Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter E.14: European Account Preservation Order Regulation

Jan von Hein

I. Background and context

1. The unsatisfactory situation of creditors under the Brussels I Regulation (recast)

An attachment of bank accounts with cross-border effects in today’s EU was in principle already available under the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1). Pursuant to art 24 of this Convention, which later became art 31 Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1; now art 35 Brussels I Regulation (recast) (Regulation (EU) No 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), [2012] OJ L 351/1); →Brussels I (Convention and Regulation)), a creditor had the right to apply for a provisional, including protective, measure available under the law of the Member State to which this application was addressed, even if the courts of another state had jurisdiction for the merits of the case. Nevertheless, the legal situation under the former Brussels Convention was unsatisfactory from the perspective of creditors, because freezing orders flowing from ex parte procedures would not be recognized in other Member States following the Denilauler decision of the ECJ (Case 125/79 Denilauler v Couchet Frères [1980] ECR 1553), a judgment which was considered as still being good law under the Brussels I Regulation (see, eg, German Federal Court of Justice (BGH) 21 December 2006, [2007] WM 373 = [2007] LMK 212640 with a critical note by Geimer). As a result, any surprise effect of an p. 682attachment order was lost, and the forewarned debtor was frequently able to transfer his money swiftly to another Member State (→Money and currency). Although creditors could avail themselves of ex parte procedures under the domestic law of the Member State where a bank account was situated, such an option had considerable disadvantages: in particular, it forced creditors to pursue a piecemeal attachment strategy that was both time-consuming and costly in cases where the simultaneous attachment of several accounts located in more than one Member State was sought. The recast of the Brussels I Regulation, which came into effect on 10 January 2015 and which abolished the former requirement of a declaration of enforceability (‘exequatur’), did not significantly improve the situation. Whereas the Commission had proposed legally defining enforceable ‘judgments’ as including ‘measures ordered without the defendant being summoned to appear and which are intended to be enforced without prior service of the defendant if the defendant has the right to challenge the measure subsequently under the national law of the Member State of origin’ (art 2(a) subpara 2, 2nd sentence of the Proposal of 14 December 2010 for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), COM(2010) 748 final), the final Brussels I Regulation (recast) prefers a more cautious, debtor-friendly approach: pursuant to art 2(a) subpara 2, 2nd sentence Brussels I Regulation (recast), the notion of an enforceable judgment ‘does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement’. By requiring the prior service of an attachment order as a condition for its cross-border enforcement, the Brussels I Regulation (recast) still makes it almost impossible for the creditor to use the surprise effect of such a protective measure. Recital (33), 3rd sentence clarifies that a creditor still has the option of applying for the cross-border enforcement of a measure granted ex parte under the national law of the Member State addressed. Such a recourse to domestic laws, however, could hardly be characterized as a fully convincing solution to a genuinely European problem. This unsatisfactory situation deprived a large number of creditors, especially small and middle-sized → companies and consumers, from securing cross-border debts effectively, which in turn weakened the economic activity in the Internal Market. Apart from the absence of a European Regulation allowing for a cross-border enforcement of ex parte freezing orders, other shortcomings in the legislative framework before 2014 concerned the varying conditions for issuing preservation orders throughout the EU, the difficulty or rather impossibility for the creditor to obtain reliable information about the whereabouts of his debtor’s assets, and the costs as well as the duration of cross-border enforcement procedures because of differences in national enforcement systems. The recently enacted EAPO Regulation (Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters, [2014] OJ L 189/59), seeks to create a more efficient and effective framework for the cross-border attachment of bank accounts in the EU. Article 11 EAPO Regulation makes very clear that the debtor may not be notified of the application for an EAPO or be heard prior to the issuing of such an order. Since creditors may not be unduly favoured at the expense of debtors, it is, however, necessary to balance the EU-wide effect of a European attachment order by strongly protecting the debtor (see III.1. below on the conditions for the issuance of an EAPO and III.3. below on the debtor’s remedies).

