Parltrack

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

Opinion of the European Data Protection Supervisor on a proposal for a regulation of the European Parliament and of the Council creating a European account preservation order to facilitate cross-border debt recovery in civil and commercial matters

Whilst the EDPS is pleased to see the application of and the references to the principle of necessity, he believes that the proposed regulation would still require some further improvements and clarifications.

Removal of claimant’s address: according to Article 25 of the proposal, the defendant shall be served with the EAPO and all documents submitted to the court or competent authority with a view to obtaining the order, which seems to include the information provided in Annexes I, II and III. There is no indication of the possibility for the claimant to request the removal of his address details from the different documents before they are sent to the defendant. As there might be circumstances in which revealing the address details of the claimant to the defendant might entail the risk of the claimant being subject to out of court pressure from the defendant, the EDPS suggests that the claimant should be able to request the removal of these details from the information provided to the defendant.

Telephone number and e-mail address of defendant: if this information is included as data fields in Annex Iwhich can be used if other contact information of the defendant is missing, this should be clarified. Otherwise, there seems to be no reasons to keep these data fields.

Defendant’s bank accounts: Article 17(2) requires the claimant to provide ‘all information available to the claimant’ about the defendant and the defendant's bank account(s). This is a broad formulation, which could entail the transfer of all kinds of information on the defendant. The provision does not make clear that such information should be restricted to information which is necessary to identify the defendant and determine his or her bank account(s). The EDPS recommends restricting the information provided by the claimant to what is necessary to identify the defendant and to determine his or her bank account(s),

Appropriate and reasonable means of obtaining information: the reference in Article 17(4) to ‘all the appropriate and reasonable means’ could imply methods of investigation which severely intrude into the private life of the defendant.

In order to prevent any misunderstanding on the scope of the means available to the competent authority, the legislator could consider replacing the reference to ‘all appropriate and reasonable means’ by ‘one of the two methods referred to in paragraph 5’.

Existing public registers: the two methods are as follows: obliging all banks in the territory of the Member State of enforcement to disclose whether the defendant holds an account with them, and access by the competent authority where the information is held by public authorities or administrations in registers or otherwise. The EDPS has questions with regard to the second one. In Annex I to the proposal, reference is made to ‘existing public registers’

For the sake of clarity, it should be explained what is actually meant by Article 17(5)(b) of the proposal. Furthermore, the methods for collecting the information should comply with the principles of necessity and proportionality.  

Lastly, the EDPS feels that Article 27(3) should stipulate that the bank may transmit its declaration by electronic means of communication, if these means are secure in line with Articles 16 and 17 of Directive 95/46/EC.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

Opinion of the European Data Protection Supervisor on a proposal for a regulation of the European Parliament and of the Council creating a European account preservation order to facilitate cross-border debt recovery in civil and commercial matters

Whilst the EDPS is pleased to see the application of and the references to the principle of necessity, he believes that the proposed regulation would still require some further improvements and clarifications.

Removal of claimant’s address: according to Article 25 of the proposal, the defendant shall be served with the EAPO and all documents submitted to the court or competent authority with a view to obtaining the order, which seems to include the information provided in Annexes I, II and III. There is no indication of the possibility for the claimant to request the removal of his address details from the different documents before they are sent to the defendant. As there might be circumstances in which revealing the address details of the claimant to the defendant might entail the risk of the claimant being subject to out of court pressure from the defendant, the EDPS suggests that the claimant should be able to request the removal of these details from the information provided to the defendant.

Telephone number and e-mail address of defendant: if this information is included as data fields in Annex Iwhich can be used if other contact information of the defendant is missing, this should be clarified. Otherwise, there seems to be no reasons to keep these data fields.

Defendant’s bank accounts: Article 17(2) requires the claimant to provide ‘all information available to the claimant’ about the defendant and the defendant's bank account(s). This is a broad formulation, which could entail the transfer of all kinds of information on the defendant. The provision does not make clear that such information should be restricted to information which is necessary to identify the defendant and determine his or her bank account(s). The EDPS recommends restricting the information provided by the claimant to what is necessary to identify the defendant and to determine his or her bank account(s),

Appropriate and reasonable means of obtaining information: the reference in Article 17(4) to ‘all the appropriate and reasonable means’ could imply methods of investigation which severely intrude into the private life of the defendant.

