EN    EN  
 EUROPEAN COMMISSION 
Brussels, 25.7.2011 
SEC(2011) 937 final 
  
COMMISSION STAFF WORKING PAPER 
IMPACT ASSESSMENT 
Accompanying the document 
Proposal for a 
 
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
Creating a European Account Preservation Order to facilitate cross-border debt 
recovery in civil and commercial matters 
{COM(2011) 445 final} 
{SEC(2011) 938 final}  
 
EN 1   EN DISCLAIMER: This report commits only the Commission's services  involved in its 
preparation and does not prejudge the final fo rm of any decision to be taken by the 
Commission 
 
EN 2   EN TABLE OF CONTENTS 
1. Introduction................................................................................................................ ...5 
2. Political Mandate and Consulta tion of Interested Parties.............................................5 
2.1. Political mandate and existing instruments ..................................................................5 2.2. Organisation and timing ...............................................................................................7 2.3. Impact Assessment Board.............................................................................................7 2.4. Consultation and expertise............................................................................................8 2.5. Respect of Fundamental Rights ....................................................................................9 3. Problem definition ......................................................................................................10 3.1. The problem of cross-border debt recovery................................................................10 3.1.1. Introduction............................................................................................................ .....10 
3.1.2. The problem of obtaining provisional  measures in cross-border cases......................11 
3.2. Stages of cross-border debt recove ry and current legal framework ...........................11 
3.2.1.  Provisional measures for the pres ervation of debtor's assets......................................11 
3.2.2. Proceedings on the merits...........................................................................................14 3.3. The causes of the current problem..............................................................................15 3.3.1.  Problem 1: Conditions for issuing preservation orders vary throughout the EU .......15 3.3.2. Problem 2: Difficulties to obtain inform ation on debtor's bank account in some 
Member States ............................................................................................................16 
3.3.3.  Problem 3: Costs of obtaining a preser vation order are higher  in cross-border 
cases.......................................................................................................................... ..17 
3.3.4.  Problem 4: Differences in nationa l enforcement systems and length of 
enforcement procedures in Member States.................................................................18 
3.3.5.  Reasons for suboptimal use of preserva tion orders in cross-border disputes.............20 
3.4. Scale of the problem ...................................................................................................20 3.4.1. Who is affected? ........................................................................................................ .20 
3.4.2. Companies ............................................................................................................... ...21 
3.4.3. Consumers ............................................................................................................... ...23 
 
EN 3   EN 3.4.4. Maintenance creditors.................................................................................................24  
3.5. Illustration of the problems.........................................................................................24 3.5.1. Companies ............................................................................................................... ...24 
3.5.2. Consumers ............................................................................................................... ...27 
3.5.3. Maintenance creditors.................................................................................................28  
3.6. Need for action at EU level ........................................................................................28 3.6.1. Does the EU have the power to act?...........................................................................28 3.6.2. Subsidiarity............................................................................................................ .....29 
4. Objectives .................................................................................................................. .29 
5. Description of Policy Options ....................................................................................30 5.1. Option A: Status quo after revisi on of Regulation Brussels I ....................................30 
5.2. Option B: Creation of a Eur opean Account Preservation...........................................31 
5.3. Option B1: Bank attachment - Creation of a European Order for  preservation of 
bank accounts combined with  transf er of monies to the creditor ..............................31 
5.4. Option C: Harmonising national rules fo r the preservation of bank accounts ...........31 
5.5. Option C1: Harmonisation of national rules for bank attachment, i.e. the 
preservation of bank accounts and for the transfer of funds to the creditor ...............32 
6. Discarded policy options ............................................................................................32 7. Evaluation of Retained Policy Options and Impact Assessment................................33 7.1. Option A: Status Quo after revi sion of Regulation Brussels I....................................33 
7.2. Option B: European Account Preservation Order ......................................................34 7.3. Option C: Harmonisation of national rule s on the preservation of bank accounts.....40 
8. Comparing the Options...............................................................................................42 9. The preferred policy option a nd its further sub-options .............................................43 
9.1. Sub-options relating to th e hearing of the debtor .......................................................43 
9.2. Sub-options relating to jurisdiction fo r issuing and contesting the order...................44 
9.3. Sub-options relating to obtaining information on the debtor's account......................46 
9.4. Sub-options relating to time-limits fo r issuing and enforcing the preservation 
order.......................................................................................................................... ..49 
 
EN 4   EN 10. Summary of the Preferred Option and its Impact.......................................................52 
11. Monitoring and Evaluation .........................................................................................56 Annex I  Glossary of legal terms ..............................................................................................5 7 
Annex II Summary of contributions  to the public consultation................................................60 
Annex IIIa Short Summary of the Public Hearing....................................................................66 Annex IIIb Short Summary of the meeti ng with Member States' experts ................................67 
Annex IV Review of existing schemes for preservation order and bank attachment...............68 
ANNEX V Summary of EBTP Survey Data ............................................................................78 Annex VI Lawyer's fees in the Member States.........................................................................81 Annex VII Estimating Cross-Border Bad Debt Levels.............................................................83 
 
EN 5   EN 1. INTRODUCTION  
The Internal Market offers citizens and co mpanies unique opportunities to do business or 
shop in other Member States. In addition, more and more European citizens decide to move to another Member State and found a family there. When business or family relations turn sour and the other party doe s not pay voluntarily the sums due - e.g. the 
purchase price, damages for breach of cont ract or family main tenance – citizens and 
businesses are faced with the problem of havi ng to recover their debt in another Member 
State with the help of the judicial system.  
At present, a creditor seeking to recover his debt in another Member State faces 
significant difficulties. In particular, it is mo re cumbersome, lengthy and costly for him to 
obtain provisional measures*
1 to preserve assets of his de btor located abroad. The quick 
and easy access to such provisional measures is often crucial to ensure  that the debtor has 
not removed or dissipated his assets by the time the creditor  has obtained and enforced a 
judgment on the merits*. This is particularly important with regard to assets in bank 
accounts. Currently, debtors ca n easily escape enforcement measures* by swiftly moving 
their monies from a bank account in one Memb er State to another.  A creditor, however, 
has little chance of blocking a debtor's bank acco unts abroad to secure  the payment of his 
claim. As a result, many creditors are either  unable to successfully recover their claims 
abroad or do not consider it worthwhile  pursuing them and write them off.  
This initiative aims to facilitate cross- border debt recovery by improving access to and 
the efficiency of the preservation of ba nk accounts in the European Union. It will 
contribute to strengthen the confidence of businesses – particularly SMEs (small and 
medium enterprises), consumers and families to make full use of the possibilities offered by the Single Market and to engage in cross- border trade and relations hips within the EU. 
This is consistent with the Commission's integrated approach to strengthen the recovery of the European economy as set out in the Europe 2020 Strategy for Growth
2. 
2. POLITICAL MANDATE AND CONSULTATION OF INTERESTED PARTIES  
2.1. Political mandate and existing instruments 
The Stockholm Programme to deliver justice, freedom and security to citizens, adopted 
by the European Council in December 2009, states  that "the Europ ean judicial area 
should serve to support economic activity in th e Single Market". It therefore "invites the 
Commission to put forward appropriate pr oposals for improving the efficiency of 
enforcement of judgments in the EU regarding bank accounts and debtors' assets". The 
                                                 
