Toolkit on the European Account Preservation Order: Procedure
1. Jurisdiction (article 6)
1.1. Preservation Order delivered before obtaining a judgment, court settlement or authentic instrument
In such a case, the preservation order is requested during a judicial procedure and article 6 specifies that jurisdiction shall lie with the courts of the Member State which have jurisdiction to rule on the substance of the matter in accordance with the relevant rules of jurisdiction applicable (See Regulation EU 1215/2012).
According to Paragraph 2 of the Regulation there is an exception when the debtor is a consumer who has concluded a contract with the creditor for a purpose which can be regarded as being outside the debtor’s trade or profession. In this sole hypothesis, jurisdiction shall lie only with the courts of the Member State in which the debtor is domiciled.
1.2. Preservation Order delivered after obtaining a judgment, court settlement or authentic instrument
If the creditor has already obtained a judgment, court settlement or authentic instrument, jurisdiction to issue a Preservation Order for the claim shall lie with the courts of the Member State in which the judgment was issued or the court settlement was approved or concluded.
2. Conditions for issuing a Preservation Order (article 7)
2.1. Urgency
The creditor has to prove that there is an urgent need for a protective measure in the form of a Preservation Order.
The risk should exist that without a Preservation Order the debt collection may be impeded or made substantially more difficult.
2.2. Evidence
The creditor has to submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor.
However, where the creditor has already obtained a judgment, court settlement or authentic instrument, these elements are proven by the decision he obtained itself.
3. Application for a Preservation Order (article 8)
Application shall be lodged using a multilingual standard form. This form contains many elements listed at article 8 of the regulation such as information about the parties, about the court, about the bank but also evidences, information about the procedure, about the debt. The idea is to analyse the seriousness of the request in order to avoid abuses.
According to article 41 of the Regulation, the creditor can fill in the form on his own but this might create problems considering the complexity of the application.
The claimant shall join to the application all the supportive documents and, if he has already obtained a judgment, court settlement or authentic instrument, a copy of this document with the elements assessing its authenticity.
The application and the relevant documents may be sent by any means of communication, including electronic, which are accepted under the procedural rules of the Member State in which the application is lodged.
4. Taking of evidence (article 9)
If the court considers that the evidence provided is insufficient, it may, where national law so allows, request the creditor to provide additional documentary evidence.
5. Initiation of proceedings on the substance of the matter (article 10)
The Regulation deals with two hypotheses:
- The procedure has been started at the date where the document instituting the proceedings is submitted to the court;
- The procedure is considered as started if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the creditor has not subsequently failed to take the steps he was required to take to have the document lodged with the court.
Article 10 of the Regulation specifies that where the creditor has applied for a Preservation Order before initiating proceedings on the substance of the matter, he shall initiate such proceedings and provide proof of such initiation to the court with which the application for the Preservation Order was lodged within 30 days of the date on which he lodged the application or within 14 days of the date of the issue of the Order, whichever date is the later.
The creditor shall also give the evidence to the jurisdiction. Otherwise, the Preservation Order shall be revoked or shall terminate and the parties shall be informed accordingly.
6. Ex parte procedure (article 11)
It is important to note that the procedure is not contradictory. The idea is to benefit from the surprise effect and thus to protect the efficiency of the procedure.
7. Security to be provided by the creditor (article 12)
7.1. Preservation Order in a case where the creditor has not yet obtained a judgment, court settlement or authentic instrument
Where the creditor has not yet obtained a judgment, court settlement or authentic instrument, the court shall require the creditor to provide security for an amount sufficient to prevent abuse of the procedure.
The judge shall inform the creditor of the amount required and of the forms of security acceptable under the law of the Member State in which the court is located. It shall indicate to the creditor that it will issue the Preservation Order once security has been provided.
However, exceptionally, the judge may dispense with the provision of security.
7.2. Preservation Order in a case where the creditor has already obtained a judgment, court settlement or authentic instrument
Where the creditor has already obtained a judgment, court settlement or authentic instrument, the court may, before issuing the Order, require the creditor to provide security if it considers this necessary and appropriate in the circumstances of the case.
