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05/11/2019
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Toolkit on the European Account Preservation Order: Enforcement

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1. Recognition and enforceability (article 22)

Preservation Orders issued in a Member State in accordance with this Regulation shall be recognised in the other Member States without any special procedure being required and shall be enforceable in the other Member States without the need for a declaration of enforceability.

2. Execution by the bank and declaration of the bank (articles 23 to 27)

2.1. Enforcement of the Preservation Order (article 23)

The regulation insist on the role of the competent authority of the Member State of enforcement that shall act without delay.

Moreover, where the Preservation Order was issued in a Member State other than the Member State of enforcement, it shall be transmitted to the competent authority of the Member State of enforcement.

2.2. Implementation of the Preservation Order (article 24)

As soon as the bank receives the Preservation order, it shall implement it without delay and preserve the amount specified in the Order either by ensuring that that amount is not transferred or withdrawn or where national law so provides, by transferring that amount to an account dedicated for preservation purposes.

It should be mentioned that any funds held in the account which exceed the amount specified in the Preservation Order shall remain unaffected by the implementation of the Order.

Article 24.8 of the Regulation also takes into account the issue of the difference of currency.

2.3.    Declaration concerning the preservation of funds (article 25)

By the end of the third working day following the implementation of the Preservation Order, the bank shall issue a declaration using the declaration form indicating whether and to what extent funds in the debtor’s account have been preserved and, if so, on which date the Order was implemented. In case of exceptional circumstances, an extension of eight days is possible if the bank could not issue the Order within three days.

Where the Order was issued in the Member State of enforcement, the bank shall transmit the declaration to the issuing court and to the creditor.

Where the Order was issued in a Member State other than the Member State of enforcement, the declaration shall be transmitted to the competent authority of the Member State of enforcement that shall transmit the declaration to the creditor by the end of the first working day following the receipt or issue of the declaration.
The last paragraph of article 25 specifies that upon request by the debtor the bank or other entity responsible for enforcing the Preservation Order shall, disclose to the debtor the details of the Order. The bank or entity may also do so in the absence of such a request.

2.4. Liability of the bank (article 26)

The regulation does not deal with the issue of the liability of the bank for failure to comply with its obligations and leave this question to the Member State.

3. Prerequisite for execution

3.1. Service of the Order to the bank (article 23 §3)

3.1.1. Preservation Order issued in the State of enforcement

According to article 23§1 of the Regulation, the Preservation Order shall be enforced in accordance with the procedures applicable to the enforcement of equivalent national orders in the Member State of enforcement.

3.1.2. Preservation Order issued in a Member State other than the Member State of enforcement

According to the Regulation, where the Preservation Order was issued in a Member State other than the Member State of enforcement, the transmission shall be performed be in accordance with Article 29 to the competent authority of the Member State of enforcement.

When the relevant authority receive the documents, it shall enforced the Order in accordance with the national procedures applicable.

3.2. Service on the debtor (article 28)

The Preservation Order shall be served on the debtor but also all the documents sent to the jurisdiction or to the relevant authority in order to obtain the Order.

Article 48 a) of the Regulation excludes explicitly the use of the EC Regulation 1393/2007, especially for the purpose of articles 23 §3, 6 and 28 §1, 3, 5 and 6.

The Regulation states that the documents to be served are:
  • The Preservation Order using parts A and B of the form referred to in Article 19(2) and (3)
  • The application for the Preservation Order submitted by the creditor to the court
  • Copies of all documents submitted by the creditor to the court in order to obtain the Order

It shall be noted that where the Preservation Order concerns more than one bank, only the first declaration pursuant to Article 25 showing that amounts have been preserved shall be served on the debtor in accordance with this Article. Any subsequent declarations pursuant to Article 25 shall be brought to the notice of the debtor without delay.

The Regulation deals with four means of service:

3.2.1. Where the debtor is domiciled in the Member State of origin

Where the debtor is domiciled in the Member State of origin, service shall be effected in accordance with the law of that Member State.

Service shall be initiated by the issuing court or the creditor, depending on who is responsible for initiating service in the Member State of origin, by the end of the third working day following the day of receipt of the declaration pursuant to Article 25 showing that amounts have been preserved.

3.2.2. Where the debtor is domiciled in a Member State other than the Member State of origin

Where the debtor is domiciled in a Member State other than the Member State of origin, the issuing court or the creditor, depending on who is responsible for initiating service in the Member State of origin, shall, by the end of the third working day following the day of receipt of the declaration pursuant to Article 25 showing that amounts have been preserved, transmit the documents referred to in paragraph 1 of this Article in accordance with Article 29 to the competent authority of the Member State in which the debtor is domiciled. That authority shall, without delay, take the necessary steps to have service effected on the debtor in accordance with the law of the Member State in which the debtor is domiciled.

The competent authority shall inform the issuing court or the creditor, depending on who transmitted the documents to be served, of the result of the service on the debtor.

3.2.3. Where the debtor is domiciled in the Member State of enforcement

Where the Member State in which the debtor is domiciled is the only Member State of enforcement, the documents referred to in paragraph 5 of this Article shall be transmitted to the competent authority of that Member State at the time of transmission of the Order in accordance with Article 23(3). In such a case, that competent authority shall initiate the service of all documents referred to in paragraph 1 of this Article by the end of the third working day following the day of receipt or issue of the declaration pursuant to Article 25 showing that amounts have been preserved.
The competent authority shall inform the issuing court or the creditor, depending on who transmitted the documents to be served, of the result of the service on the debtor.

3.2.4. Where the debtor is domiciled in a third State

Where the debtor is domiciled in a third State, service shall be effected in accordance with the rules on international service applicable in the Member State of origin.

4. Preservation of joint and nominee accounts (articles 30)

Funds held in joint and nominee accounts may be preserved under this Regulation only to the extent to which they may be subject to preservation under the law of the Member State of enforcement.

5. Amounts exempt from preservation (article 31)

Amounts that are exempt from seizure under the law of the Member State of enforcement shall be exempt from preservation under this Regulation. It is the case whereas the amounts are exempted from seizure with or without any request from the debtor

6. Ranking of the Preservation Order (article 32)

The Regulation states that the Preservation Order shall have the same rank, if any, as an equivalent national order in the Member State of enforcement.

7. Right to provide security in lieu of preservation (article 38)

Upon application by the debtor:
  • The court that issued the Preservation Order may order the release of the funds preserved if the debtor provides to that court security in the amount of the Order, or an alternative assurance in a form acceptable under the law of the Member State in which the court is located and of a value at least equivalent to that amount;
  • The competent court or, where national law so provides, the competent enforcement authority of the Member State of enforcement may terminate the enforcement of the Preservation Order in the Member State of enforcement if the debtor provides to that court or authority security in the amount preserved in that Member State, or an alternative assurance in a form acceptable under the law of the Member State in which the court is located and of a value at least equivalent to that amount.

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