​Regulation (EU) 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order (EAPO) procedure to facilitate cross-border debt recovery in civil and commercial matters (the “Regulation”) will be implemented as from 18 January 2017.

In order to facilitate the enforcement of cross-border debts, the Regulation introduces a uniform procedure across the participating Member States of the European Union (the United Kingdom and Denmark are not bound by this Regulation), whereby the creditor can file one single application in standard form with the competent court of a participating Member State to freeze the debtor’s bank accounts in another participating Member State(s) without further freezing order(s). An EAPO can be requested at any stage of the proceedings, even before and/or after the issuance of a judgment.

The Regulation intends to make a balance between creditors’ rights and safeguards for debtors (Recital 14).

As a result, a creditor who applies before the issuance of a judgment (or court settlement or authentic instrument) requiring the debtor to pay the creditor’s claim, must establish (i) that he is likely to succeed on the substance of his claim and (ii) that there is an urgent need for obtaining an EAPO 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 difficult”. The creditor will also be required, as a matter of principle, to “provide security for an amount sufficient to prevent abuse of the procedure” and “to ensure compensation for any damage suffered by the debtor”. Recital 18 specifies that the amount for which the EAPO has been granted may be used as a guideline for determining the amount of the security to be provided by the creditor. The creditor who applies post-judgment must demonstrate the urgent need for obtaining the measure. Moreover, a security will be only required if the Court issuing the EAPO considers it “necessary and appropriate”, for instance if the judgment obtained by the creditor is only provisionally enforceable due to a pending appeal.

An EAPO is an alternative to national freezing orders and has the same rank as an equivalent measure under national law. As a consequence, EAPOs may have different effects depending on the Member State of enforcement.

Moreover, the uniform procedure provided for by the Regulation concerns only the conservative stage of the seizure (i.e. the freezing of the assets) but not its final stage including the payment to the creditor, who thus will have to use the enforcement measures available in the Member State of enforcement to obtain the actual payment of the frozen assets.

Moreover, the Regulation provides the possibility for the creditor who has obtained an enforceable judgment to obtain information on the bank accounts of its debtor (Article 14).

On the side of the debtor, the Regulation provides various remedies against an EAPO and against its enforcement. In addition, the Regulation includes the requirement for the creditor to compensate the debtor for any damages caused to him due to his fault (fault-based liability of the creditor).

The Regulation also includes conflict-of-law rules regarding the claimant’s liability and the bank’s liability.

It remains to be seen how the Regulation will be applied across the participating Member States.

A bill of law 7083 aims to implement the Regulation and amending the New Code of civil procedure and the law of 23 December 1998 establishing a financial sector supervisory commission (“Commission de surveillance du secteur financier”).

Contacts

Philippe-Emmanuel Partsch

Partner

EU Financial & Competition Law

François Kremer

Partner

Commercial & Insolvency, Litigation & Dispute Resolution

Clara Mara-Marhuenda

Partner

Commercial & Insolvency, Litigation & Dispute Resolution

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