1 Terms marked with an asterix are defined in the Glossary of legal terms in Annex I.  
2  At the European Council meeting on 26 March 2010, European Union leaders set out their plan for 
“Europe 2020”, a strategy to enhance the compe titiveness of the EU and to create more growth 
and jobs. http://ec.europa.eu/europe2020/index_en.htm 
 
EN 6   EN Commission Action Plan Implem enting the Stockholm Programme3 confirms this 
political mandate by referring to an ini tiative for a "Regulation on improving the 
efficiency of the enforcment of judgements in the European Union: the attachment of 
bank accounts" under the section on supporting economic activity. 
The Commission already noted th e difficulties of cross-border debt recovery in its 1998 
Communication ‘Towards Greater  Efficiency in Obtaining and Enforcing Judgments in 
the European Union’4. In view of the diversity of Member States’ legislation and the 
complexity of the subject, the Commission pr oposed to confine reflec tion initially to the 
problem of bank attachments. The Council endo rsed this approach in its 2000 Programme 
of Mutual Recognition by calling upon the Co mmission to establish protective measures 
against the debtor's assets at European level and to improve the efficiency of enforcement 
of decisions in another Member State, i.a. by facilitating access to information about the 
debtor's assets5.  
Although much progress has been made towards the creation of a genuine European Area 
of Civil Justice since then, none  of the existing legislative in struments creates a European 
provisional measure or covers the enforcem ent proper of decisions. Existing instruments 
in the area of civil justice, e.g. Regulation Brussels I6, solely ensure that a judgment given 
in one Member State is recognised and enforceable  in another Member State but they do 
not contain any provision on how the judgments  are actually enforced. To date, the 
enforcement of a judgment or other enforceab le title is exclusively governed by national 
law. This approach does not change with th e proposed revision of Regulation Brussels I7.  
Existing European procedures - the European Small Claims Procedure8 and the European 
order for payment procedure9 – facilitate the task of the creditor to obtain a decision on 
the substance in a cross-border situation. Th ey do not create a European procedure for 
obtaining a protective measure. 
A previous attempt by the Commission to follow up on this pol itical mandate by 
proposing several provisions on enforcement,  including the creation of a preservation 
                                                 
3  COM(2010) 171 final of 20.4.2010 
4  OJ C 033, 31.1.1998, p. 3. 
5  OJ. C 12, 15.1.2001, p. 1, 5 at point  2 (a) (iii),(iv) and p. 6 at point 2. 
6 Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in 
civil and commercial matters, OJ L 12 of 16.1.2001, p. 1. 
7 Proposal for a Regulation on jurisdiction and the recognition and enforcement of judgments in 
civil and commercial matters (Recast), CO M (2010) 748 fina l of 14.12.2010. 
8 Regulation (EC) No 861/2007 establishing a European Small Claims Procedure, OJ L 199 of 
31.7.2007. 
9 Regulation (EC) No 1896/2006 creating a European order for payment procedure, OJ L 399 of 
30.12.2006. 
 
EN 7   EN order, in the specific context of family ma intenance was rejected  by the Council on the 
grounds that these issues should be dealt with in a separate, horizontal legal instrument.10  
2.2. Organisation and timing 
The Commission's Work Programme for 2011 in cludes the adoption of a legislative 
proposal on improving the efficiency of the enforcement of judgments in the EU: cross-border debt recovery. It is a strategic in itiative for which a road map was prepared 
(adoption foreseen in July 2011). 
The Commission launched an external study to  support the preparation of the Impact 
Assessment (hereinafter "the external study)
11. The problems, objectives and policy 
options assessed in that study are based on the outcome of the consultation and the 
expertise brought together by th e Commission to prepare the pres ent initiative as well as 
contributions from the contractor.  
This report also incorporates contributions  submitted during two meetings of the inter-
service steering group on 29 June 2010 and on 1 March 2011 in which representatives of 
Directorates-General Enterpri se and Industry, Health and C onsumer Affairs, Internal 
Market, Taxation and Customs, the Secretariat General and the Legal Service participated. 
2.3. Impact Assessment Board 
This Impact Assessment was reviewed by the Impact Assessment Board (IAB). The 
recommendations issued in the IAB's opinion have been accommodate d in this revised 
version of the report. In part icular, the following changes have been made: (i) the analysis 
of the problem has been strengthened by explai ning better the stages of cross-border debt 
recovery and the problems remain ing in this area after the re vision of Regulation Brussels 
I, in particular the assumptions underlying th e estimates of the economic effects of the 
measure have been clarified, (ii) the asse ssment of the baseline scenario has been 
expanded and the added value of  the preferred opti on highlighted; (iii) the assessment of 
the impacts has been improved, in particular  assessing further sub-options reflecting 
important elements of the legislative propos al, with specific focus on time-limits as 
proposed in the new initiative. (iv) Finally th e legal concepts have been clarified and a 
glossary was added in Annex. The size of th e document has been controlled as much as 
possible. 
                                                
 
10  COM proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of 
decisions and cooperation in matters relating to maintenance obligations, COM (2005) 649 final of 15 December 2005. 
11 CSES Centre for Strategy & Evaluation Services, Study for an Impact Assessment on a Draft 
Legislative Proposal on the Attachment of bank Accounts, Final Report of 5 January 2011. 
 
EN 8   EN 2.4. Consultation and expertise 
To better understand the status quo , the Commission commissioned a study on 
"Improving the enforcement of judicial decision s in the European Union: transparency of 
the debtor's assets, attachment of bank acc ounts; provisional enfor cement and protective 
measures" submitted by Prof Burkhard Hess of the University of Heidelberg in February 2004 (and covering the then 15 Member States)
12.  
On 24 October 2006, the Commission adopted a Green Paper on improving the efficiency 
of the enforcement of judgments in the EU: the attachment of bank accounts13. A total of 
68 responses to the public consultation were  received, the large majority of which 
supported the Commission's suggestion to creat e a European provisional measure for the 
preservation of bank accounts (for a summary of the replies to the Green Paper see 
Annex II).  
Empirical data supporting the pr eparation of this impact assessment was collected by the 
external study finalised in January 2011. In the context of  the external study, a meeting 
with 15 major financial institutions and the contractor took place in London on 15 June 
2010. In addition, a survey of European companies on commercial disputes and cross-border debt recovery was launched via th e European Business Test Panel (EBTP)
14, the 
results of which were published in August 2010. 
A public hearing on facilitati ng cross-border debt recovery  took place on 1 June 2010 and 
was attended by 84 participants re presenting ministries of justice, judicial authorities, law 
firms, bailiffs, academics, banks, businesses and citizens' groups. The hearing confirmed 
the results of the 2006 consultation that ther e was general support for the creation of a 
European procedure for the pr eservation of bank accounts (for a summary of the hearing 
see Annex IIIA).  
In December 2010, the Commission set up a group of private experts from a variety of 
legal professions (judges, lawy ers, bailiffs, banking in-hou se lawyers, academics) and 
representing the different legal traditions of the European Union to assist the Commission 
in its work on a legislative proposal in this area. The group met four times between 
February and April 2011.  
Finally, the Commission held a meeting with national expe rts on a preliminary draft 
proposal for a regulation on facilitating cross- border debt recovery  on 31 March 2011. 
While some details of the draft remained co ntroversial, no delegati on contested the need 
for and added value of the envisaged instru ment (for a summary of the meeting see 
Annex IIIB).  
                                                 
