With the new EU Regulation n. 655/2014 of the European Parliament and of the Council of 15 May 2014, a procedure was established that allows the creditor to obtain a European preservation order on the debtor's bank accounts.
The European Preservation Order allows the creditor, who has a well-founded fear that the debtor will dissipate his assets, to protect himself from the risk of compromising the subsequent execution of the credit claimed through an instrument that prevents transfers, withdrawals and other banking operations until the amount indicated in the precautionary seizure order.
The aforementioned procedure applies to pecuniary claims in civil and commercial matters in transnational cases.
According to the art. 3 of the aforementioned EU regulation, the case is transnational when:
A) the current account on which the seizure is intended to be carried out is in a Member State other than the Member State which has jurisdiction over the underlying case.
E.g. Italian creditor (purchase credit) French jurisdiction because the debtor is French, current account in Germany;
B) the current account on which the seizure is intended to be carried out is in a Member State other than the one in which the creditor is domiciled.
E.g. Italian creditor, current account in France.
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The European Preservation Order fulfills the same function referred to in the art. 671 of the Italian civil procedure code, however limited to bank current accounts only.
The competent judicial authority to hear the merits of the matter is competent to issue the European Preservation Order.
This procedure can only be used starting from 18 January 2017.
The creditor may alternatively submit a request for a precautionary seizure order in three cases: 1) before initiating substantive proceedings against the debtor, 2) while the same is pending and 3) even where it has already obtained a judicial decision or concluded a transaction judicial order requiring the debtor to comply with the payment.
In support of his request, the creditor must present sufficient evidence to convince the judicial authority of the urgent need for a precautionary measure, confirming the concrete risk of compromising the subsequent enforcement of the credit. Where the substantive proceedings have not yet begun or are pending, the creditor will also have to present sufficient evidence to convince the judicial authority that the application relating to the credit claimed against the debtor will potentially be accepted on the merits.
The order is granted in the absence of cross-examination, since the procedure is carried out on the basis of the information and evidence provided by the creditor together with the application or together with it. If it considers that the evidence provided is insufficient, the judicial authority may ask the creditor to provide further documentary evidence.
It is expressly provided for in art. 11 of the regulation in question, that the debtor is not informed of the request for a preservation order, nor is he heard before its issuance.
However, the debtor is not completely without protection, and in fact the creditor has the unfailing burden of starting the proceedings on the merits and consequently providing proof to the judicial authority with which the application for a precautionary seizure order was filed within 30 days from the date of filing the application.
In the absence of proof of the initiation of proceedings on the merits, the outcome is disastrous, leading to the revocation of the preservation order.
Since the date of January 18, 2017 is now imminent, it is advisable to prepare now for the start of proceedings for the preservation order.
Milano, October 28th 2016.
Avv. Giovanni Babino
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