2. The genesis of the EAPO Regulation

Although the law of enforcement as such has to date been excluded from Acts adopted by the European legislature, the first reference to protective orders enabling competent authorities to seize easily movable assets was already made in the context of the fundamental principle of mutual recognition of judgments as debated by the European Council at its meeting in Tampere on 15 and 16 October 1999. The Programme of Measures in order to implement this principle, which was adopted by the Commission and the Council on 30 November 2000, envisaged the creation of protective measures at the European level, such as initiating a European system of bank account attachment orders. After an elaborate comparative report on the laws of the Member States had been presented by a team of authors under the direction of Burkhard Hess, p. 683the Commission published, in October 2006, the ‘Green Paper of 24 October 2006 on Improving the Efficiency of the Enforcement of Judgments in the European Union: The Attachment of Bank Accounts’ (COM(2006) 618 final). This document was an important step towards the creation of a European Area of Justice where the free movement of judgments is accompanied by swift procedures for cross-border enforcement; it launched a broad process of consultation among interested parties, both from legal practice and from academia. The Stockholm Programme of 2009 invited the Commission to put forward proposals for improving the efficiency of enforcement of judgments in the Union regarding bank accounts and debtors’ assets. In the framework of the Europe 2020 Strategy for Growth, the Commission presented its Proposal for a Regulation for the European Account Preservation Order (European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council Creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters’ COM(2011) 445 final, in the following EAPO Proposal) in 2011. The final Regulation was passed on 15 May 2014.

II. Scope and structure

1. Scope

The EAPO Regulation (art 1(1)) creates a largely autonomous European procedure, enabling a creditor to obtain an EAPO ‘which prevents the subsequent enforcement of the creditor’s claim from being jeopardised through the transfer or withdrawal of funds up to the amount specified in the Order which are held by the debtor or on his behalf in a bank account maintained in a Member State’. Like other EU regulations on civil procedure of the ‘second generation’ (ie Enforcement Order for Uncontested Claims, Order for Payment Procedure, Small Claims), the EAPO Regulation has an optional character (art 1(2)), in that it merely provides an additional alternative to creditors, who are free to apply for protective measures available under national law instead of an EAPO. The cross-border enforcement of such national protective measures remains subject to the Brussels I Regulation (recast), with the drawbacks already described (see I.1. above). In accordance with art 46, all procedural issues not specifically dealt with in the Regulation are to be governed by the national law of the respective forum.

The EAPO Regulation’s substantive scope is defined in art 2, which is modelled on art 1 of the Brussels I Regulation (recast), in that the EAPO Regulation only applies in civil and commercial matters (art 2(1)); specific matters – matrimonial and similar relationships, wills and succession, insolvency, social security and arbitration – remain expressly excluded (art 2(2) EAPO Regulation), but certain differences require brief comment. Contrary to Brussels I (recast), the EAPO Regulation solely applies to claims of a pecuniary nature (art 2(1)); accordingly, claims to perform a specific action or to refrain from doing certain things cannot be secured by way of an EAPO. In light of the limitation of the EAPO Regulation’s scope to pecuniary claims, an explicit exclusion of matters relating to the status or legal capacity (→Capacity and emancipation) of natural persons (see art 1(2)(a) Brussels I (recast)) was evidently considered as superfluous. Contrary to art 1(2)(e) Brussels I (recast), →maintenance obligations arising from a family relationship are not excluded from the scope of the EAPO Regulation, except for those maintenance obligations arising by reason of death (art 2(2)(b) EAPO Regulation). Specific exclusions concern accounts related to payment and securities settlement systems (art 2(3) EAPO Regulation), as well as accounts held by or with central banks (art 2(4) EAPO Regulation); in both cases, overriding interests in the functioning of the financial system demand that an individual creditor’s interest in attaching such an account must be neglected. Article 4 contains the basic definitions of what is meant by an account, a bank or a creditor within the meaning of the Regulation.