12 http://ec.europa.eu/civiljustice/publications/docs/enforcement_judicial_decisions_180204_en.pdf 
13 SEC(2006) 618. 
14 422 replies were received in total out of which 281 companies filled in the questionnaire 
completely. For the others, the topic was not relevant. For a summary, see Annex V .  
 
EN 9   EN 2.5. Respect of Fundamental Rights 
With the entry into force of the Treaty of Lisbon on 1 December 2009, the Charter of 
Fundamental Rights of the European Union ('the Charter')15 has become legally 
binding16. This means that the EU's institutions as well as the Member States when 
implementing Union law have to respect the rights, observe the principles and promote 
the application of the Charter in accordance with their respective powers17. Any EU 
legislation must fully comply with the prov isions of the Charter. For this reason, all 
legislative proposals proposed  by the Commission are subj ect to a systematic and 
rigorous monitoring to ensure their compliance with the Charter18. When assessing the 
impact of the envisaged initiative to improve  cross-border debt rec overy, this report will 
pay particular attention to  fundamental ri ghts in order to ensure  that the proposed 
schemes fully respect the rights and principles set out in the Charter. The main provisions 
affected by this initiative are the following: the right to an effec tive remedy (Article 47 
subparagraph 1), the right to a fair trial (A rticle 47 subparagraph 2), the right to human 
dignity (Article 1), the right to  property (Article 17), the right for family life (Article 7) 
and the right to data pr otection (Article 8).  
Right to an effective remedy, Artic le 47 subparagraph 1 of the Charter 
According to Article 47 subparagraph 1 of th e Charter – which corresponds with Article 
13 of the ECHR, everyone whose rights and freedoms guaranteed by the law of the Union 
are violated has the right to an effective remedy before a tr ibunal. In line with the case 
law of the European Court of Human Rights,  the right to an effective remedy also 
includes the right of the credit or to recover his claim within  a reasonable period of time 
and on the basis of efficient procedures19.  
Right to a fair tria l, Article 47 subparagraph 2 of the Charter 
The  envisaged initiative must  respect the fundamental righ ts of the debtor/defendant. 
Article 47 subparagraph 2 stipulates that everyo ne is entitled to a fair and public hearing. 
Inherent in this provision is the right of defe nce which includes – in the area of civil law - 
                                                 
15 OJ 2010 C 83/02, 389ss. 
16 Cf. Article 6 TEU. 
17 Cf. Article 51 (1 ) of the Charter. 
18  Communication from the Commission "Compliance with the Charter of Fundamental Rights in 
Commission legislative proposals. Methodology for systematic and rigorous monitoring" COM 
(2005) 172; Report on the practical operation of the methodology for a systematic and rigorous 
monitoring of compliance with the Charte r of fundamental rights". COM(2009) 205. 
19 European Court of Human Ri ghts, 19.3 1997, Ho rnsby v. Greece, ECHR-Reports 1997 II 
495;11.1.2001, Lunari v. Italy, ECHR-Reports 2001, xx. Fricéro, Le droit européen à l’exécution 
des jugements ; Revue des Huissiers de Justice 2002, 6 et seq.; Yessiou-Faltsi, Le droit de l’exécution selon la jurisprudence de la Cour Européenne des Droits de l’Homme : Analyse et 
Prospective, in :Normand/Isnard, Le droit processuel et le droit de l’exécution (2002), p. 195 et 
seq. 
 
EN 10   EN the right to be heard and the right to make known its views on the truth and relevance of 
the facts, objections and circumst ances put forward by the other party20.  
Right to respect of human digni ty, as enshrined in the Preamble and Article 1 of the 
Charter 
Article 1 states that human di gnity is inviolable. The envisa ged initiative must respect the 
debtor and his/her family's dignity at all le vels of the debt coll ection and enforcement 
procedures. This requires notably that the part  of debtor's assets, which is necessary to 
cover the basic living expenses of him and his family are exempt from enforcement .21 
Right to property, as enshrine d in Article 17 of the Charter 
Article 17 provides that everyone  has the right to own, use, dispose of and bequeath his 
or her lawfully acquired possessions. This includes claims which the creditor lawfully pursues against a debtor.  
Protection of personal data, Article 8 of the Charter 
Article 8(1) states that ev eryone has the right to the protection of personal data 
concerning him or her. The consequences fl owing from this right are specified in 
Directive 95/46/EC on the protection of personal data in the European Union. The envisaged initiative will need to ensure that the requirements of the Directive on the processing and retention of pers onal data are complied with.  
3. P
ROBLEM DEFINITION  
3.1. The problem of cross-border debt recovery 
3.1.1.  Introduction 
At present, a creditor seeking to recover his debt in another Member State faces 
significant difficulties. The causes of this problem are complex. They relate to the 
differences in national procedural law, diverg ing levels of efficien cy of the organisation 
of justice, additional costs triggered by cross-bo rder proceedings and linguistic barriers.   
These difficulties arise both, in the context of  a) proceedings on the merits* in which a 
court issues a final judgment on the basis of a full analysis of all factual and legal issues 
involved in the case, and b) proceedings fo r provisional measures* in which a court 
issues an interim decision such as an or der preserving a bank account on the basis of a 
summary analysis of the case.  
                                                 
20 Commentary to the Charter of  Fundamental Rights, p. 368. 
21  Council of Europe recommendation CM/Rec(2007)8 of the Committee of Ministers to member 
states on legal solutions to debt problems. 
 
