Conservatory Attachment in Belgium: Freezing Your Debtor's Assets Before Judgment

Obtaining a judgment takes months. In the meantime, your debtor can empty their bank accounts, sell their car or transfer their business. A conservatory attachment exists precisely to prevent this: you make your debtor’s assets unavailable before any decision on the merits. It is a powerful tool, but it is subject to strict conditions and is not without risk.

This article explains when a conservatory attachment is possible in Belgium, how the procedure works and how to defend yourself if your own assets have been attached.

What is a conservatory attachment?

A conservatory attachment (bewarend beslag / saisie conservatoire) makes your debtor’s goods or funds unavailable. They remain the debtor’s property, but the debtor can no longer freely dispose of them. Nothing is sold yet and you are not yet paid: the attachment freezes the situation until you obtain an enforceable title.

Attachment is possible on movable property, on immovable property and on claims your debtor holds against third parties, such as bank balances, salary or rent received. In the latter case, we speak of a third-party attachment or garnishment (beslag onder derden / saisie-arrêt).

First condition: urgency

A conservatory attachment is only possible in urgent cases (Article 1413 of the Judicial Code, Gerechtelijk Wetboek / Code judiciaire). There is urgency when the later recovery of your claim is at risk, for example because your debtor’s solvency is objectively deteriorating or because they are moving assets out of reach. This urgency must exist at the time of the application and still exist when the attachment is later reviewed. A creditor who sits still for months and then suddenly pleads urgency has little chance of success.

Second condition: a claim that is certain, due and liquid

The claim must be certain and due, and liquid or capable of provisional estimation (Article 1415). The attachment judge (beslagrechter / juge des saisies) does not decide the dispute on the merits. The judge checks whether your claim appears, at first sight, sufficiently serious. A claim that is seriously disputed is therefore unlikely to support an attachment.

If your invoice was protested in time, your claim is less clear-cut. To find out how the court assesses this, read our article on disputed invoices.

The conservatory attachment procedure: an ex parte application

As a rule, your lawyer files an ex parte application (eenzijdig verzoekschrift / requête unilatérale) with the attachment judge of the court of first instance (Articles 1417 et seq.). Your debtor is not heard beforehand: the element of surprise is the very essence of the measure. If the judge grants leave, a bailiff (gerechtsdeurwaarder / huissier de justice) carries out the attachment.

In the case of a third-party attachment, the bailiff also gives formal notice of it to your debtor within eight days of its receipt by the garnishee (Article 1457). The attached debtor can then challenge the attachment before the attachment judge.

What should the application contain?

An application that is granted quickly is concrete and well documented. It contains:

• a clear account of the facts and of the claim, with supporting documents: contract, invoices, correspondence, acknowledgements of debt;
• the calculation of the amount for which the attachment is sought;
• concrete signs of urgency, such as a sale of assets, a move abroad, successive attachments or a deteriorating financial situation;
• the goods or funds to be attached, for example a bank account or a vehicle.

When do you not need the court’s leave?

• With a judgment: any judgment, even one that is not yet enforceable, serves as authorisation for a conservatory attachment for the amount awarded (Article 1414).
• Third-party attachment based on a title: a creditor holding an authentic or private title can make a conservatory third-party attachment without prior leave (Article 1445), for example with the debtor’s bank.

Even then, the conditions of urgency and of a certain, due and liquid claim generally apply, and the attached debtor can have the attachment reviewed by the attachment judge.

Third-party attachment: what does the bank or employer do?

From that moment, the third party with whom the attachment is made, for example your debtor’s bank or employer, may no longer pay the debtor what falls under the attachment. The third party must declare within fifteen days what it owes the debtor (Article 1452). This declaration immediately shows you whether the attachment has produced results.

Not everything can be frozen. Salary, replacement income and certain benefits are wholly or partly exempt from attachment (Articles 1409 et seq.).

How long does the attachment remain valid?

A conservatory attachment in principle remains valid for three years (Article 1425). On a timely application, the attachment judge can renew it.

Meanwhile, you bring proceedings on the merits to obtain an enforceable title. With that title, the conservatory attachment can be converted into an enforcement attachment, and you can be paid. More on enforcement attachment.

What does it cost and what are the risks?

Besides the bailiff’s costs and your lawyer’s fees, you bear a risk. If the attachment was made recklessly, without serious grounds or out of proportion to your claim, you may be liable for the damage your debtor suffered as a result. The mere fact that the attachment is later lifted does not in itself mean that you were at fault. A thorough prior analysis is therefore no luxury.

Debtor in another EU member state?

If your debtor holds bank accounts in another member state of the European Union, you can use the European Account Preservation Order (Regulation (EU) No 655/2014). It allows funds in another member state to be frozen, under conditions comparable to those of the Belgian conservatory attachment. Denmark does not take part in this scheme. More on cross-border debt recovery.

Have your assets been attached?

The attached debtor also has rights. If there was no urgency, if the claim is open to dispute or if the attachment is too broad, it can be challenged before the attachment judge. An order made on an ex parte application is open to third-party opposition (derdenverzet / tierce opposition); if circumstances change, you can also ask for the order to be amended or withdrawn (Article 1419).

By depositing a sum that covers the claim (kantonnement / cantonnement, Articles 1403 et seq.), you can generally obtain the release of the attachment on your other assets. Acting quickly is essential: a frozen bank account can paralyse a business within a short time.

Frequently asked questions

Can I attach my debtor’s bank account?

Yes, through a conservatory third-party attachment at the debtor’s bank. The balance at the time of the attachment is frozen, subject to the statutory rules protecting amounts that are exempt from attachment.

My debtor is a company about to disappear. Will this help?

That is exactly the scenario the measure is designed for. Speed is then decisive. If the company goes bankrupt in the meantime, you file your claim with the bankruptcy trustee (curator / curateur): read how to file your claim as a creditor.

Do I still need to bring proceedings afterwards?

Yes. The conservatory attachment does not pay you; it ensures there is still something to recover once you have your title. For undisputed debts between businesses, the IOS procedure for undisputed debts can produce that title quickly.

How quickly can a conservatory attachment be made?

Because your debtor is not heard and there is no adversarial hearing, the attachment judge can decide at short notice. The more complete your file, the faster leave is granted. With a judgment or, for a third-party attachment, with a title, the bailiff can even act without prior leave.

Novex Advocaten: your conservatory attachment lawyer in Brussels

Worried that your debtor is moving assets out of reach? We quickly assess whether an application for a conservatory attachment makes sense and instruct the bailiff. If your assets have been attached, we immediately examine whether the attachment can be challenged. We also assist you with the next steps in recovering unpaid invoices.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.