Opinion of the Advocate General — ECLI:EU:C:2025:852
Date: 2025-10-30
Language of the case: German

summary, the question whether 
the conditions under Article 7(1) of the EAPO Regulation are satisfied. The 
applicant must allege and provide evidence that there is a real risk of enforcement 
being frustrated or made more difficult. 
MR GREEN 
 
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In the light of the submissions and the documents produced, the appeal court 
considers the following facts to be established, on which it bases its decision: 
The defendant is a gaming undertaking established in Malta. It has a Maltese 
licence for online games of chance, but does not have a licence under the Austrian 
Glücksspielgesetz (Law on games of chance). The applicant, who resides in 
Austria, played online games of chance, operated by the defendant, in Austria and 
in the period from 3 January 2017 to 25 April 2019 suffered total losses of 
EUR 62 878.00, in respect of which he brought a claim in Austria. By judgment of 
the Landesgericht für Zivilrechtssachen Wien (Regional Court for Civil Matters, 
Vienna) of 2 December 2021, the applicant was awarded EUR 62 878.00 
including interest and costs against the defendant from the claim for recovery of 
those losses. The appeal lodged by the defendant was dismissed by judgment of 
the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) of 
21 February 2022. Both judgments have been final and enforceable since (at least) 
13 April 2022. The applicant’s claim has not yet been paid. It cannot be 
established whether the applicant applied for enforcement of the recovery of that 
claim in Austria or in Malta. 
Other players have in the past attempted to recover sums awarded to them by way 
of enforcement in Austria and have been successful. The defendant engaged 
Dimoco Europe GmbH, which is established in Austria, as a payment service 
provider with which the defendant had a credit balance and which, as a third-party 
debtor, paid claims against the defendant until the beginning of February 2021. 
The defendant terminated the contract with Dimoco Europe GmbH on an 
unspecified date before 16 February 2021 in order to prevent creditors from 
accessing assets. Subsequently, attempts at enforcement in Austria were 
unsuccessful as the defendant refused to make payment on the basis of Austrian 
decisions which upheld claims for recovery of losses suffered. 
On 12 June 2023, the Maltese Parliament adopted Act No XXI of 2023 to amend 
the Gaming Act. Under Article 56A of that Act (‘the Maltese Act’), actions 
against gaming operators with a Maltese licence are prohibited and it is provided 
that the court must refuse recognition and/or enforcement in Malta of any foreign 
judgment and/or decision given upon such an action. 
In similar cases, Austrian applicants have attempted to obtain enforcement in 
Malta of judgments delivered in their favour in cases relating to gaming. The 
Maltese court of first instance (‘Civil Court First Hall’) refuses to make reference 
to the Court of Justice of the European Union on the question whether the Maltese 
Act is contrary to EU law. It cannot be established whether those decisions are 
final. It cannot be established that enforcement of Austrian judgments delivered in 
cases relating to gaming is refused in Malta by final decisions. 
Legal bases: 
REQUEST FOR A PRELIMINARY RULING OF 8. 3. 2024 – CASE C-198/24 
 
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The relevant provisions of Regulation (EU) No 655/2014 of the European 
Parliament and of the Council of 15 May 2014 (‘the EAPO Regulation’), which is 
applicable in this case, read as follows: 
Recital 14: 
The conditions for issuing the Preservation Order should strike an appropriate 
balance between the interest of the creditor in obtaining an Order and the interest 
of the debtor in preventing abuse of the Order. 
Consequently, when the creditor applies for a Preservation Order prior to 
obtaining a judgment, the court with which the application is lodged should have 
to be satisfied on the basis of the evidence submitted by the creditor that the 
creditor is likely to succeed on the substance of his claim against the debtor. 
Furthermore, the creditor should be required in all situations, including when he 
has already obtained a judgment, to demonstrate to the satisfaction of the court 
that his claim is in urgent need of judicial protection and that, without the Order, 
the enforcement of the existing or a future judgment may be impeded or made 
substantially more difficult because there is a real risk that, by the time the 
creditor is able to have the existing or a future judgment enforced, the debtor may 
have dissipated, concealed or destroyed his assets or have disposed of them under 
value, to an unusual extent or through unusual action. 
The court should assess the evidence submitted by the creditor to support the 
existence of such a risk. This could relate, for instance, to the debtor’s conduct in 
respect of the creditor’s claim or in a previous dispute between the parties, to the 
debtor’s credit history, to the nature of the debtor’s assets and to any recent action 
taken by the debtor with regard to his assets. In assessing the evidence, the court 
may consider that withdrawals from accounts and instances of expenditure by the 
debtor to sustain the normal course of his business or recurrent family expenses 
are not, in themselves, unusual. The mere non-payment or contesting of the claim 
or the mere fact that the debtor has more than one creditor should not, in 
themselves, be considered sufficient evidence to justify the issuing of an Order. 
Nor should the mere fact that the financial circumstances of the debtor are poor or 
deteriorating, in itself, constitute a sufficient ground for the issuing of an Order. 
However, the court may take these factors into account in the overall assessment 
of the existence of the risk. 
Article 7: 
Conditions for issuing a Preservation Order 
1. The court shall issue the Preservation Order when the creditor has submitted 
sufficient evidence to satisfy the court that there is an urgent need for a protective 
measure in the form of a Preservation Order because there is a real risk that, 
without such a measure, the subsequent enforcement of the creditor’s claim 
against the debtor will be impeded or made substantially more difficult. 
MR GREEN 
 
