European Account Preservation Order

On January 18th 2017 the Regulation (EU) No 655/2014 of the European parliament and of the Council establishing a European Account Preservation Order procedure came into effect. The purpose of this regulation is to facilitate cross-border debt recovery in civil and commercial matters. It is used for all debt-recoveries with the exception of rights in property arising out of a matrimonial or non marital relationships, claims arising from wills and succession, claims against debtors that have become insolvent, claims out of social security and claims arising from arbitration agreements. The regulation is a big step forward in securing successful cross-border debt recovery.

On January 18th 2017 the Regulation (EU) No 655/2014 of the European parliament and of the Council establishing a European Account Preservation Order procedure came into effect. The purpose of this regulation is to facilitate cross-border debt recovery in civil and commercial matters. It is used for all debt-recoveries with the exception of rights in property arising out of a matrimonial or non marital relationships, claims arising from wills and succession, claims against debtors that have become insolvent, claims out of social security and claims arising from arbitration agreements. The regulation is a big step forward in securing successful cross-border debt recovery.

Until this regulation was adopted, the Council Regulation (EC) No 44/2001 from 22. 12. 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was used for cross-border debt recoveries. Point 5 of Article 22 of this regulation stipulated that in proceedings concerned with the enforcement of judgments the courts of the Member State, in which the judgment has been or is to be enforced, have exclusive jurisdiction. This means that only this Member State has the jurisdiction to allow and execute a judgment on the recovery of funds on the debtor’s account in another EU member state. In case the creditor filed a motion for enforcement of the debtor’s assets in another Member State, the Slovenian court rejected such a motion on account of the exclusive jurisdiction of this EU Member State’s court. Such a judgment was also made by the Higher Court in Ljubljana with the decision II Ip 2486/2014. In this matter the creditor suggested an additional action of enforcement by seizure and transferring of assets, which the debtor had in Austria. The court of first instance rejected the creditor’s application on account of the exclusive jurisdiction of the Austrian court. The decision of the court of first instance in the above mentioned proceeding was also affirmed on the second instance (decision of the Higher Court in Ljubljana, case II Ip 2486/2014). In accordance with the provisions of the aforementioned regulation the creditor had to, if he wanted to reach the debtor’s asset in another EU member state with the enforcement, file a new motion for enforcement in this country, which the court had to consider in accordance with it’s national legislation. These proceedings were time consuming and predominantly unsuccessful.

In adopting Regulation (EU) No 655/2014 the proceeding and the possibility of recovering debts from funds that the debtor has in other EU member states has been significantly simplified. According to this regulation, the creditor now has the possibility to file a motion in their home Member State (e.g. Slovenia), for the issue of a preservation order for the debtor’s funds in another EU member state, whereby this state may not be the state, where the creditor is domiciled or the state that decides on the preservation order (Article 3 of Regulation No 655/2014). Now the court of the Member State is competent to decide on issuing a preservation order, in which the creditor got the judgment, court settlement or authentic instrument or in which the procedure was brought before the court in the main matter, based on which such a judgment, court settlement or authentic instrument will be obtained.