Attachment Proceedings: Concept, Legal Basis and Procedure
The attachment procedure is a special process in German civil procedure law designed for the provisional securing of claims. Its purpose is to prevent the imminent frustration or significant hindrance of the enforcement of a claim by means of a rapid, summary procedure. The attachment procedure is primarily governed by Book Seven of the Code of Civil Procedure (ZPO), notably §§ 916 et seq. ZPO. It applies both to the securing of monetary claims and claims for the surrender of specific items and is fundamentally designed as a form of preliminary legal protection.
Scope of Application of the Attachment Procedure
The attachment procedure is a security instrument that is applied within the framework of provisional legal protection. It typically serves to secure monetary claims (the so-called proprietary attachment, § 916 ZPO) as well as claims for the surrender of movable goods or real estate (the so-called personal attachment, § 918 ZPO). The requirements and effects differ depending on the type of attachment.
Legal Basis
Code of Civil Procedure (ZPO)
The main legal basis for the attachment procedure is the Code of Civil Procedure (ZPO), in particular §§ 916 et seq. The provisions regulate application requirements, jurisdiction, implementation, and legal remedies.
§ 916 ZPO – Definition of Attachment
Attachment is a measure designed to secure future enforcement rights. It is ordered to secure enforcement for monetary claims (proprietary attachment) or to secure enforcement for the surrender of an item (personal attachment).
§ 917 ZPO – Grounds for Attachment
The applicant must make it credible that without the attachment, enforcement of the claim would be frustrated or substantially hindered (ground for attachment). This regularly involves presenting constellations in which, for example, asset transfers, flight, or other detriments are imminent.
§ 918 ZPO – Types of Attachment
- Proprietary Attachment: Secures later enforcement of a monetary claim. Through proprietary attachment, for example, bank accounts may be frozen or real estate provisionally secured.
- Personal Attachment: The aim is to detain a person in order, for example, to prevent them from evading enforcement. However, this type of attachment is now only applied in exceptional cases due to the principle of proportionality and is particularly restricted by constitutional requirements.
Requirements for Attachment
Attachment Claim
A prerequisite for the issuance of an attachment order is first the existence of a substantive claim to be secured. The attachment claim generally concerns claims for payment, the surrender of certain items, or, in rare cases, the securing of other substantive legal claims.
Grounds for Attachment
In addition, the ground for attachment must be present, i.e., there must be a risk that without the attachment measure, subsequent enforcement would be frustrated or substantially hindered (§ 917 (2) ZPO). The applicant must present and make credible facts that establish this risk. Simple presentation is insufficient; instead, a substantiated statement of facts is required, which in urgent cases can also be made by statutory declaration in lieu of oath (§ 294 ZPO).
Credible Evidence
There is no comprehensive taking of evidence in attachment proceedings. It is sufficient to provide credible evidence according to § 294 ZPO. Means of proof are especially statutory declarations, documents, information, and witness statements within the context of credible evidence.
The Judicial Attachment Procedure
Filing an Application
Attachment proceedings are initiated by an application for attachment. The application may be submitted to any court that is competent in substance and locality; this is regularly the court competent for the main action or the district court at the location of the item to be secured.
Proceedings Without Oral Hearing
The court usually decides on the application for attachment without an oral hearing (§ 922 (1) ZPO). In particularly urgent cases, a decision may even be made without prior hearing of the respondent (so-called ex parte proceedings). Nevertheless, the court may order an oral hearing or set a date for discussing the facts.
Attachment Order
The outcome of the attachment proceeding is the attachment order. The attachment order is a court decision which allows the applicant to implement the requested security measure. It must precisely determine the content and scope of the security and include information on legal remedies.
Enforcement of the Attachment
The attachment order is only valid for a limited period of time (§ 929 (2) ZPO). Enforcement must take place within one month after service of the attachment order on the applicant, i.e., the actual security measure must be implemented (e.g., by seizure, entry of security mortgages, or confiscation of the item).
Legal Remedies and Legal Protection in Attachment Proceedings
Objection and Immediate Appeal
If the attachment order is issued without an oral hearing, the respondent has the right to lodge an objection (§ 924 ZPO). This leads to an oral hearing. In addition, both parties under certain circumstances have the right to file an immediate appeal (§ 793 ZPO, § 567 ZPO).
Claims for Damages
If the attachment order subsequently turns out to be unjustified or the secured claim did not arise, the applicant is liable under § 945 ZPO for damages caused by the enforcement of the attachment. This results in a special responsibility for the submission of the application and conduct of the proceedings.
Attachment Sum and Security Deposit
The court may require the applicant to provide a security deposit (§ 921 ZPO) in order to cover any loss the respondent may incur in the event the attachment is lifted.
Attachment Procedure in an International Context
European and International Conventions
The attachment procedure can also be applied in international legal transactions, especially in cross-border cases and for claims against debtors with assets abroad. European regulations as well as international agreements, such as the Brussels Convention, apply depending on the individual case, and national and supranational rules must be coordinated.
Relationship to Other Provisional Measures
The attachment procedure must be distinguished from the preliminary injunction (§§ 935 et seq. ZPO). Whereas attachment is generally intended to secure claims for payment or delivery, the preliminary injunction primarily regulates provisional legal protection for other claims or to establish a certain state of affairs.
Significance of Attachment Proceedings in Practice
The attachment procedure plays a central role in providing effective legal protection. It offers prompt and efficient protection against the frustration of rights and allows creditors to secure their legal position until the main proceedings can be conducted. At the same time, it is subject to strict requirements and procedural controls to protect the debtor.
