Debt recovery abroad finally finds an effective remedy in EU member countries. Thanks to the legislative decree approved on Sunday 18.10.20, by the Council of Ministers, in implementation of Regulation (EU) no. 655/2014.
The new procedure applies only to cross-border cases, i.e. those in which the judicial authority dealing with the application for the Preservation Order is located in one Member State and the bank account covered by the order is held in another Member State. .
Debt collection and conservation seizure of current accounts in the EU
The reg. EU 655/14 established 'a procedure for the European Preservation Order on Bank Accounts in order to facilitate the cross-border recovery of debts in civil and commercial matters'. (1)
The Council of Ministers, on the proposal of the Minister for European Affairs Vincenzo Amendola and the Minister of Justice Alfonso Bonafede, definitively approved a legislative decree that adapts national rules to the provisions of Regulation (EU) no. 655/2014.
European Preservation Order
The creditor has the right to obtain a European order for the attachment of the sums held by the debtor on bank accounts also present in other EU Member States. Through a quick procedure alternative to the procedure established by national law. Unheard of alters part, when the conditions are met.
The procedure it applies to pecuniary credits in civil and commercial matters, including those deriving from professional services and work activities. With the following exclusions:
- receivables from debtors subject to insolvency proceedings (bankruptcy, composition with creditors, controlled administrations and various types of insolvency proceedings, provided for in the various national regimes),
- State responsibility for acts and omissions in the exercise of public authority (EU Reg. 655/14, article 2.1),
- claims arising from arbitration,
- tax, customs and administrative credits,
- social Security,
- property rights deriving from relations between spouses or relationships more uxorio,
- wills, inheritances and obligations mortis causa.
Are excluded from seizure 'bank accounts that are exempt from seizure under the law of the Member State where the account is held'and the amounts held with financial institutions that do not collect deposits (eg bodies that provide financing for export and investment projects or projects in developing countries, or provide financial market services. EU Reg. 655/14, article 2.3 ).
The procedure can be activated:
- before or at any stage of the judgment on the merits, or
- after a judicial decision, a judicial settlement or a public act that imposes a payment obligation on the debtor (EU Reg. 655/14, articles 5 and following).
The judicial authority competent to issue an attachment order is generally the one competent to rule on the merits of the claim. If the debtor is a consumer, the jurisdiction falls on the judicial authority of the Member State where the same is domiciled.
The uniform terms for the decision on the application for the Preservation Order are defined in Article 18 of Reg. EU 655/14. The Preservation Order issued in one Member State is recognized and enforceable in the other Member States without the need for a special procedure or a declaration of enforceability (EU Reg. 655/14, Article 22).
Information on bank accounts
Following credit assessment (by judicial decision, court settlement or executive public deed), if the creditor 'has reason to believe that the debtor holds one or more accounts with a bank in a particular Member State, but does not know the name and / or address of the bank, or the IBAN, BIC or other bank details that allow the identification of the bank, may ask the judicial authority with which the application for the attachment order is lodged to request that the information authority of the executing Member State obtain the information necessary to enable the bank or banks to be identified, and account or accounts of the debtor'(EU reg. 655/14, article 14).
The creditor must produce sufficient evidence to convince the judicial authority of the existence of a concrete risk that justifies the freezing of the debtor's bank account. (2)
Credits they may also be not yet due, 'provided that these credits derive from a transaction or from an event that has already taken place and the amount can be established, including credits falling within the field of willful or negligent civil offenses and actions for damages or restitution arising from a criminal offense'. (3)
The ability to act without the debtor's prior hearing, it is counterbalanced by means of specific safeguard mechanisms. Various forms of appeal - including the possibility of opposing the Preservation Order following its notification (4) - but also the possibility for the judge to require the creditor to deposit a deposit to cover any damages, in hypothesis of unsuccessful. (5) Without neglecting the rights of third parties. (6). Finally, some hypotheses of presumed liability of the creditor are introduced (EU regulation 655/14, article 13).
Further updates coming soon.
(1) Regulation (EU) no. 655/2014 of the European Parliament and of the Council, of 15514, establishing a procedure for the European Preservation Order on Bank Accounts in order to facilitate the cross-border recovery of debts in civil and commercial matters. On https://eur-lex.europa.eu/legal-content/IT/TXT/?qid=1603028120002&uri=CELEX%3A32014R0655
(2) The cd periculum in mora occurs when 'the execution of an existing or future judicial decision could be prevented or made much more difficult as there is a real risk that, before the creditor is able to obtain the execution of an existing or future judicial decision, the debtor may have dissipated, concealed or destroyed his assets or disposed of them below their value, to an unusual extent or through an unusual action'(EU reg. 655/14, considering 14, article 12)
(3) EU Reg. 655/14, considering 12
(4) EU Reg. 655/14, articles 33-37
(5) 'In cases where the creditor has not yet obtained a court decision, court settlement or public deed requiring the debtor to pay the creditor's claim, the provision of a guarantee should be the rule and the judicial authority should grant a waiver from this obligation or request the provision of a guarantee of a lower amount only exceptionally if it considers that the guarantee is inappropriate, unnecessary or disproportionate in the circumstances of the case'(EU Reg. 655/14, recital 18, article 38)
(6) Reg. Cited, article 39