In order to prevent any misunderstanding on the scope of the means available to the competent authority, the legislator could consider replacing the reference to ‘all appropriate and reasonable means’ by ‘one of the two methods referred to in paragraph 5’.

Existing public registers: the two methods are as follows: obliging all banks in the territory of the Member State of enforcement to disclose whether the defendant holds an account with them, and access by the competent authority where the information is held by public authorities or administrations in registers or otherwise. The EDPS has questions with regard to the second one. In Annex I to the proposal, reference is made to ‘existing public registers’

For the sake of clarity, it should be explained what is actually meant by Article 17(5)(b) of the proposal. Furthermore, the methods for collecting the information should comply with the principles of necessity and proportionality.  

Lastly, the EDPS feels that Article 27(3) should stipulate that the bank may transmit its declaration by electronic means of communication, if these means are secure in line with Articles 16 and 17 of Directive 95/46/EC.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

Opinion of the European Data Protection Supervisor on a proposal for a regulation of the European Parliament and of the Council creating a European account preservation order to facilitate cross-border debt recovery in civil and commercial matters

Whilst the EDPS is pleased to see the application of and the references to the principle of necessity, he believes that the proposed regulation would still require some further improvements and clarifications.

Removal of claimant’s address: according to Article 25 of the proposal, the defendant shall be served with the EAPO and all documents submitted to the court or competent authority with a view to obtaining the order, which seems to include the information provided in Annexes I, II and III. There is no indication of the possibility for the claimant to request the removal of his address details from the different documents before they are sent to the defendant. As there might be circumstances in which revealing the address details of the claimant to the defendant might entail the risk of the claimant being subject to out of court pressure from the defendant, the EDPS suggests that the claimant should be able to request the removal of these details from the information provided to the defendant.

Telephone number and e-mail address of defendant: if this information is included as data fields in Annex Iwhich can be used if other contact information of the defendant is missing, this should be clarified. Otherwise, there seems to be no reasons to keep these data fields.

Defendant’s bank accounts: Article 17(2) requires the claimant to provide ‘all information available to the claimant’ about the defendant and the defendant's bank account(s). This is a broad formulation, which could entail the transfer of all kinds of information on the defendant. The provision does not make clear that such information should be restricted to information which is necessary to identify the defendant and determine his or her bank account(s). The EDPS recommends restricting the information provided by the claimant to what is necessary to identify the defendant and to determine his or her bank account(s),

Appropriate and reasonable means of obtaining information: the reference in Article 17(4) to ‘all the appropriate and reasonable means’ could imply methods of investigation which severely intrude into the private life of the defendant.

In order to prevent any misunderstanding on the scope of the means available to the competent authority, the legislator could consider replacing the reference to ‘all appropriate and reasonable means’ by ‘one of the two methods referred to in paragraph 5’.

Existing public registers: the two methods are as follows: obliging all banks in the territory of the Member State of enforcement to disclose whether the defendant holds an account with them, and access by the competent authority where the information is held by public authorities or administrations in registers or otherwise. The EDPS has questions with regard to the second one. In Annex I to the proposal, reference is made to ‘existing public registers’

For the sake of clarity, it should be explained what is actually meant by Article 17(5)(b) of the proposal. Furthermore, the methods for collecting the information should comply with the principles of necessity and proportionality.  

Lastly, the EDPS feels that Article 27(3) should stipulate that the bank may transmit its declaration by electronic means of communication, if these means are secure in line with Articles 16 and 17 of Directive 95/46/EC.

Opinion of the European Data Protection Supervisor on a proposal for a regulation of the European Parliament and of the Council creating a European account preservation order to facilitate cross-border debt recovery in civil and commercial matters

Whilst the EDPS is pleased to see the application of and the references to the principle of necessity, he believes that the proposed regulation would still require some further improvements and clarifications.

