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Proper assessment of the utility of the Mareva Injunction and the Saisie Conservatoire would not be possible without casting a few words on one of the most recent European developments: the availability of the European Account Preservation Order (hereinafter: EAPO) since 18 January 2017 when Regulation 655/2014—that created it—came into being.
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Section 54 of Regulation 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters.
For a succinct overview of the procedures for the issuance and enforcement of EAPOs see European Commission, Judicial Cooperation in Civil Matters in the European Union— A Guide for Legal Practitioners ( 2014), at 105–109.
See Carty and James (Sept. 2014). For a somewhat more optimistic comment see the recent comments of the Vienna-based law firm Schönherr from under the pen of Simss and Lehfuss ( 2017), [Both accessed 15 Apr. 2018].
See para 50 of Regulation 655/2014.
European Commission communication ‘ Preservation of Bank Accounts’ available electronically at http://ec.europa.eu/justice/civil/commercial/freeze-accounts/index_en.htm. [Accessed 15 April 2018].
Article 2(1) of the Regulation.
Article 2(2) of the Regulation.
In particular the following should make EAPOs efficient. First and foremost, they are issued by courts e x parte (Art. 11) and within short deadlines (Art. 18). While in this first phase the rules admittedly are straightforward, one should not forget that the courts asked to issue EAPOs have some discretion as well. It remains to be seen whether ex parte measures are compatible with such legal systems as Hungary that do not provide for issuance of provisional measures without notice and opportunity to be heard. For example, courts—if allowed by the laws of the Member State having jurisdiction to issue the order and if the court is of the opinion that the evidence provided by the applicant is insufficient—may ask for additional evidence from the applicant (Art 9(1)), what may prolong the proceedings. Secondly, in the second phase, where the already issued Preservation Order needs to be enforced in such another Member States where the debtor has bank accounts, rules exist as well to ensure efficiency. For example, there is no need to obtain a declaration of enforceability (Art. 22) and all authorities handling the case are expected to act without delay (Art. 23(2)). While this may in principle ensure maximum speed of action, given that the further steps are to be undertaken exactly as for “ equivalent national orders” (Art. 23(1)), if this prong does not work properly in a jurisdiction in general, that may slow down the process of enforcement of EAPOs.
See Krans ( 2015), at 572. (Defining the ‘invisible pillar’ as “ European influence on national civil procedure” and as a factor that leads to increased Europeanization of procedural laws and arguing that this leads to differences in the application of European laws by various Member States and within the Member states—to wit, external and internal fragmentation). Id. at 587.
Regulation 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Prevention Order procedure to facilitate cross-border debt recovery in civil and commercial matters
European Commission, Judicial Cooperation in Civil Matters in the European Union—A Guide for Legal Practitioners (2014)
Krans B (2015) EU law and national civil procedure law: An invisible pillar. Eur Rev Private Law 23(4–2015):567–588
Kyriakides N (2014) The United Kingdom’s stance to recently introduced European account preservation order. Civil Justice Q 33(4):375–378
Owens A (2016) Analysis of the requirements for the grant of a European account preservation order. Glasgow University Law Rev (Electron J). Available electronically at http://www.gulawreview.org/entries/commercial/analysis-of-the-requirements-for-the-grant-of-a-european-account-preservation-order
European Commission Communication (2014) Preservation of bank accounts. Available electronically at European Commission communication ‘Preservation of Bank Accounts’ available electronically at http://ec.europa.eu/justice/civil/commercial/freeze-accounts/index_en.htm. Accessed 10 June 2018.
Simss M, Lehfuss N (2017) Freeze! Securing a debtor’s assets in a foreign country cab be a difficult and lengthy exercise—a new EU regulation will change that. Available at http://www.schoenherr.eu/publications/publications-detail/freeze-securing-a-debtors-assets-in-a-foreign-country-can-be-a-difficult-and-lengthy-exercise-a/
- The European Account Preservation Order: Nuclear Weapon or Paper Tiger?
- Chapter 5
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