As part of the objective set by the European Union to mantain and develop an area of freedom, security and justice in which the free movement of persons is guaranteed, the need has arisen for a uniform European procedure for the preservation of bank accounts in order to prevent, among other things, the disappearance of assets prior to the enforcement of a claim. Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 laying down the procedure relating to the European Account Preservation Order in order to simplify cross-border debt recovery in civil and commercial matters has therefore been adopted. Recourse to national protective measures may prove ineffective in cases with cross-border implications; therefore, a binding and directly applicable European Union legal instrument has been adopted, establishing a new Union procedure allowing, in cross-border cases, the effective preservation of assets held in bank accounts in other Member States. This procedure is optional to all other procedures available to the creditor that allow an equivalent measure to be obtained.

With regard to the scope of application, the Regulation includes all pecuniary debts in civil and commercial matters in cross-border cases, and expressly excludes certain matters such as: property rights arising out of a matrimonial property regime (or a relationship with comparable effects to marriage); wills; arbitration; or debtors in insolvency proceedings.

The procedure for obtaining a Preservation Order has the following features:

On the one hand, the Regulation provides that the creditor, using the prescribed form, may apply for a Preservation Order before proceedings on the merits of the case are instituted in a Member State against the debtor. If within 30 days of the application he has not instituted such proceedings (by lodging a statement of claim), the order will be revoked. He may also apply for it at any stage of such proceedings until before the judgment or court settlement is issued; or after he has obtained in a Member State a judgment, court settlement or authentic instrument that binds the debtor to pay a debt in his favour. It should be borne in mind that the creditor is liable for any loss or damage which the Preservation Order causes to the debtor through his fault. For this reason, he will have to provide a surety in an amount sufficient to guarantee a possible compensation for damages, in order to avoid illegal or fraudulent withholding.

On the other hand, where the creditor has been unable to obtain a court decision, court settlement or authentic instrument, the enforcement order may be issued by the judicial bodies of a Member State having jurisdiction as to the substance of the matter where the creditor has provided them with sufficient evidence to establish the urgent need for a protective measure in the form of a Preservation Order and the real risk that, without such a measure, further enforcement of the claim against the debtor will be more difficult. Where the debtor is a consumer, the courts of the Member State in which the debtor is domiciled have jurisdiction to issue the Preservation Order.

It should be noted that this is an inaudita parte procedure, i.e. the debtor will not be notified of the application for a Preservation Order, nor will he be given a hearing.

The creditor may not at the same time lodge parallel applications for a Preservation Order against the same debtor and for the purpose of securing the same claim with more than one court.

The preservation order remains in force until it is revoked. In turn, the creditor has the possibility to appeal against the decision refusing the order.

Once the Preservation Order has been issued, it will be recognised in the other Member States and will be enforceable. In this regard, the bank or entity responsible for the enforcement of the order must issue a declaration recording the enforcement acts adopted under the advisory procedure, as well as the transmission of documents if it has been requested to do so. The bank is liable if it fails to comply with its obligations under the Regulation by applying the law of the Member State of enforcement.

Under the Regulation, amounts that are not attachable under the law of the Member State of enforcement are exempt from retention.

With regard to remedies, it should be noted that the debtor has the right to contest the preservation order when, for example, he has not been notified of the preservation order once his accounts have been preserved, or when he makes payment of the debt, among other things. At the same time, you will have the right to challenge the enforcement of the order if the account withheld is an account that is excluded from the scope of the Regulation. The account preservation order may be challenged by third parties, depending on the law of the Member State where it is issued. The enforcement of the account preservation order will be challengeable by third parties depending on the law of the Member State of enforcement. Appeals brought by third parties against the account preservation order shall be heard by the courts of the State which issued the order. Likewise, appeals brought by third parties against the enforcement of the account preservation order shall be brought in the State of enforcement.

The order may be modified or revoked on the ground that the circumstances in which it was issued have changed, either at the request of the debtor or the creditor or ex officio by the court.

The debtor shall be entitled to provide alternative security in a form permitted by the law of the Member State of the court, such as the provision of a surety in an amount or value equivalent to that laid down in the order.

In the procedure for obtaining a Preservation Order, the parties are not required to be represented by a lawyer or other legal professional.

Finally, Art. 50 of the Regulation provides that, by 18 July 2016, Member States shall communicate to the European Commission the courts competent to issue a Preservation Order, the authority competent to execute the order, among other information. Furthermore, the entire text will be applicable as of 18 January 2017.

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