Removal of claimant’s address: according to Article 25 of the proposal, the defendant shall be served with the EAPO and all documents submitted to the court or competent authority with a view to obtaining the order, which seems to include the information provided in Annexes I, II and III. There is no indication of the possibility for the claimant to request the removal of his address details from the different documents before they are sent to the defendant. As there might be circumstances in which revealing the address details of the claimant to the defendant might entail the risk of the claimant being subject to out of court pressure from the defendant, the EDPS suggests that the claimant should be able to request the removal of these details from the information provided to the defendant.

Telephone number and e-mail address of defendant: if this information is included as data fields in Annex Iwhich can be used if other contact information of the defendant is missing, this should be clarified. Otherwise, there seems to be no reasons to keep these data fields.

Defendant’s bank accounts: Article 17(2) requires the claimant to provide ‘all information available to the claimant’ about the defendant and the defendant's bank account(s). This is a broad formulation, which could entail the transfer of all kinds of information on the defendant. The provision does not make clear that such information should be restricted to information which is necessary to identify the defendant and determine his or her bank account(s). The EDPS recommends restricting the information provided by the claimant to what is necessary to identify the defendant and to determine his or her bank account(s),

Appropriate and reasonable means of obtaining information: the reference in Article 17(4) to ‘all the appropriate and reasonable means’ could imply methods of investigation which severely intrude into the private life of the defendant.

In order to prevent any misunderstanding on the scope of the means available to the competent authority, the legislator could consider replacing the reference to ‘all appropriate and reasonable means’ by ‘one of the two methods referred to in paragraph 5’.

Existing public registers: the two methods are as follows: obliging all banks in the territory of the Member State of enforcement to disclose whether the defendant holds an account with them, and access by the competent authority where the information is held by public authorities or administrations in registers or otherwise. The EDPS has questions with regard to the second one. In Annex I to the proposal, reference is made to ‘existing public registers’

For the sake of clarity, it should be explained what is actually meant by Article 17(5)(b) of the proposal. Furthermore, the methods for collecting the information should comply with the principles of necessity and proportionality.  

Lastly, the EDPS feels that Article 27(3) should stipulate that the bank may transmit its declaration by electronic means of communication, if these means are secure in line with Articles 16 and 17 of Directive 95/46/EC.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

Opinion of the European Data Protection Supervisor on a proposal for a regulation of the European Parliament and of the Council creating a European account preservation order to facilitate cross-border debt recovery in civil and commercial matters

Whilst the EDPS is pleased to see the application of and the references to the principle of necessity, he believes that the proposed regulation would still require some further improvements and clarifications.

Removal of claimant’s address: according to Article 25 of the proposal, the defendant shall be served with the EAPO and all documents submitted to the court or competent authority with a view to obtaining the order, which seems to include the information provided in Annexes I, II and III. There is no indication of the possibility for the claimant to request the removal of his address details from the different documents before they are sent to the defendant. As there might be circumstances in which revealing the address details of the claimant to the defendant might entail the risk of the claimant being subject to out of court pressure from the defendant, the EDPS suggests that the claimant should be able to request the removal of these details from the information provided to the defendant.

Telephone number and e-mail address of defendant: if this information is included as data fields in Annex Iwhich can be used if other contact information of the defendant is missing, this should be clarified. Otherwise, there seems to be no reasons to keep these data fields.

Defendant’s bank accounts: Article 17(2) requires the claimant to provide ‘all information available to the claimant’ about the defendant and the defendant's bank account(s). This is a broad formulation, which could entail the transfer of all kinds of information on the defendant. The provision does not make clear that such information should be restricted to information which is necessary to identify the defendant and determine his or her bank account(s). The EDPS recommends restricting the information provided by the claimant to what is necessary to identify the defendant and to determine his or her bank account(s),

Appropriate and reasonable means of obtaining information: the reference in Article 17(4) to ‘all the appropriate and reasonable means’ could imply methods of investigation which severely intrude into the private life of the defendant.

In order to prevent any misunderstanding on the scope of the means available to the competent authority, the legislator could consider replacing the reference to ‘all appropriate and reasonable means’ by ‘one of the two methods referred to in paragraph 5’.

