Christoph Kocks nimmt teil an der #WirasVerbundsitzung 1-2/4/2019 in #Düsseldorf zu u.a. folgenden Themen #Digitalisierung #Cybersecurity #rechtlicheVerantwortung #brexit http://ow.ly/dEs330nZNbP
Yes, you read it good. The new European Regulation 665/2014 foresees a mechanism where your creditor can request information about your bank account(s) in a certain Member State. Not unimportant, as the creditor needs to indicate the bank account number in his request for a transnational seizure (under Belgian national law, the indication of the name of the Bank would already sufficient).
Art. 14 of the Regulation now foresees what one could call a bank account disclosure mechanism:
Request for the obtaining of account information
1. Where the creditor has obtained in a Member State an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the Preservation Order is lodged to request that the information authority of the Member State of enforcement obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified.
In a few Member States (including Belgium), such disclosure mechanism is completely new. The Regulation leaves it up to the Member States how they will organize this new disclosure, by giving a few examples:
Each Member State shall make available in its national law at least one of the following methods of obtaining the information referred to in paragraph 1:
an obligation on all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them;
access for the information authority to the relevant information where that information is held by public authorities or administrations in registers or otherwise;
the possibility for its courts to oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts where such an obligation is accompanied by an in personam order by the court prohibiting the withdrawal or transfer by him of funds held in his account or accounts up to the amount to be preserved by the Preservation Order; or
Does this mean any creditor can just run to the Court and ask information?
No, some conditions apply:
- the creditor needs to be in possession of an enforceable judgment;
- there need to be reasons to believe the debtor holds bank accounts in this Member State.
Conclusion: it will be interesting to see how the Member States are going to apply this new mechanism. Whether it will be effective, will also depend on the interpretation of ‘reasons to believe the debtor holds bank accounts in this Member State’. This will probably be the key to the question if this will end the Pyrrhus decisions, where a creditor is accorded his claim but cannot find assets to seize.
From 18 January 2017, the new European Regulation 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters will enter into force.
The Regulation foresees in a procedure to seize bank accounts of your debtor in other EU Member States (except when your debtor is domiciled in United Kingdom or Denmark), without that the debtor is notified hereof. The debtor will only notice once the seizure is into force.
Such crossborder seizure can be obtained before the Courts of an EU Member State who would have jurisdiction on the merits of the case under the EU Regulation 1215/2012 (Brussels I bis).
The seizure can be requested before, during or even after the procedure on the merits of the case. The request has to be filed using a standard document.
To grant the request, the Court will have to examine 1) if there is urgency (periculum in mora) and 2) if there is on basis of the provided evidence enough reason to assume the Court will also decide in favor of the creditor in the proceedings concerning the merits of the case (fumus boni iuris). Although these principles are not unknown to national legislation, both will have to await the autonomous interpretation by the European Court of Justice.
The new EU Regulation 655/2014 is however not created to bully any unwilling debtor by filing preservation order after preservation order. The Regulation foresees 2 mechanisms to avoid such practices:
- According to art. 12, the creditor can be required to provide a security when he has not obtained any judgment in favor yet;
- The creditor will also receive a fixed delay in which he has to undertake a proceedings about the merits of the case.
Don’t you just love those little local Courts? Nowhere can you find such diversity in case law.
Take for example the decision of 16th October 2013 by the civil Court of First Instance Dinant. The Court had to rule about a case where a horse was sold which turned out to be injured.
Main question was if the Act of September 1, 2004, concerning the protection of consumers in sales of consumer goods would apply to this sale-purchase.
The Court ruled that a horse is a moveable good in accordance to art. 528 Belgian Civil Code. Moreover, the seller was considered a professional seller as he was a farmer who regularly sold horses.
The injury of the horse was also considered as a non-conformity and thus the sale-purchase was annulled by the Court.
Everybody who has seen ‘Up in the air’ with George Clooney will know: the frequent traveller likes his/her habits.
No wonder, Ms Heather Cho went completely nuts last year on a Korean Air flight when here macademia nuts were served still in the bag, while first class passengers have the right to have them served on a plate.
Happened to be that Ms Cho was also daughter of the CEO of Korean Air. Without further notice, she forced the crew to return the plane back to the gate for this serious breach of (first class) aviation law. And at the same time, she could kick the crew member who served her these nuts off her plane. As it was more or less indeed HER plane.
Unfortunately for her, Korean Court ruled today there was no serious breach on behalf of the crew but found Ms Cho guilty of forcing the plane to change its route, obstructing the flight captain and forcing a crew member off a plane, resulting in 1 year prison sentence.
I wonder how they serve nuts in prison… if they serve them at all…
1. Since 10th January 2015, the new Brussels I bis Regulation (1215/2012) applies on all new cases brought before Court after this date. Claims and cases already pending on this date, are not affected.
2. Brussels I bis is more or less an update of the Brussel I Regulation (44/2001) and will therefore sound very familiar to the experienced cross-border litigator
3. The Italian and Belgian ‘torpedo’s’ are tackled as the Court appointed by a forum clause will have priority to state whether or not it has the necessary competence. The Belgian and Italian torpedo’s were known tactics to slow down the whole proceedings, as the Courts in both countries only rule concerning their competence at the end (often after several years). Together with the rule that other Courts had to await the ruling of the Court where the claim was first brought, one could slow down proceedings by bringing a claim before the Italian or Belgian Courts (notwithstanding a forum clause f.e.)
4. Foreign judgments no longer need an ‘exequatur‘ (domestication) in the Member State where one wants to execute this jugdment
5. The Brussels I bis Regulation will also apply if 2 parties are both from outside a Member State but appoint a Court of a Member State in their forum clause
I am definitely on a roll. After our firm won both International Litigation Law Firm of the year and Distribution Law Firm of the Year in Belgium, it had become time to also polish my personal success and show my colleagues who is responsible for all these cracking Moët&Chandon Imperial Bruts!
As without any effort – and in all honesty, it was without any effort – I could claim our third prize of the year 2014: Litigation Lawyer of the year in Belgium 2014! No sharing with teams or offices this time, but my own personal 1,6kg crystal materialization of my success… and only for 250 euros (unless I order 10 or more, then they would make me a deal).
Beware, 2015 will see the rise of the Jordan Belfort of Belgian law!
Kocks & Partners have been for many years the preferred lawyer of AdvantageAustria in Brussels, Belgium. We were happy to be invited at the yearly Christmas reception which was this year also the farewell reception of Mr Peter Fuchs. Pictures are here. We are looking forward to continue our cooperation with Mrs Martina Madeo.