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2. Where the creditor has not yet obtained in a Member State a judgment, court 
settlement or authentic instrument requiring the debtor to pay the creditor’s claim, 
the creditor shall also submit sufficient evidence to satisfy the court that he is 
likely to succeed on the substance of his claim against the debtor. 
Article 22: 
A Preservation Order issued in a Member State in accordance with this Regulation 
shall be recognised in the other Member States without any special procedure 
being required and shall be enforceable in the other Member States without the 
need for a declaration of enforceability. 
Article 46(1): 
All procedural issues not specifically dealt with in this Regulation shall be 
governed by the law of the Member State in which the procedure takes place. 
Article 48: 
This Regulation is without prejudice to: 
… 
(b) Regulation (EU) No 1215/2012; 
… 
Austrian legal bases: 
Paragraph 389 of the Exekutionsordnung (Enforcement Code, EO) provides: 
‘Applications for interlocutory injunctions 
389 (1) When submitting an application for an interlocutory injunction, the 
applicant shall indicate precisely the injunction sought by him or her, the period in 
respect of which it is applied for and the claim asserted by or already granted to 
him or her and give a detailed, truthful presentation of the facts justifying the 
application. If the necessary documentary evidence is not enclosed with the 
application, those facts and, in the absence of a judgment granting the claim, also 
the claim asserted by the applicant shall be demonstrated prima facie at the 
request of the court. 
… ‘ 
Paragraph 422 of the Exekutionsordnung reads as follows: 
‘Application of the provisions concerning interlocutory injunctions and scope 
REQUEST FOR A PRELIMINARY RULING OF 8. 3. 2024 – CASE C-198/24 
 
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422 (1) Unless otherwise provided in this section or in Regulation (EU) 
No 655/2014 establishing a European Account Preservation Order procedure to 
facilitate cross-border debt recovery in civil and commercial matters (European 
Account Preservation Order Regulation – EAPO Regulation), the provisions 
concerning interlocutory injunctions shall be applicable to a European Account 
Preservation Order. 
…’ 
As far as can be seen, the Court of Justice of the European Union has given two 
decisions concerning the EAPO Regulation but has not yet ruled on the specific 
interpretation of Article 7(1) of that regulation. 
In the decision of 7 November 2019, the Court held that a non-enforceable order 
for payment is not an authentic instrument within the meaning of Article 4(10) 
(C-555/18). 
In the decision of 20 April 2023, the Court held that Article 7(2) must be 
interpreted as meaning that, where a judgment is not enforceable, the creditor 
must provide sufficient evidence of the existence of a legitimate claim (C-291/21). 
The grounds of both decisions contained the identical statement that Article 7 
seeks to strike an appropriate balance between the interests of the creditor and 
those of the debtor in so far as it lays down different conditions for the issue of a 
preservation order depending on whether the creditor has or has not already 
obtained, in a Member State, an instrument requiring the debtor to pay the claim. 
In particular, in the first situation, the creditor is required to establish only that the 
measure is needed as a matter of urgency on account of imminent risk, whereas in 
the second situation, he or she must also satisfy the court that he or she is likely to 
succeed on the substance of his or her claim (C-555/18, paragraph 40; C-291/21, 
paragraph 50). 
On 25 May 2023, the Oberster Gerichtshof (Supreme Court, Austria) ruled in a 
similar case (3 Ob 219/22k) with essentially the same arguments (except as 
regards the Maltese Act) that the conditions under Article 7(1) of the EAPO 
Regulation are satisfied if conduct by the debtor which is intended to prejudice 
creditors and to prevent creditors from accessing assets is established. In that case 
there were only a few months between the defendant’s termination of the 
contractual relationship with Dimoco Europe GmbH and the application made to 
the court, and the Maltese Act had not yet been adopted. 
According to the wording of Article 7(1) of the EAPO Regulation, two conditions 
must be satisfied. First, there must be an urgent need for preservation and, second, 
there must be a risk that without preservation enforcement will be impeded or 
made substantially more difficult. Consequently, not only must there be 
(prejudicial) action by the debtor, but that action must also be close in time to the 
submission of the application (‘… recent action …’ (recital 14)). 
MR GREEN 
 