Existing public registers: the two methods are as follows: obliging all banks in the territory of the Member State of enforcement to disclose whether the defendant holds an account with them, and access by the competent authority where the information is held by public authorities or administrations in registers or otherwise. The EDPS has questions with regard to the second one. In Annex I to the proposal, reference is made to ‘existing public registers’

For the sake of clarity, it should be explained what is actually meant by Article 17(5)(b) of the proposal. Furthermore, the methods for collecting the information should comply with the principles of necessity and proportionality.  

Lastly, the EDPS feels that Article 27(3) should stipulate that the bank may transmit its declaration by electronic means of communication, if these means are secure in line with Articles 16 and 17 of Directive 95/46/EC.

AVIS DU CONTRÔLEUR EUROPÉEN DE LA PROTECTION DES DONNÉES (CEPD)  sur une proposition de règlement du Parlement européen et du Conseil portant création d’une ordonnance européenne de saisie conservatoire des comptes bancaires (OESC), destinée à faciliter le recouvrement transfrontalier de créances en matière civile et commerciale.

Le CEPD note avec satisfaction les efforts entrepris pour tenir compte des différents aspects de protection des données qui sont soulevés par la proposition d’instrument d’une OESC. Plus particulièrement, il apprécie l’application du principe de nécessité et les références qui y sont faites. Cependant, le CEPD estime que la proposition de règlement nécessite des améliorations et des clarifications supplémentaires.

Détails de l’adresse du demandeur : selon l’article 25 de la proposition, l’OESC est signifiée ou notifiée au défendeur, à l’instar de tous les documents soumis à la juridiction ou à l’autorité compétente en vue de l’obtention de l’ordonnance, ce qui semble inclure les informations visées aux annexes I, II et III. Aucune mention n’est faite de la possibilité pour le demandeur de demander le retrait des détails de son adresse des différents documents avant qu’ils ne soient envoyés au défendeur. Étant donné qu’il peut exister des situations dans lesquelles la divulgation des détails de l’adresse du demandeur au défendeur est susceptible d’entraîner le risque de faire subir au demandeur des pressions extrajudiciaires de la part du défendeur, le CEPD suggère au législateur d’inclure à l’article 25, la possibilité pour le demandeur de demander le retrait de ces détails des informations communiquées au défendeur.

Champs de données facultatives concernant le numéro de téléphone et l’adresse électronique : le CEPD recommande de retirer les champs de données facultatives de l’annexe I (le numéro de téléphone et l’adresse électronique du défendeur) si le véritable besoin de ces données n’est pas démontré.

Informations relatives aux comptes bancaires du défendeur : la proposition exige du demandeur qu’il communique «toutes les informations dont dispose le demandeur», relatives au défendeur et aux comptes bancaires de ce dernier. Cette formulation large pourrait comprendre la transmission de tous types d’informations relatives au défendeur. Cette disposition ne précise pas que ces informations doivent être limitées aux informations nécessaires à l’identification du défendeur et à la détermination de ses comptes bancaires. Le CEPD recommande d’inclure cette limitation dans la proposition.

Moyens appropriés et raisonnables d’obtention de l’information: la mention à l’article 17, paragraphe 4, de «tous les moyens appropriés et raisonnables» pourrait comprendre des méthodes d’investigation portant gravement atteinte à la vie privée du défendeur. Afin d’éviter toute interprétation erronée de la portée des moyens dont dispose l’autorité compétente, le législateur pourrait envisager de remplacer la mention de «tous les moyens appropriés et raisonnables» par «une des deux méthodes visées au paragraphe 5».

Registres publics existants : le CEPD a des questions concernant la méthode concernant l’accès par l’autorité compétente aux informations qui sont détenues par des autorités ou administrations publiques et qui sont consignées dans des registres ou sous une autre forme. À l’annexe I de la proposition, il est fait mention de «registres publics existants». Dans un souci de clarté, il conviendrait d’expliquer ce que signifie «registres publics existants» à l’article 17, paragraphe 5, point b). Il conviendrait de souligner que non seulement les informations collectées devraient être nécessaires aux fins de la proposition de règlement mais également que les méthodes de collecte des informations devraient se conformer aux principes de nécessité et de proportionnalité.