The EAPO Regulation is in force in all Member States except for the →United Kingdom and →Denmark. Unlike →Ireland, the UK decided not to opt into the EAPO Regulation because this legal instrument was perceived as being tilted too heavily in favour of creditors to the detriment of an adequate degree of protection accorded to debtors. The Regulation’s spatial scope is restricted to cross-border cases, a legal concept which, as already done in the European →Payment Order Regulation (Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, [2006] OJ L 399/1) and the European Small Claims Procedure Regulation (Regulation (EC) No 861/2007 of the European Parliament and of the p. 684Council of 11 July 2007 establishing a European Small Claims Procedure, [2007] OJ L 199/1), is defined in art 3 EAPO Regulation. A case has a necessary cross-border element if there is a divergence between the participating Member State where the bank account in question is being maintained and either the participating Member State of the court seised of the application for an attachment of this account (art 3(1)(a)), or the participating Member State in which the creditor is domiciled in accordance with arts 62 and 63 Brussels I (recast) (art 3(1)(b) in conjunction with art 4 no 15 EAPO Regulation). If a creditor wants to apply both for an attachment of an account maintained in the Member State of his domicile and of an account maintained in another Member State, two proceedings must be initiated, one under domestic law and one under the EAPO Regulation (see Recital (10)). As art 4 no 6 in conjunction with rec. 48 EAPO Regulation makes clear, only creditors domiciled in a participating Member State may apply for an EAPO, whereas this procedure is not available to creditors domiciled in third states. Creditors domiciled in the UK or →Switzerland, for example, will have to content themselves with the cumbersome procedure available under art 35 Brussels I (recast) or art 31 of the →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3). With regard to the debtor, however, domicile in a Member State is not a necessary condition for the issuance of an EAPO (art 4 no 7 EAPO Regulation); instead, it is considered sufficient that a debtor has the legal capacity to sue or be sued ‘under the law of a Member State’ (which is arguably to be understood as encompassing a Member State’s choice-of-law rules on capacity (→Capacity and emancipation)), ie that accounts maintained in a participating Member State by British or Swiss debtors will be amenable to being frozen under the EAPO Regulation. It remains to be seen whether this dubious discrimination against third-state creditors will be remedied in the future, perhaps in a ‘Lugano III’ Convention.

With regard to its intertemporal scope, the EAPO Regulation will apply from 18 January 2017 (art 54).

2. Structure

The EAPO Regulation is divided into six chapters. Chapter 1 (arts 1–4) deals with aspects concerning the Regulation’s subject matter, its scope and the definition of key terms (see II.1. above). Chapter 2 consists of arts 5–21 which govern the procedure for obtaining a preservation order. The recognition, enforceability and enforcement of the preservation order are regulated in Chapter 3 (arts 22–32). Rules on remedies against the preservation order or its enforcement are found in Chapter 4 (arts 33–39). Chapter 5 (arts 40–53) assembles various ‘general provisions’ on costs, fees, legal representation, data protection, language requirements etc. The final and sixth Chapter consists of merely one provision concerning the Regulation’s entry into force (art 54).

III. Content

1. Procedure for obtaining a preservation order

A creditor may apply for a preservation order both before and after obtaining a judgment or other title in a Member State (art 5). If the application for an EAPO is made even before proceedings on the matter have been initiated, however, the risks for the debtor are significantly higher than in cases where he has already been warned by the fact that the creditor has obtained a judgment against him. In the latter case, it can generally be expected that the claim is well-founded and that the rules on a fair trial have been observed, which alleviates concerns about granting an EAPO without the debtor being summoned to appear. Thus, the Regulation contains particularly stringent requirements with regard to EAPOs for which the creditor applies before obtaining a judgment.

In line with art 35 Brussels I (recast), jurisdiction for granting an EAPO before obtaining a judgment on the merits lies with the courts of the Member State with jurisdiction on the substance of the case (art 6(1) EAPO Regulation). The jurisdiction to rule on the substance of the case will be determined ‘in accordance with relevant rules of jurisdiction applicable’ (art 6(1) EAPO Regulation). With regard to debtors domiciled in a participating Member State, this reference must be read as meaning the Brussels I (recast) and the Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1). Since the EAPO Regulation also allows the attachment p. 685of accounts held by third-state debtors, however (see II.1. above), it is sufficient if a Member State court’s jurisdiction on the merits may be established by domestic law in conjunction with art 6 Brussels I (recast). As far as debtors domiciled in a Member State are concerned, the EAPO Regulation does not replicate the jurisdiction for taking a protective measure pursuant to national law in conjunction with art 35 Brussels I (recast). In this respect, however, creditors may fall back on art 35 Brussels I (recast) and apply for an attachment order available under domestic law, which in this respect allows only a freezing effect limited to a bank account situated in the Member State ordering the attachment. Since more than one court may exercise jurisdiction to rule on the substance under art 6(1) EAPO Regulation in conjunction with Brussels I (recast), the EAPO Regulation prohibits the creditor from filing parallel applications in several courts at the same time (art 16 EAPO Regulation). Consumers are afforded special protection under art 6(2) EAPO Regulation: claims relating to a contract concluded between the creditor and a debtor who is a consumer may only be secured by an EAPO issued in the Member State where the consumer is domiciled. It is unclear whether this restriction is to apply only in cases where the creditor is a professional or whether also C2C-cases should be included; in the light of recent ECJ case-law on the European Enforcement Order (Case C-508/12 Walter Vapenik v Josef Thurner [2014] OJ C 45/14) it seems more coherent also to exclude C2C-transactions in this regard. Unlike under art 17(1)(c) Brussels I (recast), it is not necessary that the creditor has directed their business activities towards the state where the consumer is domiciled.