Literature and Further Information
Code of Civil Procedure (ZPO), §§ 916-945 Palandt: German Civil Code Thomas/Putzo: Code of Civil Procedure Musielak/Voit: Code of Civil Procedure
* Munich Commentary on the ZPO, Volume 3
The above article provides a comprehensive overview of the concept, requirements, procedure, legal consequences, and international aspects of attachment proceedings. For those involved in civil disputes, the attachment procedure remains an indispensable instrument of effective legal protection in cases of imminent frustration of claims.
Frequently Asked Questions
When are attachment proceedings permissible?
Attachment proceedings are generally permissible if both a ground for attachment and an attachment claim exist. A ground for attachment is present if there is reason to suspect that without the attachment order the enforcement of a future judgment would be frustrated or substantially hindered. This may be the case, for example, if the debtor threatens to dispose of assets or move them abroad. The attachment claim, in turn, represents the substantive legal position on the basis of which the creditor seeks security—such as a monetary claim. Attachment is possible within the framework of both private-law and public-law claims. The legal basis for this can be found in §§ 916 et seq. of the Code of Civil Procedure (ZPO). For specific types of attachment, such as proprietary attachment, the law requires different conditions. Already in the application proceedings, the facts establishing the claim and the grounds for attachment must be substantiated, for which, for example, statutory declarations, documents, or witness statements may be used.
How does the attachment procedure work and which court has jurisdiction?
The attachment procedure is initiated by an application for attachment, which must be filed with the court competent both in subject matter and locality. In principle, the court competent for the main proceedings has jurisdiction, alternatively the district court at the place where the item to be attached is located or where enforcement is to take place (§ 919 ZPO). The procedure is structured as a summary emergency procedure: it is usually conducted without an oral hearing and often without hearing the opponent, especially where there is a risk that the purpose of the attachment might otherwise be thwarted (§ 922 (1) ZPO – proceedings for an attachment order by way of interim injunction). The court examines the facts presented only summarily and requires credible evidence of their existence, not full proof. The attachment order is then enforced by service and, if necessary, by direct access to the debtor’s assets (e.g., account garnishment, seizure of items). The debtor may contest the order via the objection procedure, in which the matter is subjected to a more detailed review.
What legal remedies are available in the attachment procedure?
In attachment proceedings, both the applicant and the respondent have access to various legal remedies. If the attachment was ordered without an oral hearing, the respondent may file an objection within two weeks of service of the attachment order (§ 924 ZPO). In objection proceedings, the matter is decided with input from both parties. Furthermore, an immediate appeal may be lodged against the attachment order, but only against the decision on the application for attachment, not against orders of a purely enforcement nature (§ 793 ZPO). The applicant, in turn, may submit an immediate appeal in accordance with § 567 ZPO if his application for attachment is denied. Against negative orders in the objection proceedings, a legal complaint (Rechtsbeschwerde) according to §§ 574 et seq. ZPO is possible, provided the relevant criteria for admissibility are met.
How is the attachment order enforced and what deadlines must be observed?
The enforcement of the attachment is a mandatory prerequisite for the attachment to become effective. Enforcement regularly takes place through seizure or confiscation of relevant items and, if no special deadlines are specified, must occur within one month after service of the attachment order on the applicant (§ 929 (2) ZPO). If enforcement is not carried out in due time, the attachment order loses its effectiveness. The enforcement deadline may in individual cases be extended by the court, but this possibility is not unlimited and is generally interpreted restrictively. Service on the debtor alone does not suffice for enforcement; an enforcement act is always required. If the deadline is missed, an attachment which may have arisen in the meantime can no longer be enforced, and a new application is necessary.
What is the significance of credible evidence in attachment proceedings?
Providing credible evidence plays a central role in the attachment procedure and constitutes an independent standard of proof lying between ‘mere assertion’ and ‘full proof’. Here, the applicant must support the alleged facts regarding the grounds and claim for attachment with means that convince the court of the probability of the statements. Typical means include statutory declarations, written statements, documents, but also witness statements. Strict proof by witness examination or expert opinion, however, is fundamentally not required in the summary attachment procedure. The court examines whether it is more likely than not that both the asserted claim and the ground for attachment exist. In particular, in situations requiring swift action and where main proceedings would undermine the purpose of security, providing credible evidence is essential for the efficient and legally sound conduct of the procedure.
What costs may arise in connection with attachment proceedings?
Attachment proceedings incur court costs as well as potential extrajudicial costs, especially for legal representation. The amount of court costs is based on the value of the claim to be secured and is determined by the Court Costs Act (GKG). Additional costs for the enforcement of the attachment may arise, such as fees for bailiffs, service of documents, and any security deposit if the court makes the attachment conditional on one (§ 921 ZPO). If the claim to be secured is subsequently found to be unfounded or the creditor withdraws the application for attachment, the creditor is liable to the opponent for any damages and costs caused by the attachment proceedings (§ 945 ZPO). Any costs from objection or appeal proceedings are also to be borne by the unsuccessful party.
What happens to the main proceedings after an attachment order has been issued?
Attachment only serves as provisional security and does not interfere with the main proceedings. The creditor is generally required, after the issue of an attachment order, to file the main claim if this is not already pending. The court sets a period for bringing the main action depending on the circumstances of the case (§ 926 (1) ZPO). If the creditor does not comply, the debtor may apply for the attachment to be lifted. If the main proceedings determine that the asserted claim does not exist or that there were no grounds for attachment, the attachment must be revoked, and the creditor may have to pay damages if the debtor suffered a loss as a result of the attachment (§ 945 ZPO). The binding effect of the attachment proceedings is strictly limited to the need for security and not to the substantive judgment in the main action.