Transmission transfrontalière des données: aux termes de la proposition, les banques peuvent transmettre leur déclaration (au moyen du formulaire dont le modèle figure à l’annexe III) par des moyens électroniques de communication sécurisés. Le CEPD recommande de reformuler l’article 27, paragraphe 3, de manière à préciser que la banque peut transmettre sa déclaration par des moyens électroniques de communication, à condition que ces moyens soient sécurisés conformément aux articles 16 et 17 de la directive 95/46/CE. 

AVIS DU CONTRÔLEUR EUROPÉEN DE LA PROTECTION DES DONNÉES (CEPD)  sur une proposition de règlement du Parlement européen et du Conseil portant création d’une ordonnance européenne de saisie conservatoire des comptes bancaires (OESC), destinée à faciliter le recouvrement transfrontalier de créances en matière civile et commerciale.

Le CEPD note avec satisfaction les efforts entrepris pour tenir compte des différents aspects de protection des données qui sont soulevés par la proposition d’instrument d’une OESC. Plus particulièrement, il apprécie l’application du principe de nécessité et les références qui y sont faites. Cependant, le CEPD estime que la proposition de règlement nécessite des améliorations et des clarifications supplémentaires.

Détails de l’adresse du demandeur : selon l’article 25 de la proposition, l’OESC est signifiée ou notifiée au défendeur, à l’instar de tous les documents soumis à la juridiction ou à l’autorité compétente en vue de l’obtention de l’ordonnance, ce qui semble inclure les informations visées aux annexes I, II et III. Aucune mention n’est faite de la possibilité pour le demandeur de demander le retrait des détails de son adresse des différents documents avant qu’ils ne soient envoyés au défendeur. Étant donné qu’il peut exister des situations dans lesquelles la divulgation des détails de l’adresse du demandeur au défendeur est susceptible d’entraîner le risque de faire subir au demandeur des pressions extrajudiciaires de la part du défendeur, le CEPD suggère au législateur d’inclure à l’article 25, la possibilité pour le demandeur de demander le retrait de ces détails des informations communiquées au défendeur.

Champs de données facultatives concernant le numéro de téléphone et l’adresse électronique : le CEPD recommande de retirer les champs de données facultatives de l’annexe I (le numéro de téléphone et l’adresse électronique du défendeur) si le véritable besoin de ces données n’est pas démontré.

Informations relatives aux comptes bancaires du défendeur : la proposition exige du demandeur qu’il communique «toutes les informations dont dispose le demandeur», relatives au défendeur et aux comptes bancaires de ce dernier. Cette formulation large pourrait comprendre la transmission de tous types d’informations relatives au défendeur. Cette disposition ne précise pas que ces informations doivent être limitées aux informations nécessaires à l’identification du défendeur et à la détermination de ses comptes bancaires. Le CEPD recommande d’inclure cette limitation dans la proposition.

Moyens appropriés et raisonnables d’obtention de l’information: la mention à l’article 17, paragraphe 4, de «tous les moyens appropriés et raisonnables» pourrait comprendre des méthodes d’investigation portant gravement atteinte à la vie privée du défendeur. Afin d’éviter toute interprétation erronée de la portée des moyens dont dispose l’autorité compétente, le législateur pourrait envisager de remplacer la mention de «tous les moyens appropriés et raisonnables» par «une des deux méthodes visées au paragraphe 5».

Registres publics existants : le CEPD a des questions concernant la méthode concernant l’accès par l’autorité compétente aux informations qui sont détenues par des autorités ou administrations publiques et qui sont consignées dans des registres ou sous une autre forme. À l’annexe I de la proposition, il est fait mention de «registres publics existants». Dans un souci de clarté, il conviendrait d’expliquer ce que signifie «registres publics existants» à l’article 17, paragraphe 5, point b). Il conviendrait de souligner que non seulement les informations collectées devraient être nécessaires aux fins de la proposition de règlement mais également que les méthodes de collecte des informations devraient se conformer aux principes de nécessité et de proportionnalité.

Transmission transfrontalière des données: aux termes de la proposition, les banques peuvent transmettre leur déclaration (au moyen du formulaire dont le modèle figure à l’annexe III) par des moyens électroniques de communication sécurisés. Le CEPD recommande de reformuler l’article 27, paragraphe 3, de manière à préciser que la banque peut transmettre sa déclaration par des moyens électroniques de communication, à condition que ces moyens soient sécurisés conformément aux articles 16 et 17 de la directive 95/46/CE. 

