instance did not give reasons why it came to a declaration of enforceability.

If the court at first instance did give reasons why the judgment at first instance was declared provisionally enforceable, the heavier standard of disproportionality and abuse of rights applies. This will not happen quickly.