EN 11   EN In line with the political mandate, this initiative focuses on facilitating to obtain 
provisional measures for preser ving a debtor's assets and on  improving the efficiency of 
enforcement of decisions in the European Union. It is limited to assets of the debtor located in bank accounts because these assets are generally the most efficient target of 
enforcement measures. In comparison to mov eable or immoveable property, the value of 
assets in bank accounts can be easily determined and can  be realised without a 
cumbersome sales procedure like a public auction.  
3.1.2.  The problem of obtaining provisiona l measures in cross-border cases 
Provisional measures such as preservation orde rs can be of crucial importance in debt 
recovery proceedings because they enable a creditor to prevent the debtor from removing 
or dissipating his assets dur ing the time it takes to obtain and enforce a judgment on the 
merits. While proceedings on the merits may take several years, provisional measures are usually issued within a ma tter of days or weeks.  
However, a creditor seeking to obtain provisi onal measures to preserve assets of his 
debtor in a cross-border situ ation currently faces additional costs and delays compared to 
preserving assets in his own Member State. The creditor is also confronted with the fact 
that the conditions for issuing a provisiona l measure differ considerably throughout the 
EU. As a consequence, the question whether he  is able to obtain a provisional measure in 
his case at all depends on th e law of the Member State where the competent court is 
located. As a result, the creditor is often eith er not able to obtain a protective order or 
does not consider it worthwhile to try.  
The problems of obtaining provisional measures  preserving a debtor's assets in cross-
border cases are particularly important with regard to assets in bank accounts. Currently, 
the internal market enables a debtor to move  his funds from one bank account to another 
almost instantly, thereby making it easy for him to escape enforcement. A creditor, on the other hand, has little chance of blocking a debtor's bank accounts abroad to secure the 
payment of his claim with the same swiftn ess. Moreover, the creditor will often have 
difficulties to find out the whereabouts of his debtor's account; these difficulties are 
aggravated in cross-border situations. As a result, many creditors are either unable to 
successfully recover their claims abroad or do not consider it worthwhile pursuing them 
and write them off. The existing possibilities  to obtain preservation orders under national 
law are currently comparatively little used by creditors for the reasons set out in Section 3.3. below. 
3.2. Stages of cross-border debt recove ry and current legal framework 
The different stages of cross-border debt  recovery can be described as follows. 
3.2.1.  Provisional measures for the pr eservation of debtor's assets  
In many Member States, the creditor can apply for a  provisional measure preserving his 
debtor's assets (or specific parts thereof) already prior to launching proceedings on the 
 
EN 12   EN merits. In all Member States, an application can  be made in parallel with the initiation of 
such proceedings.  
In most Member States, the creditor has a choice to go to the court which is competent 
for deciding the case on the me rits or to the court at the pl ace of enforcement, e.g. where 
the account is located. The jurisdiction of the court competent on the merits of the case is determined by European law, notably Re gulation Brussels I and the Maintenance 
Regulation. Depending on the specific case in  question, the competent court may be 
situated in the creditor's own Member  State or in another Member State
22. The two basic 
cross-border scenarios resulting from the ju risdiction rules are illustrated in Figure A1 
and A2. It should be noted that  a case can also involve thre e or four different Member 
States. Thus, the creditor, competent court, de btor and the account to  be preserved could 
all be located in different Member States. 
F i g u r e  A 1      F i g u r e  A 2  
Once a provisional measure has been issued by the court, it will need to be enforced to actually produce the desired effect. If the provisional measure has to be enforced in 
another Member State than the one where it was issued (i.e. in the scenario set out in 
Figure A2),  the creditor needs to have the decision declared enforceable there (in the so-
called exequatur  procedure). Under the curr ent Regulation Brussels I, exequatur  can be 
obtained for provisional measures issued in an other Member State, except if they have 
been issued without a hearing of the debtor (so called ex parte orders). This means that at 
present, a preservation order which has been issued without notifying (and thereby 
warning) the debtor that his account will be blocked is not recognized and enforced in another Member State under th e existing EU instruments.  
                                                
 
22  As a general rule, the court at the defendant's domicile has jurisdiction* although in many 
situations, the claimant can alte rnatively go to another court, e. g. at the place where the goods 
have been delivered or at the place where the dama ge occurred. If parties ha ve concluded a choice 
of court agreement – which is frequent in commercial cases – the chosen court will have 
jurisdiction. Special rules apply for consumers and maintenance creditors which are generally 
entitled to sue in their own Member State.  
 
EN 13   EN With the revision of the Brussels I Regul ation, if adopted as proposed, the current 
situation will improve in two respects: Firs t, the requirement of exequatur will be 
abolished, i.e. decisions given in one Member  State will be automatically enforceable in 
another Member State without the need for any intermediate procedure. Second, this 
regime will also apply to ex parte  orders which were issued by the court competent on the 
merits.  
While the enforceability  of preservation orders will ther efore be fully ensured under the 
revised Brussels I Regulation, their enforcement will remain governed exclusively by national law. In practice, the creditor has to  apply to the competent authority of the 
Member State where the assets are located to  take the specific steps necessary under 
national law for the enforcement of the provisional measure. A provisional order 
preserving a debtor's bank account is enforced  by serving it on the bank in accordance 
with national law. Differences in national law exist in respect of the details of procedure (see below Section 3.3.4.). National law also di verges as to whethe r and from whom the 
creditor can obtain information about the wh ereabouts of his debtor's bank account (see 
below section 3.3.2.).  
The different stages of obtaining and enforcing a preservation order and the impact of the 
revision of Regulation Brussels I and th e proposed initiative on that process are 
illustrated in Figure B: 
 
 
EN 14   EN  
Figure B 
Even when the exequatur will be abolished, th ere still remains the request of hearing the 
debtor under Regulation Brussels I if the natio nal law or the judge so requires. So the 
surprise effect will not always be achieved. Ac cording to the current  initiative it will 
possible to proceed to the enforcement withou t hearing the debtor. It is in many cases 
vitally important to have this surprise element to prevent the debtor from hiding the assets. This makes the current initiative  an effective tool for the claimant in difficult 
cases. At the same time there has to be le gal protection for the debtor, too. The balance 
between efficiency and legal prot ection will be safequarded in the current initiative by 1) 
security provided by the claimant, 2) the resp onsibility of the clai mant to initiate the 
proceedings on the substance in timelimit, 3) right of the debtor to  provide alternative 
security and 4) the liability  of the claimant to provide  the defendant appropriate 
compensation for any injury caused by the order. 
Another essential difference between the revi sed Regulation Brussels  I and the initiative 
on preservation order is, that the latter would enable minimum access to information of the bank account. The Member States should  ensure that certain minimum methods of 
disclosure will available under their national law.  
Third main difference between revised Regulati on Brussels I and the current initiative is 
that the latter provides an uniform and se lf standing European court and enforcement 
procedure. There would be provisions e.g. c oncerning the application, taking of evidence, 
the preservation of severa l or joint accounts, immunitie s on bank account attachment, 
amounts exempt from enforcement and serving the documents. This would be the first 
time to have common Union provisions on enforcement.  
In addition the current initiativ e would be "target specific":  In practice bank accounts are 
priority targets for preservation orders becau se of their high net value (no need for a 
realisation of assets). The problem is the eas y transferability of f unds on bank account. At 
the same time, legal protection of the debt or is important because the monies on bank 
accounts are often essential to ensure the livelihood of priv ate persons and are of vital 
importance for businesses. Therefore a genera l regulation on precautionary measures that 
would be applicable to all kinds of assets would not operate in be st possible way when 
preserving bank accounts, and there is need fo r an instrument whic h takes into account 
the special nature of bank accounts as  an object for preservation orders. 
3.2.2.  Proceedings on the merits 
A preservation order will have only the eff ect of blocking the money in the account 
pending the outcome of proceedings on the meri ts. The creditor will be able to actually 
get the money only by obtaining a judgment on the merits or other enforceable title. The 
stages of proceedings on the merits larg ely correspond to those outlined above for 
provisional measures with the notable differe nce that proceedings on the merits can only 
 