Where the creditor has already obtained a judgment, jurisdiction lies with the courts of the Member State in which the judgment was issued (art 6(3)).

Given that the procedure on the application of an EAPO is strictly ex parte (art 11), the Regulation seeks to achieve a proper balance between the interests of the creditor and the debtor by defining the conditions for issuing a preservation order (art 7), by requiring a creditor to initiate proceedings on the merits after obtaining a pre-judgment EAPO (art 10), by providing that a court must require a security for an amount sufficient to prevent an abuse of the EAPO (art 12) and by making the creditor liable for damage caused to the debtor as a result of fault on the creditor’s part (art 13). Following criticism by the European Parliament, these provisions have been tightened considerably in comparison with the EAPO Proposal. For a pre-judgment EAPO, creditors must provide ‘sufficient evidence’ to satisfy the court that they are likely to succeed on the merits of the claim (art 7(2)). For pre- and post-judgment orders alike, the creditor must submit ‘sufficient evidence to satisfy the court that there is an urgent need for a protective measure … because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult’ (art 7(1)). Of course, these standards are still phrased in rather general terms, and it will be the task of the ECJ to give guidance to Member State courts in interpreting them, possibly by falling back on the examples given in Recital (14) subpara 4. Potentially useful weapons against abuses of a pre-judgment EAPO are found in art 10, which obliges the creditor who has obtained such a measure to initiate proceedings on the merits promptly, and in art 12(1), which states that a court ‘shall’ require security for an adequate amount. Moreover, the risk of liability a creditor has to face under art 13 will probably also deter abuses of the EAPO. Since requests for obtaining information concerning the debtor’s bank accounts are restricted to post-judgment EAPOs (art 14), the danger of an abuse of the EAPO procedure for mere ‘fishing expeditions’ in the pre-judgment phase is eliminated.

2. Recognition, enforceability and enforcement of the preservation order

Pursuant to art 22, the EAPO will be automatically recognized and enforceable in another Member State without a declaration of enforceability being required. The technical aspects of implementing the EAPO are regulated in a highly detailed fashion (arts 23–29). With regard to the main problem of ensuring an adequate protection of the debtor following the ex parte procedure described above (see III.1. above), the following points deserve to be highlighted: first, the creditor is under a duty to request the release of over-preserved amounts specified in art 27. Second, the EAPO and the related documents are to be served on the debtor in accordance with art 28. Third, the EAPO Regulation refers on various occasions to the law in the state p. 686of enforcement in order to protect debtors in accordance with the law that they could legitimately expect. Hence, domestic laws govern the effect of the EAPO on joint and nominee accounts (eg accounts held by spouses; art 30), the amounts that are exempt from seizure (eg to allow the debtor a minimum standard of living; art 31) and the ranking of the EAPO (art 32).

3. Remedies

The fourth Chapter of the Regulation contains provisions on the →remedies against the EAPO and divides them into three categories. Article 33 deals with the remedies available to the debtors against the EAPO itself, which they must raise in the Member State of origin. Article 34 provides remedies for the debtor which are directed against the enforcement of the EAPO and for which the courts of the state of enforcement have jurisdiction. Article 35 concerns remedies which are directed at a revocation, modification or adjustment of the EAPO due to changed circumstances; these remedies may be raised by either the debtor or the creditor. With the exception referring to the amount exempt from seizure (art 31), remedies available under art 35 must be raised in the state of origin. Moreover, the debtor and the creditor, on the ground that they have agreed to settle the claim, may apply jointly to the court of origin for a revocation or a modification of the EAPO or to the competent court of the Member State of enforcement or, where national law so provides, to the competent enforcement authority in that Member State, for termination or limitation of the enforcement of the order (art 35 (3)).

