The European Account Preservation Order

01_The European Account Preservation Order_KY[english]

Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 established a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters.

The Regulation introduces a Union procedure which enables a creditor to obtain a European Account Preservation Order preventing the subsequent enforcement of the creditor’s claim from being jeopardized through the transfer or withdrawal of funds held by the debtor or on his behalf in a bank account in a Member State up to the level indicated in the Order.

Being an instrument of secondary legislation of the European Union, the Regulation applies to all Member States from 18 January 2017. It is binding in its entirety and directly applicable. The Regulation is intended to achieve equal rights in the Member States in accordance with the Treaties. Therefore it applies instead of conflicting national measures, if any.

The European Account Preservation Order applies to claims in civil and commercial matters. It does not extend to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority („acta iure imperii“).

The Regulation does not apply to rights in property arising out of a matrimonial relationship; wills and succession, including maintenance obligations arising by reason of death; claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened; social security; arbitration.

The scope of the Regulation excludes also bank accounts which are immune from seizure under the law of the Member State in which the account is maintained and bank accounts held by or with central banks when acting in their capacity of monetary authorities.

A creditor should be able to obtain a protective measure in the form of a European Account Preservation Order before serving the claim, or in the course of court proceedings, or after the proceedings to enforce the judgment. The debtor is not involved in the proceedings for issuing the Order.

At the end of December 2016, the Bulgarian National Assembly adopted at first reading the amending bill to the Code of Civil Procedure. The bill determines the authority which is competent to issue a European Account Preservation Order, the institution of proceedings in which an appeal may be lodged against a refusal to issue the Order, the direct recognition and enforcement of the Order, and the cases in which the defendant and the claimant may request that the European Account Preservation Order be revoked or modified.

In accordance with the Regulation, the bill envisages that the issuance of a European Account Preservation Order before the claim is lodged may be requested from the first-instance court which is competent to hear the case on its merits.

It is stated in the bill that once the claim is lodged, the issuance of the Order may be requested by the court with which the case is pending at any point of time until the completion of the court proceedings. Where the application for the issuance of the Order is lodged in the course of cassation proceedings, the competent court to issue the Order is the appellate court.

The issuance of the Preservation Order may be requested after the judgment of the first-instance court is obtained or after the court settlement is approved.

A ruling on the refusal to issue a European Account Preservation Order may be appealed with a private complaint.

The competent authority designated to receive, transmit or serve the Preservation Order and the other documents under Regulation (EU) No 655/2014 is the bailiff. With a view to protecting the debtor the applicant is under a duty to take the necessary measures to ensure the release of any amount which, following the implementation of the Preservation Order, exceeds the amount specified in the Preservation Order.

Failing that, the bailiff is under a duty to initiate the release of over-preserved funds of its own motion.

Provided that the conditions set out in the Regulation are met, the defendant or the applicant may request the revocation or modification of the European Account Preservation Order. This may be requested on the ground that the conditions or requirements set out in the Regulation were not met, or the circumstances under which the Order had been issued were changed, etc.

The defendant may request that the enforcement of the European Account Preservation Order be limited or terminated on the ground that the account preserved is excluded from the scope of the Regulation, or the enforcement of the judgment, court settlement or authentic instrument which the creditor was seeking to secure by means of the Order has been refused in the Member State of enforcement, or the enforceability of the judgment the enforcement of which the creditor was seeking to secure by means of the Order has been suspended in the Member State of origin, etc.

The defendant and the applicant may request the bailiff to limit or terminate the enforcement of the European Account Preservation Order on the ground that they have reached an agreement. In these cases the bailiff has the obligation to notify the court which has issued the Order.

The case law is yet to identify the difficulties and disputes arising in the implementation of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014.