EN 15   EN be started in the court with jurisdiction on the merits and not, in principle, at the place of 
enforcement23.  
It should be noted that if the claimant seeks to recover a small24 or potentially 
uncontested claim, he can make use of existi ng self-standing European procedures on the 
merits which allow him to recover these types of claims in a swift, simple and comparatively low cost procedure. The exis tence of these proce dures might reduce the 
need for protective measures like preservati on orders because a judgment on the merits 
can be obtained relatively quickl y. This is particularly true in those Member States where 
the European payment order is issued in an automated procedure. In general, however, it 
will be quicker to obtain a provisional measure than a decision on the merits. The claimant would also be able to apply jo intly for a Small Claims or Payment order 
procedure and a preservation order.  
3.3. The causes of the current problem 
3.3.1.  Problem 1: Conditions for issuing pr eservation orders vary throughout the EU  
The conditions required under national law fo r obtaining provisional measures vary 
considerably under national law.
25 This makes it more difficult for creditors to obtain a 
preservation order in some Memb er States than in others.  
Differences relate for example to the level of proof required by the court to issue the 
order. For example, in the Netherlands, a pr eservation order can be obtained within a 
matter of hours on the basis of an applic ation filed by a lawyer, accompanied by an 
invoice, stating that the creditor has a claim and that there is a risk of dissipation of 
assets. On the other hand, in the United Kingdo m, a preservation order is only issued if 
the creditor submits sufficient ev idence, e.g. an affidavit by a witness, satisfying the court 
that his case has a good, although not necessari ly certain prospect of success.  
Differences also relate to the specific conditions in which a preservation order is granted. 
In most Member States, the cred itor must demonstrate that there is a serious risk that if 
the preservation order is not i ssued, the ultimate enforcement of the judgment will be 
rendered impossible. However, this criterion is  applied differently in the Member States. 
In some countries, e.g. Spain, it is handled very restrictively meaning that the creditor 
generally has to show th at the debtor is on the verge of insolvency and to explain why the 
proposed preservation order is indispensible at that specific stage. Even more 
restrictively, in Germany and Austria, the exis tence of competing creditors and the risk of 
the debtor becoming insolvent do not suffice to justify a preservation order26. In contrast, 
                                                 
23 However, in certain cases jurisdiction on the mer its lies with the courts in the Member State of 
enforcement, cf Article 22 (5) Regulation Brussels I.  
24 Up to €2.000.  
25 Hess study on improving the effi ciency of the enforcement of ju dgments in the European Union, 
p. 128ss. 
26 Hess study, precit, p. 129. 
 
EN 16   EN in France, Belgium and Luxembourg, it is genera lly sufficient to show that the debtor is 
somehow in financial difficulties.27  
Finally, differences exist with respect to th e possibility to obtai n a preservation order 
without a prior hearing of the debtor. This can be essential to safeguard  the surprise effect 
of the measure since a recalcit rant or fraudulent debtor wh ich has been warned that a 
preservation of his bank accounts is imminent is likely to move his money elsewhere. In 
some Member States (such as Spain, Portugal, Greece) the conditions for issuing the order are particularly restrictive with respect to the possibility to obtain a preservation order ex parte  and it is generally very difficult to convince the judge to waive notice to 
the debtor. In contrast, in Austria, France,  Luxemburg and the Netherlands provisional 
measures are regularly granted ex parte
28.  
Annex IV provides an overview of the differe nces relating to the conditions for issuing a 
preservation order in the Member States.  
As a result, the possibility to obtain a preser vation order in a given case or to obtain it 
without prior notice to the debtor varies cons iderably throughout the EU. This problem is 
illustrated in case studies No 1a and 1b (see section 3.5., commercial case, paragraph on 
Spain) but is equally relevant  for consumers and maintenanc e creditors. This problem is 
not addressed by any of the ex isting Union instruments.  
3.3.2. Problem 2: Difficulties to obtain information on debtor's bank account in some 
Member States   
A second problem relates to the f act that the rules on the transparency of a debtor's assets 
vary considerably throughout the European Union29 and that in many Member States 
(such as Belgium, Germany, France, Unite d Kingdom, Italy, the Netherlands) it is 
difficult, if not impossible, for a creditor to  obtain information about the whereabouts of 
his debtor's bank account if he does not have that information. However, in most 
jurisdictions30 the creditor needs to have this informa tion in order to be able to apply for a 
preservation order. The reason  for this lack of transparency is that in many Member 
States, there is no central register of ba nk accounts or other regi ster containing the 
relevant information (e.g. a ta x register) which would be acce ssible to either the creditor 
or the enforcement authorities31. It is also not possible to  obtain an order obliging the 
banks domiciled in these Member State to di sclose whether the debtor holds an account 
                                                 
27 Hess study, precit., p. 129. 
28 Hess study, precit, p. 130. 
29 See Hess study on making more efficient the enfor cement of judgments in the European Union, p. 
20 ss. 
30 With the exception of the common law countries (UK, IRL, CY) where the preservation order is 
directed against the person of the debtor hi mself and not against specific bank accounts.  
31 This is the case in the Scandinavian countries where the enforcement auth orities have access to the 
tax registers, thus being almost in all cases able to trace a debtor's bank account if the creditor does 
not have that information.  
 
EN 17   EN with them32. Furthermore costs of banks and bailiffs  are not sufficiently transparent in a 
cross-border context. This has a deterrent effect on creditors seeking to secure their claim 
abroad. 
Consequently, the creditor has to turn to private investigation agencies in order to find 
out about debtor's bank account. These services are not only costly without offering a guarantee of success because the agencies de pend themselves on the information that 
they have previously collected or which is pub licly available. This problem is particularly 
relevant for citizens trying to recover a ma intenance claim abroad and consumers having 
encountered problems in e-commerce becau se account information is usually not 
exchanged in these transactions. In a commerci al context, the letterhead of the other party 
will usually indicate at least one bank account . However, the need to trace the bank 
account of a business partner wi ll arise in situations wher e such information was not 
contained in previous correspondence or th e "official" bank accounts turn out to be 
empty. This problem is demonstrated in case studies No 1a, 1b and No 2 (see section 3.5.).  
In the area of family maintenance, the pr oblem of access to information is already to 
some extent addressed by the Maintenance Regulation which establishes a system of 
administrative assistance to creditors by cen tral authorities which are granted access to 
information held by public authorities
33. Outside the scope of family maintenance, 
however, this issue is not addresse d by any existing Union instrument.  
3.3.3. Problem 3: Costs of obtaining a preser vation order are higher   in cross-border 
cases  
Finally, the costs of obtaining and enforcin g a preservation order in a cross-border 
situation are generally higher than in domestic  cases. The revision of Regulation Brussels 
I, if adopted, will reduce the fees of cro ss-border litigation by abolishing the need to 
obtain a declaration of enforceability for a cour t decision issued in another Member State. 
This reform will save creditors about €2.000 in legal fees (court fees, lawyers' fees and 
fees for service of documents) on an EU average34. However, cross-border cases 
currently trigger additional legal costs above and beyond the costs of the exequatur 
procedure. This concerns in th e first place costs of lawyers but concerns also costs of the 
translation of documents or the costs for serving documents across borders.  
• The need to involve an additional lawyer 
If proceedings take place in a Member St ate other than the creditor's domicile, the 
creditor will need a lawyer licensed to practic e in the foreign jurisdiction to represent him 
                                                 