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.

PURPOSE: to create a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters.

PROPOSED ACT: Regulation of the European Parliament and of the Council.

BACKGROUND: at present, a creditor seeking to recover his debt in another Member State faces significant difficulties. Currently, debtors can easily escape enforcement measures by swiftly moving their monies from a bank account in one Member State to another. As a result, many creditors are either unable to successfully recover their claims abroad or do not consider it worthwhile pursuing them and write them off.

Essentially, four main shortcomings of the current situation can be identified:

• the conditions for issuing orders preserving assets in bank accounts under national law vary considerably throughout the EU;
• in many Member States it is difficult, if not impossible, for a creditor to obtain information about the whereabouts of his debtor's bank account without having recourse to the services of private investigation agencies;
• the costs of obtaining and enforcing an account preservation order in a cross-border situation are generally higher than in domestic cases, which deters creditors from recovering their claims abroad with the help of the judicial system;
• lastly, the divergences in and length of national enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision. This jeopardizes the effectiveness of provisional measures like account preservation orders which by definition depends on a swift implementation.

Although much progress has been made towards the creation of a genuine European Area of Civil Justice since then, these issues have not yet been addressed by the European legislator.

To date, the procedural modalities of enforcement of a judgment or other enforceable title are exclusively governed by national law. This approach does not change with the proposed revision of Regulation Brussels I.

On 24 October 2006, the Commission adopted a Green Paper which suggested to create a European provisional measure for the preservation of bank accounts.

The Commission Action Plan implementing the 2009 Stockholm Programme provides for a Regulation on improving the efficiency of the enforcement of judgments in the European Union: the attachment of bank accounts.

The need for improving cross-border debt recovery was most recently emphasized by the European Parliament which adopted in May 2011 a resolution calling on the Commission to put forward a proposal on interim measures for the freezing and disclosure of debtor's assets in cross-border cases.

IMPACT ASSESSMENT: the Commission analysed the costs and benefits of the main aspects of the proposed reform in its Impact Assessment which accompanies this proposal.

LEGAL BASIS: points (a), (e) and (f) of Article 81(2) of the Treaty on the Functioning of the European Union (TFEU).

CONTENT: the general objectives of this proposal are to facilitate the recovery of cross-border claims for citizens and businesses, in particular SMEs and improve the efficiency of enforcement of judgments in civil and commercial matters concerning cross-border disputes, thereby reducing the risks involved in cross-border trade, increasing confidence of traders, improving payment behaviour of debtors in cross-border situations and encouraging more cross-border business activity.  

More specifically, this proposal aims at

• enabling creditors to obtain account preservation orders on the basis of the same conditions irrespective of the country where the competent court is located;
• allowing creditors to obtain information on the whereabouts of their debtors' bank accounts; and
• reducing costs and delays for creditors seeking to obtain and enforce an account preservation order in cross-border situations.

The proposed Regulation will establish a new and self-standing European procedure for the preservation of bank accounts which will enable a creditor to prevent the transfer or withdrawal of his debtor's assets in any bank account located in the European Union. The European procedure will be available to citizens and companies as an alternative to procedures existing under national law.

The instrument provides for common rules as regards the conditions and procedure of the issue, enforceability and enforcement of the order, remedies against the European Account Preservation Order, as well as other provisions concerning legal representation and cost issues.

The European account preservation order would be of a protective nature only, i.e. it would only block the debtor's account but not allow money to be paid out to the creditor. In order to ensure the surprise effect of the account preservation order, the debtor should not be informed about the application, be heard prior to its issue or notified of the order prior to its implementation by the bank. The debtor should, however, be able to contest the order immediately after it was implemented.

In line with the legal traditions of the large majority of Member States, the European order will have an in rem effect, i.e. be directed against specific accounts and not at the debtor personally.

BUDGETARY IMPLICATION: this proposal has no budgetary implication for the Union budget.

DELEGATED ACTS: the proposal contains provisions empowering the Commission to adopt delegated acts in accordance with Article 290 of the Treaty on the Functioning of the European Union.