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.
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
David Diris – Belgian lawyer – Kocks & Partners – Brussels