32 This is the case e.g. in Spain.  
33  Cf Article 61 of Regulation (EC) No 4/2009 on jurisdiction, applicable law and the recognition 
and enforcement of decisi ons and cooperation in matters relating to maintenance obligations, OJ L 
7, 10.1.2009, p. 1. 
34 Cf Impact Assessment accompanying the propos al for a regulation on jurisdiction and the 
recognition and enforcement of judgments in civ il and commercial matters (Recast) of 14.12.2010. 
 
EN 18   EN before the court. In most Member States, it is not obligatory to be represented by a lawyer 
in proceedings for provisiona l or protective measures. Neve rthelesss, the creditor will 
usually seek legal advice in order to determin e whether his case has sufficient prospect of 
success and which pieces of evidence he would need to provide to the court to obtain a 
preservation order.  
At present, it will generally be advisable fo r a creditor to be represented by a lawyer 
licensed to practice in the country where pr oceedings take place because the differences 
in the conditions and procedure for issuing preservation orders under national law are so 
significant that a foreign lawyer would not be sufficiently familiar with them. The creditor will usually not cont act the foreign lawyer directly  himself but charge his local 
lawyer or in house legal counsel with the task  to identify a compet ent colleague abroad 
and to supervise and liaise with him on this  particular case. Cons equently, cross-border 
litigation increases the bill of lawyers' fees in comparison to domestic cases because of the need to involve one lawyer per jurisdiction. Even if the competent court is situated in 
the creditor's own Member State, he will still need to engage foreign lawyers in order to 
deal with the enforcement of th e subsequent judgment abroad.  
The problem of lawyers' fees is illustrated in case studies 1a and 1b and 3 (see section 
3.5.). The situation is aggravated in situat ions (as illustrated in case study 1b) where a 
creditor seeks to obtain pres ervation orders simultaneously against several defaulting 
debtors located in different Member States.  
• Translation costs 
Costs of translation and the costs of service of documents abroad add to the bill. 
Currently, all documents have to be translated  into the official language of the Member 
State where the court proceedings take place; often large amounts of supporting 
documents need to be translated. The same is true for the preservation order and any 
accompanying documents (such as a transcript of  a hearing) which have to be served on 
the bank and the defendant in a language which they understand. Th e envisaged initiative 
does not purport to eliminate these costs but can contribute to reducing them (see below 
section 7.2. b). 
3.3.4. Problem 4: Differences in national enforcement systems and length of enforcement 
procedures in Member States  
Finally, in practice, delays in enforcemen t procedures and dive rgences in national 
enforcement systems constitute a serious problem for creditors seeking to enforce a judicial decision like a preservation order.  
The speed of enforcement is particularly rele vant for provisional and protective measures 
the effectiveness of which by definition depe nds on a swift implementation. There is no 
specific data on the time it takes to enforce provisional measures. The Council of Europe 
collected data on the time for enforcement of final judgments and part of this data may 
 
EN 19   EN give indications as regards the en forcement of provisional measures35. This concerns in 
particular the data on the time for service of documents which varies considerably within 
the Member States. The table below shows th at even on a domestic level it can take 
significant time to serve a document. In cross-border situations, delays will generally be even longer: 
 
Timeframe for notification of a court decisi on on debt recovery to a person living in 
the city where the court is sitting36 
 
Between 1 and 5 days:   Austria , Estonia, Luxembourg 
Between 6 and 10 days: Finland, France, Hungary, Latvia, Lithuania  
Between 11 and 30 days: Bulgaria, Ireland, Netherlands, Poland, Slovakia, Spain, 
Sweden 
More than 30 days:  Czech Republic, Greece 
 
Differences in national enforcement systems al so cause problems for creditors in cross-
border situations which result in  additional delays for enforc ement or even inexecution of 
judicial decisions. One key difference relates to the authorities which are competent for 
enforcement in the Member States37. In some Member States, enforcement is carried out 
by bailiffs acting outside the court system38, in others this is done by the court39 or by a 
central administrative agency40. A creditor coming from a country with one system of 
enforcement, will have difficulties to find out who he has to address if wanting to enforce in a Member State with another system. In cross-border situati ons, frictions between 
systems frequently occur in practice with th e result that e.g. service of a preservation 
order on a bank in a different Member State is delayed or that a foreign order is not 
implemented because the recipient bank cons iders that it has not been properly served
41. 
                                                 
35 Existing data from the Council of Europe relating to national enforcement procedures relate to the 
definitive enforcement of a judgment. The figures cannot be transposed fully to the enforcement of a provisional measure like the preservation of a bank account because the procedural steps 
necessary to enforce such a measure are consider ably reduced compared, e.g. to the enforcement 
against immoveable property which has to be sold in  a public auction. It is also not clear from the 
data to what extent the delays are caused by  enforcement against de btors in insolvency 
proceedings where funds can only be distributed to  the creditors once the insolvency administrator 
has determined all claims against the debtor, if necessary by conduc ting court proceedings.  
36  Council of Europe, European Commission for the efficiency of Justice (CEPEJ), European 
Judicial Systems, edition 2010, Table 13.17. 
37 See the comparative analysis of national repo rts by B. Hess in Andenas/Hess/Oberhammer, 
Enforcement agency practice in Europe, 2005, p. 31ss. 
38 This is the case in France, Belgium, Luxembur g, the Netherlands, Portugal, Scotland and many 
Eastern European countries.  
39 This is the case e.g. in Austria, Spain and Denmark. 
40 Sweden and Finland. 
41 Examples given by the members of the expert group in oral discussion.  
 
