THE free movement of goods, people and capital within the European Union has considerably increased judicial cross-border problems. A few weeks ago, we addressed in another article, the possibility of enforcing in Spain a sentence issued in another state member of the EU. Today we analyse a truly effective tool, and not very well known, that allows the collection of debts across the board. European Regulation 655/2014. As we will explain below, thanks to this regulation it is possible to seize European bank accounts in civil and commercial matters.
Material and territorial scope of application
Regulation 665/2014 on the European Account Preservation Order (EAPO) applies in all EU countries, apart from Denmark. Logically, since Brexit came into force, it cannot be invoked to freeze bank accounts in the United Kingdom either.
Regarding its material scope of application, it applies to civil and commercial matters, regardless of the court involved. This means that this Regulation may also be used in cases arising from employment proceedings. The same applies, for example, to civil liability arising from criminal cases. However, matters related to wills, inheritance, matrimonial property regimes, social security, etc are excluded (Art. 2).
When can the EAPO be filed?
The seizure of European bank accounts can be requested at different times. Initially, when filing of a lawsuit, in the form of precautionary measures. It can also be applied for at a later stage, once a judgement has been obtained that requires the debtor to pay an amount to the creditor.
What is the competent authority to process this application?
It will largely depend on the moment in time when the application is made. Art. 6 lists all the cases (debtor being a consumer, when it is requested as a precautionary measure, etc) and the competent court in each case.
Requirements for the presentation of the European Account Preservation Order
To submit the application, it is mandatory to use the forms provided in the regulation itself. These forms are available in detail in the Commission Implementing Regulation (EU) 2016/1823. The competent authority will authorise the preservation order when it is duly accredited that there is a real risk of not recovering the debt without this measure. In the absence of an enforceable title (like a judgement) sufficient evidence must be provided to prove that the claim has a basis for success (Art. 7).
It should be noted that the creditor requesting the freezing of the bank accounts of the debtor, may be required to provide a caution, depending on the case (Art. 12).
Enforceability and lack of identification of funds
One of the most remarkable aspects of the Regulation is that once the Preservation Order has been sent to another Member State, it is automatically enforceable. No prior process or declaration to that effect is necessary (Art. 22). In addition, the creditor does not need to provide specific details of the accounts to be frozen. If the creditor does not know the specific bank where the debtor may have money, he can request that the Court of the country of destination investigates this on its own.
If you wish to collect a debt, the debtor has no assets in Spain, but you suspect that he may have accounts abroad, do not hesitate to contact us. We will study your case and offer you expert advice about the possibility to seize European bank accounts.
The information provided in this article is not intended to be legal advice, but merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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