This case involved an attachment in the Rotterdam port by NIS Oil Industry of Serbia/NIS Jugopetrol (NIS), directed against SNP Petrom SA (Petrom), of the Histria Topaz, a ship flying the Romanian flag which was owned by Petrom and bareboat chartered by Petrom to SC Histria Shipmanagement SrL (Histria). The attachments were aimed at recovering NIS's claim of USD 25 million against Petrom, which had been ordered to pay this amount in three arbitration awards. Leave for enforcement (exequatur) of the awards has already been granted in France and England.

The first attachment was a conservatory attachment to found jurisdiction (saisie foraine) effected on 2 November 2005. In injunction proceedings on 3 November 2005, Histria obtained a Court order for the lifting of the attachment on the grounds that under art 2 of the Arrest Convention 1952 an arrest of a ship flying the flag of a contracting State (here, Romania) within the jurisdiction of another contracting State (here, the Netherlands) was only permitted for a maritime claim under the Convention, which NIS's claim was not.

To prevent the escape of the Histria Topaz as an object for recourse, NIS applied under arts 38 ff of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Regulation) for decisions to allow the enforcement in the Netherlands of the French and English exequatur decisions and to be allowed to effect an attachment in execution. Both applications were allowed on 3 November 2005, except that the enforcement was linked to the French exequatur decision.

On the same day, NIS effected an attachment in execution on the Histria Topaz. In injunction proceedings, Petrom demanded the lifting of this attachment, but without success (judgment of 24 November 2005). On 2 December 2005, Petrom lodged the appeal referred to in art 41 of the Regulation against the decision allowing the enforcement of the French exequatur decision. On 13-14 December 2005, Petrom paid NIS the amount awarded under the arbitration awards, after which the attachment effected on 3 November 2005 was lifted. Because of that payment, NIS's application for a decision to allow the enforcement in the Netherlands of the arbitral awards was denied, although the Court stated that there were no formal grounds to disallow their recognition, and ordered Petrom to pay costs. The case at hand is Petrom's appeal against the judgment of 24 November 2005.

Held: The attachment of 3 November 2005, which Petrom unsuccessfully demanded to be lifted, was effected on the basis of art 47.2 of the Regulation. According to that provision, the declaration of enforceability which the injunction Judge granted on 3 November 2005 in respect of the French exequatur decision carried with it the power to proceed to any protective measures. That power to effect a conservatory attachment on the basis of a declaration of enforceability is 'automatically and unconditional' (Palsson in Magnus/Mankowski, Brussels I Regulation (2007), p 678) and continues to exist until a decision has been given on the appeal against the decision to allow the enforcement. Therefore one cannot challenge an attachment effected on the basis of arts 47.2 and 47.3 of the Regulation in injunction proceedings in the same manner as (proscribed in art 705 of the Dutch Code of Civil Procedure (DCCP)) against a conservatory attachment under art 700 of the DCCP. Doing otherwise would intervene in the power autonomously granted by the Regulation to proceed to protective measures during the period between lodging the appeal and the decision thereon. The judge in injunction proceedings may, however, be allowed to decide on issues of lawfulness of the attachment when for instance the attachment is effected on property not owned by the debtor, or on property which may not be attached, as the Regulation does not affect the national law on attachments. When determining the lawfulness and regularity of an attachment based on the Regulation, the sound operation of the provisions of the Regulation must be kept in mind. Where Petrom disputes the lawfulness of the attachment in question on the ground that the decision of enforceability should not have been given, it addresses an issue which must be decided by the District Court in the course of the appeal proceedings under art 43 of the Regulation.

The Arrest Convention 1952 does not call for the lifting of the attachment either. The Arrest Convention 1952 is a Convention on a particular matter in relation to the Regulation. The Convention will therefore take precedence over the Regulation. According to art 2 of the Convention, a conservatory arrest may be effected for a maritime claim. The aim of the Convention is to prevent ships from being arrested for all kinds of claims, the validity of which has not yet been determined. In line with this, art 1.2 of the Arrest Convention 1952 states that 'arrest' within the meaning of the Convention does 'not include the seizure of a ship in execution or satisfaction of a judgment'. The question is whether effecting a conservatory attachment under art 47 of the Regulation falls under this exception.

When a declaration of enforceability is applied for in one Regulation State in respect of a decision of a court of another Regulation State, an attachment in execution may be effected upon the granting of the declaration of enforceability. Prior to applying for the declaration of enforceability a conservatory attachment may be effected on the debtor's property in accordance with the law of the State requested (art 47.1 of the Regulation). If it would involve a non-maritime claim, such a conservatory attachment would seem to be at odds with the Arrest Convention 1952. However, when a declaration of enforceability has already been granted, as in this case, an attachment may be effected on the basis of art 47.2 of the Regulation. A party effecting an attachment on the basis of art 47.2 of the Regulation has obtained a declaration of enforceability on a foreign enforceable judgment. That attachment therefore falls under the exception referred to in art 1.2 of the Arrest Convention 1952.