On 27 June 2014, Regulation 655/2014 of the European Parliament and the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters was published in the Official Journal of the European Union (the "Regulation").
This Regulation establishes a Union procedure enabling a creditor to obtain a European Account Preservation Order (saisie conservatoire sur compte bancaire) as an alternative to preservation measures under national law. The text applies to pecuniary claims in civil and commercial matters in cross-border cases.
The creditor may obtain a Preservation Order in the following cases:
before the initiation of proceedings against the debtor on the substance of the matter in a Member State or during such proceedings up until the issuing of the judgment, the approval or the conclusion of a court settlement, or
after the issuing of a judgment, court settlement or authentic instrument, in a Member State, which forces the debtor to pay the creditor's claim.
In the first case, the Preservation Order shall be issued by the courts of the Member State which have jurisdiction to rule on the substance of the matter within 10 working days after the creditor's application and in the second case, by the courts of the Member State in which the judgment was issued, the settlement approved or concluded or the instrument was drawn up within 5 working days after the creditor's application.
The condition for the issuing of a Preservation Order is that the creditor has sufficiently proved to the court that there is an urgent need for a Preservation Order because there is a real risk that the subsequent enforcement of the creditor's claim against the debtor will be impeded or made substantially more difficult without such a measure. If the creditor had not yet started proceedings before applying for a Preservation Order or has not yet succeeded on the substance of his claim, he shall submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor.
As a guarantee for the surprise effect, the debtor shall not receive any notification of the creditor's application for the Preservation Order and he shall not be heard before the issuing of the Order.
If the creditor has not yet succeeded in his claim or when the court finds it necessary and appropriate, the creditor shall be asked to provide security for an amount sufficient to prevent abuse and to ensure compensation of any damage suffered by the debtor as a result of the Preservation Order to the extent that the creditor is liable for such damage, the burden of proof lying with the debtor, except in the cases where the creditor's fault is presumed.
When the creditor, having obtained a judgment, court settlement or authentic instrument, has reason to believe that the debtor holds one or more accounts with a bank in a Member State but has no information whatsoever, he may ask the court, with which the application for the Preservation Order is lodged, to request that the information authority of the Member State of enforcement obtain the information necessary to allow the identification of the bank(s) and the debtor's account(s).
The creditor may make the same request where the judgment, court settlement or authentic instrument obtained is not yet enforceable and the amount to be preserved is substantial. In this case, he has to submit sufficient evidence to the court that the information is necessary because of the risk that the subsequent enforcement could be jeopardised without such information, leading to a substantial deterioration of the creditor's financial situation.
The Preservation Order shall be recognised in the other Member States without any additional procedure nor declaration of enforceability being required and shall have the same rank as an equivalent national order, if any, in the Member State of enforcement.
The debtor is granted different remedies against the Preservation Order and its enforcement.
The Regulation will enter into force on 18 January 2017.