Under art 33(1)(a), the debtor may apply for a review of the EAPO in the state of origin on the grounds that the conditions and requirements for the issuance of the EAPO (scope, jurisdiction, sufficient evidence) have not been fulfilled. If the creditor has failed to initiate the main proceedings within the time period defined in art 10(1), no specific provision is necessary, because in such a case the court in the state of origin must revoke the EAPO ex officio (art 10(2)); if it fails to do so, a remedy pursuant to art 33(1)(a) is well-founded (see Recital (32)). The remedy may also be based on errors relating to questions of service (art 33(1)(b) and (c), unless these deficiencies have been cured pursuant to paras 3–5), the fact that over-preserved amounts have not been released (art 33(1)(d)), that the secured claim has been paid in full or in part (art 33(1)(e)), that the claim which was meant to be secured by the EAPO has been dismissed (art 33(1)(f)) or that the judgment granting such a claim has been annulled (art 33(1)(g)).

Article 34 specifies the objections that the debtor may invoke against enforcement of the EAPO. The debtor may demand that enforcement of the order should be limited on the grounds that the amounts which are exempt from enforcement have not, or not correctly, been taken into account (art 34(1)(a)). Furthermore, the debtor may request termination of the enforcement on the ground that the preserved bank account is exempt from enforcement (art 34(1)(b)(i)), or that the enforcement of the judgment that was meant to be secured by the EAPO has been refused in the Member State of enforcement (art 34(1)(b)(ii)) or suspended in the state of origin (art 34(1)(b)(iii)). Pursuant to art 34(1)(b)(iv), the debtor may also raise the grounds mentioned in art 33(1)(b)–(g) against the enforcement of the EAPO; in the light of the ECJ Prism judgment (Case C-139/10 Prism Investments BV v Van der Meer [2011] ECR I-9511) according to which compliance with a judgment should be raised as a defence in the state of origin under the Brussels I Regulation, this is a welcome clarification, which is also consistent with Brussels I (recast) and the Maintenance Regulation. Finally, art 34(2) allows the debtor to apply for a termination of the enforcement of the EAPO if it (ie the enforcement) is manifestly contrary to the →public policy of the Member State of enforcement. Thus, as under the Brussels I Regulation (recast), the abolition of exequatur in the EAPO Regulation is curtailed in its legal consequences by providing for a rather strong position of the debtor in challenging enforcement of such a measure.

The defendant may also, pursuant to art 38, ask the competent authority of the Member State of enforcement or the court of origin to terminate the enforcement by providing alternative security for the rights of the claimant. Third parties affected by the order may also raise objections against the EAPO (art 39) before the courts of origin or of enforcement.

IV. Significance

1. For private international law theory

The main significance of the EAPO Regulation for private international law theory lies in the balance that it tries to achieve between the necessity of protecting the creditor from p. 687abusive tactics by the debtor, eg concealing possible objects of enforcement, while at the same time protecting the debtor from abusive →provisional measures. It should be noted that, according to the recent jurisprudence of the ECtHR, provisional measures are not exempt from the guarantee of a fair trial under art 6 of the ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221; Micallef v Malta App no 17056/06 (ECtHR, 15 October 2009)). Yet it is submitted that this guarantee does not necessarily imply that the debtor must be heard before an attachment order is granted. Instead, fairness between creditor and debtor may also be achieved by providing for rather stringent tests before an EAPO is issued and by safeguarding an elevated level of debtor protection ex post. In particular, the abolition of exequatur has been complemented by ensuring a rather high level of debtor protection, not only in the state of origin, but also in the state of enforcement. Where the EAPO Regulation refers to the domestic laws of the Member States, deficits concerning the protection of the debtor may still exist, eg with regard to amounts exempt from seizure. Nevertheless, Member States participating in the EAPO Regulation have the opportunity of filling such gaps before the EAPO Regulation becomes applicable in 2017. Finally, the EAPO Regulation is also important for →choice of law because it contains several conflicts rules, eg on the law governing the liability of creditors and banks, thereby dispensing with the need of localizing the place where the damage occurred within the meaning of art 4(1) of the →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40).

2. For private international law practice

With regard to the practice of international civil litigation, the EAPO Regulation overcomes the shortcomings of the Denilauler jurisprudence of the ECJ that have been described above (see I.1.). Since these defects of the Brussels I Regulation have not been cured by the recast, the practical importance of the EAPO Regulation cannot be overestimated.


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