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
any other methods which are effective and efficient for the purposes of obtaining the relevant information, provided that they are not disproportionately costly or time-consuming.
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.
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!
Here you can find the newsletter (in German) of Kocks & Partners about business law in Belgium from Oktober 2014, dealing with topics: steuerrecht, channeling, mehrwertsteuer, gesellschaftsrecht, eigentumsvorbehalt, insolvenz
Judgement of the European Court of Justice – Case: C-9/12 (Corman-Collins SA v. La Maison du Whisky SA)
Interpretation of Article 2 und Article 5 (1) (a) and (b) of Council Regulation (EC) No 44/2001 (‘Regulation No 44/2001‘)
Summary of facts:
The Belgium based Corman-Collins SA (‘Corman-Collins‘) had a commercial relationship with La Maison du Whisky SA (‘La Maison du Whisky‘), established in France. The contract consisted of Corman-Collins‘ purchase of whisky from La Maison du Whisky and the resale of the beverages in Belgium. After La Maison du Whisky unilaterally ended the commercial relationship, Corman-Collins sued for payment of compensation in lieu of notice and additional compensation under the Law of 27 July 1961 on Unilateral Termination of Exclusive Distribution Agreements of Indefinite Duration (‘Belgian Law of 27 July 1961‘).
1. Jurisdiction: Is Article 2 of Regulation No 44/2001 a precluding rule of jurisdiction in regard to Article 4 of the Belgian Law of 27 July 1961?
2. Interpretation: Does either Article 5 (1)(a) or (b) of Regulation No 44/2001 cover a distribution agreement?
Ruling of the Court:
1. Article 2 of Regulation No 44/2001 must be interpreted as follows: Is the defendant domiciled in a different Member State than the court, it precludes the application of national rules of jurisdiction such as Article 4 of the Belgian Law of 27 July 1961.
2. Article 5 (1) (b) of Regulation No 44/2001 relating to the supply of services is applicable to the situation in which a plaintiff established in one Member State has an exclusive distribution agreement with the defendant established in another Member State. A further criterion for the applicability is that the distribution agreement contains specific terms, binding the parties in matter of the distribution by the distributor of goods sold by the grantor.
Although at first hand, it looks nothing has changed (the competent Court will still be the Belgian Court, albeit through another reasoning), the interesting question lies deeper. The case-law of the highest Court in Belgium states that a Court does not have to examine the facts to solve the question of its jurisdiction, but can base its ruling on the words of the writ. In fact, one only had to write in the writ that there is/was an exclusive distribution agreement, and the Belgian Court would accept its jurisdiction on basis of art. 4 of the Belgian Law of 27 July 1961. The European Court now forces the Belgian Court to investigate whether art. 5 (1) (b) Regulation No 44/2001 apply by looking into the stipulations of the agreement… which is part of the facts. Does this mean that the Belgian Courts will be forced to investigate the facts to solve the question of their jurisdiction?
Mr. Kris Luyckx is one of the most famous criminal defense lawyers of Belgium. Here you see him defending one of the accused in the Nulens and Saltalamacchia vs. Hertenweg murder trail.
Some say criminal lawyers are only looking for media attention and trials covered extensively in the media.
Some even say that they only have eye for the camera…