EN 20   EN Differences also exist as to who is responsible for serving the order on the bank (the 
creditor or the issuing court), how much tim e the bank has to implement the order, how 
and when the creditor is info rmed that the order has actua lly caught funds and how long 
the order remains in force. 
3.3.5. Reasons for suboptimal use of preser vation orders in cross-border disputes 
To date creditors are less enclined to seek a preservation order in another country than in 
their own country. The following factors contributing to the smaller number of 
preservation orders used in cross-border di sputes vs. domesting disputes have been 
identified as follows, as well as thei r relative contribution to the problem.  
Table: Reasons for suboptimal number of pr eservation orders in cross-border disputes 
Factors Contribution to the problem 
(order of magnitude) 
1. Barriers/costs/delays a ddressed by the revision 
of Regulation Brussels I such as those related to exequatur + (only part of the problem 
since the general revision of Regulation Brussels I cannot address the specific issue of a cross-border preservation order) 
2. Problems/costs/delays being addressed by this initiative (varying conditions, lacking information on debtor's assets, lengt h etc, including the 
problem of poor awarene ss to be addressed by 
information campaigns) +++ (major contribution as 
remaining obstacles can only be addressed efficently by a specific instrument) 
This table shows that the revised Regulation Br ussels I will improve the current situation 
only to a limited extent, since as a genera l measurethe Regulation Brussels  is not 
designed to address this speci fic issue) and that this initiative will add a noteworthy 
benefit on top of the effects of the revised Re gulation Brussels I. Even with the current 
initiative, there may remain certain factors st ill making the use of preservation orders in 
cross-border disputes somewhat more burde nsome than domestic ones, such as costs 
related to actual recovery, but these are only marginal.  
3.4. Scale of the problem 
3.4.1.  Who is affected? 
Problems of cross-border debt recovery affect in the first place businesses which are 
trading or providing services in other Member St ates. It is particularly relevant for SMEs 
which generally have limited financial resource s and are less likely to have recourse to 
the available commercial options for reduc ing the risk of non-payment like credit 
 
EN 21   EN insurance or factoring. The problem is also relevant for companies currently not engaged 
in cross-border trade to the extent they ar e put off from doing so by the difficulties of 
debt recovery abroad. 
The problem concerns also, albeit to a lesser extent, consum ers ordering goods or 
services from abroad if payment was made in advance but the goods were not delivered 
or services were not supplied according to the contract.  
Finally, the problem affects individuals havi ng to pursue claims for family maintenance 
from a debtor, e.g. a parent or former spous e, domiciled in another Member State.  
3.4.2.  Companies 
According to the 2010 Intrum Justi tia European Payment Index (EPI)42 there has been an 
increasing tendency for businesses to write-off bad debts in Eu rope. It is estimated that 
on average, 2.6% of the annual turnover of European companies is written off43. Applied 
to the volume of intra EU trade, this means that more than €55bn of cross-border debt is 
annually written off by European companies44.  
The major part of the written-off this debt is not recoverable at all – e.g. because the 
debtor is bankrupt, the debt has not a good rank ing as compared to other creditors or the 
creditor loses his case on the merits. A furthe r part of it can be recovered by execution 
against moveable or immoveable goods rather than against bank accounts – e.g. in case of 
machinery sold under retention of title. From th e amount of bad debt that is in principle 
recoverable from bank accounts, only part can be secured by preservation orders because 
the conditions for obtaining a preservation order will not be fulfilled in  all circumstances. 
Finally, only part of the amount secured by a preservation order will be recovered in the 
end, e.g. because the creditor may lose the case on the meri ts or because the debtor 
successfully managed to contest the measure. Figure C illustrates the interrelation between these different categories of debt but does not purport to refl ect the actual size of 
these categories. The amount of cross-border ba d debt that can potentially be secured can 
be estimated at between €1.12 and €2bn, as it wi ll be presented below in more detail. 
                                                
 
42  2010 Intrum Justitia Eu ropean Payment Index (page 6). Intrum Justitia is a credit management 
services company with 3.400 employees se rving over 90.000 clients in 22 European 
countries. The 2010 survey obtained responses  from 6.000 businesses in 25 European 
countries. The percentages relating to written-off amounts are calculated as a percentage of turnover. According to the 2010 report, the averag e level of write-offs is generally above 3% 
in the newer EU Member States and below this in the older Member States.
 
43 CSES study, p.25. It should be noted, that the figure of 2,6% covers both domestic and cross-
border bad debt. There seems to be no data available relating only to the recovery of cross-border 
debt. There is qualitative evidence that the ratio of bad debt is higher in cross-border than in 
domestic cases because of the difficulties causi ng problems for recoveri ng debts in another 
Member State (outlined above at point 3.3). However, on the basis of the existing data it is not 
possible to quantify this difference. 
44 For details see Annex VII. 
 
EN 22   EN  
Figure C 
At present based on the EBTP survey, it can be estimated that ar ound 20% of the 5 Mio 
companies engaged in the Single Market have been involved in a commercial disputes of 
cross-border nature45. This creates a potential of 1 m illion businesses appearing thus to 
have problems in cross-border payments and debts. Relatively few make use of the 
possibility to apply for a prov isional measure preservation thei r debtor's bank accounts in 
cross-border situations. According to the EBTP survey, only 11,6% of companies 
engaged in cross-border trade have applied fo r a preservation order to secure payment of 
a cross-border claim as opposed to 19,2% which have made use of this possibility in a 
domestic context46. In about half of the cross-border applications (53.3%), the order was 
actually granted47. This success rate is significantly lower than for applications in 
domestic cases (almost 65%). Evidence from the European Business Test Panel suggest that if the procedure for obtaining  a preser vation order was made easier, this type of 
procedure would be us ed much more often
48. 
According to sample data from 13 European financial institutions, the average amount of 
a cross-border preservation order is about €20.00049.  
On the basis of the figures set out above, th e amount of debt which can be secured per 
year can be estimated at just over € 1,2 bn50. As a result of the revision of Regulation 
Brussels I, it is estimated that the number of companies taking advantage of preservation 
                                                 
45 EBTP survey question 10a. 
46 EBTP survey question 17. 
47  EBTP survey, question 19b. 
48  EBTP survey question 23 
49  CSES study, Chapter 4.2.2 page 54, 55 on the basis of sample data from 13 European financial 
institutions.  
50 11.6% x 1 Mio companies experiencing cross-border dispute, i.e. 116.000 companies having 
applied bank attachment; 61.828 companies obtained a bank attachment covering a total of € 1,236 
bn.   
 