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The termination of the contract with the Austrian payment service provider, which 
was intended to prejudice creditors, is action taken by the defendant in order to 
impede or make substantially more difficult the subsequent enforcement of the 
contested claim. 
In the present case, just over three years passed between the action taken by the 
[defendant] (the termination of the contract) and the application to the court of 
first instance. The longer the period, the less urgent the application appears. The 
fact that under Article 18 of the EAPO Regulation the application must be decided 
within days suggests that a period of several years should not be taken into 
consideration. The period of three years or longer militates against the urgency of 
preservation. In the view of the appeal court, the termination of the contract can 
no longer be considered ‘recent action’ within the meaning of recital 14 of the 
EAPO Regulation and further action by the defendant has not been alleged by the 
applicant. The non-payment of the claim does not constitute action within the 
meaning of recital 14 and does not justify a longer period. In the absence of 
urgency, preservation could not be approved. 
It is uncertain to what extent consideration should be given to the Maltese Act. 
The appeal court recognises that the issue of the Maltese Act being contrary to EU 
law and its removal can be resolved in a universally binding manner only by way 
of infringement proceedings. As long as the Maltese Act is in force and is applied 
by Maltese courts, it must be examined what effects it has on the proceedings in 
question. 
The EAPO Regulation, under Article 48 thereof, is without prejudice to 
Regulation No 1215/2012 (Regulation No 1215/2012). While, in essence, only an 
enforceable instrument (judgment, settlement) is necessary under Regulation 
No 1215/2012 and enforcement – even going beyond attachment of bank 
accounts – is effected only in the State of enforcement, under the EAPO 
Regulation there must be evidence of a risk for the purposes of Article 7(1). In the 
view of the appeal court, it can be concluded, in the light of the different bases of 
claim and effects, that the applicant has a choice of regulation on the basis of 
which to proceed (see recital 6 ‘… an additional and optional means’). It need not 
be examined here whether enforcement of an instrument (judgment, settlement) is 
successful or may be successful (forecast) under Regulation No 1215/2012. It is 
not therefore detrimental to approval of preservation if, as in this case, 
enforcement has not previously been sought under Regulation No 1215/2012. It is 
immaterial for the purposes of preservation under Article 7(1) of [the EAPO 
Regulation] that the State of enforcement (under Regulation No 1215/2012) 
refuses enforcement. It is not necessary in this regard to examine the Maltese Act 
in these proceedings. Aside from this, there is not yet a final decision of a Maltese 
court concerning definitive refusal of enforcement under Regulation 
No 1215/2012. 
However, on the basis of its wording, the Maltese Act infringes Article 22 of the 
EAPO Regulation and, for that reason, the attachment of the Maltese account 
REQUEST FOR A PRELIMINARY RULING OF 8. 3. 2024 – CASE C-198/24 
 
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applied for, and thus enforcement of the claim in Malta, is impeded or made 
substantially more difficult. 
According to the wording of Article 7(1) of the EAPO Regulation, the risk to 
enforcement is not only restricted to action taken by the debtor, but can also arise 
from the conduct of third parties. In this regard the Maltese Act would have to be 
considered as an obstacle to enforcement. Recital 14 of the EAPO Regulation 
seeks a balance of interests between the creditor and the debtor and, in connection 
with evidence of a risk, refers to conduct attributable to the debtor, while there is 
no mention of action taken by third parties. Neither the creditor nor the debtor 
influences the Maltese Act, which is why, in the view of the appeal court, it does 
not appear to be justified to take into account the conduct of the Maltese 
legislature. The Maltese Act neither prevents preservation, in particular of 
accounts in the other Member States, nor justifies the approval of preservation as 
an obstacle to attachment of the Maltese account. 
The court therefore requests that the Court of Justice of the European Union give 
an interpretation of the conditions under Article 7(1) of the EAPO Regulation. 
…