 
Total bad debt 
Debt recoverable 
from bank  accounts  Recoverable bad 
debt 
Debt actually 
recovered Debt  
frozen in bank accounts
 
EN 23   EN orders in a cross border situati on would increase to some extent , leading to the increase of 
the debt preserved in the order of magnitude  of 10%. If the current legal framework for 
obtaining and enforcing preservati on orders in a cross-border situation were significantly 
improved, the proportion of companies resorting to this remedy in cross-border situations 
(initially 11,6 %) could further increase and pot entially over time reach the one using it in 
domestic situations (i.e. 19,2%). This woul d represent additional 65,5 % of recoverable 
debt. For the purposes of scale-up estimates, this figure was narrowe d at 60% from which 
further 10% have been deducted as the al ready positive impact expected from the 
revision of Regulation Brussels  I. On this basis, the maximum probable amount of cross-
border debt not being currently recovered due  to the problems being addressed could be 
estimated to be around 50% higher - in a ddition to the 10% gain from the revised 
Regulation Brussels I - at almost €2bn – i.e. €1,2 bn + €0,12 bn (10% in relation to 
Regulation Brussels I) + €0,6 bn (50% in relation to the curr ent initiative). 
A calculation based on an upscale of the sample data from 13 European banks leads to a 
result of similar scale. However, when analysing these figures it has to be borne in mind that the banks were not able to provide ex act data on the number and value of cross-
border bank attachments but merely estimated  that the proportion of these attachments 
would amount to about 1% of all attachments. On this basis, it has been estimated that there are about 34.000 cross-bord er bank attachments per year  amounting to a total of 
€679 Mio 
51. As a result of the revised Regulation Brussels I this number will increase to 
some extent, leading to the in crease of the debt preserved by about 10%. Following the 
same reasoning as above, on the basis of th ese figures, the maximum probable amount of 
cross-border debt not being recovered due to the problems being addressed  can be 
estimated at about €1.12 bn52- i.e. €679 Mio + €68 Mio (10% in relation to Regulation 
Brussels I) + €373 Mio (50% in rela tion to the current initiative) 
3.4.3.  Consumers 
According to recent Eurobarometer surveys, consumers are still reluctant to shop cross-
border. Today only 20% of European citizens order goods or services from abroad; only 
8% undertake cross-border e-commerce. 14%  of consumers shopp ing at a distance 
encountered problems w ith the transaction53. About three-quarters of  those complained to 
the seller or service provider, but only half of those whose re quest was not satisfied, took 
further action. A major concern of consumers is  that their rights will not be sufficiently 
protected if a problem arises. Ov er half of them consider that  it is difficult to access civil 
                                                 
51 CSES study, p. 57. 
52  It is difficult to determine which estimate is mo re accurate. In the EBTP survey, certain questions 
were only answered by relatively few compan ies which means that one or two companies can 
create disproportionate variation. At the same tim e, the estimate of 1% cross-border attachments 
by the banks could be equally inaccurate given that  banks do not identify cros s-border situations in 
their statistics. 
53  2009 Eurobarometer survey; CSES study Data co llection and impact analysis – Certain aspects of 
a possible revision of regulation 44/2001 (to be published), p. 128 ss; see also the 2011 
Eurobarometer survey on consumer empowerment. 
 
EN 24   EN justice in another EU Member State and one  in two thinks that  the EU should adopt 
additional measures to help them for this pur poses. This situation will improve somewhat 
due to the revision of Regulation Brussels I. 
3.4.4.  Maintenance creditors 
On the basis of an estimated 4 million househ olds with children and a parent who is a 
citizen from another EU Memb er State, a divorce rate of 40% and average marriage 
duration of 12 years, the number of mainte nance claims in a given year has been 
estimated to be around 134.00054. On the assumption that 50% of claims are not settled, 
and therefore can potentially be subject to le gal action, the number of 'problematic' cross-
border maintenance claims could be up to 67.00 0. Assuming that the average net annual 
earnings of a spouse in the EU27 is ar ound €20.000 per year, the average size of a 
maintenance claim, estimated at 20% of earnings55, would be around €4.000 per year. 
Thus, the monetary value of 'problematic' cross-border maintenance claims can be 
estimated to amount up to €268 million per year. However a considerable part of this amount will not need be preserved be cause it is directly enforced.  
The situation for maintenance creditors will improve to some extent due to the 
Maintenance Regulation which replaces Regul ation Brussels I in this specific field. 
3.5. Illustration of the problems 
The following case studies are based on the as sumption that the revi sion of Regulation 
Brussels I is adopted as proposed by the Commission, i.e. that the exequatur  procedure 
has been abolished for judgments in civil and commercial areas with few exceptions
56 
and that provisional measures issued by the court competent on the merits in one Member 
State are automatically enforceable throughout the EU even if they have been issued 
without a prior hearing of the debtor. 
3.5.1.  Companies 
Case Study 1a: Basic Commercial Case 
A Belgium-based SME negotiates to supply a German discounter with €20000 worth of 
goods. Some time after the contract is si gned and the Belgian company has started 
                                                 
54 Commission Impact Assessment accompanying the proposal on jurisdiction, applicable law, 
recognition and enforcement of decisions and cooperation in matters relating to maintenance 
obligations of 15.12. 2005, SEC (2005) 1629 p. 9., data updated EUR27, 2010. 
55 Commission Impact Assessment accompanying the proposal on jurisdiction, applicable law, 
recognition and enforcement of decisions and cooperation in matters relating to maintenance 
obligations of 15.12. 2005, SEC (2005) 1629 p. 9., data updated EUR27, 2010. 
56 The revision of Regulation Brussels I does not abolish exequatur in defamation and collective 
redress cases; moreover the proposals for Regulations on jurisdiction, applicable law and the 
recognition and enforcement of successions and matrimonial property regimes respectively do not 
propose the abolition of exequatur in these areas.  
 
EN 25   EN delivery, the German discounter falls behind with payment. After numerous fruitless 
contacts with the German client, the Belgia n company decides to try to obtain a court 
order preserving the debtor’ bank accounts for the amount of the invoice, in view of 
securing further payment. 
According to the rules of Regulation Brussels I, the Belgian company is obliged to go to 
court in Germany. The company asks his lawyer to take contact with a German lawyer to 
help assemble the necessary evidence requi red by the German court, to support its 
application and to represent it.  
In Germany, the creditor spends about €4.000 in legal fees57. The procedure leads to a 
preservation order being gr anted against the debtor. 
In addition, the Belgian SME ha s to pay an amount to its Be lgian lawyer which has been 
charged with preparing the evidence, identif ying the foreign lawyer, liaising with him 
throughout the procedure, coordinating the ev idence to be submitted in the proceedings. 
The bill from its Belgian lawyer amounts to about €2.000. Eventually the preservation 
order is granted by the German court. It can be implemented to the debtor's bank account 
and notified afterwards to the debtor. Fo llowing discussions with his bank and the 
creditor, the debtor decides to  pay the debt in view of suspending the effect of the 
preservation order. As an alternative, the debtor may decide not to pay. Following the 
final judgment on the merits the creditor will need additional lawyers for the enforcement 
part. The case study does not distinguish the costs of lawyers for the preservation order 
and the enforcement phase which is outside of the scope of the proposed instrument. 
Overall, the Belgian SME had to invest mo re than €6.000 to be able to block €20.000 
pending the outcome of proceedings on the subs tance. If the SME has no sufficient cash 
flow to cover costs of proceedings – as a rule  lawyer’s fees are to be partly paid in 
advance and legal aid schemes are not applicab le to legal persons- eventually it will 
decide not to sue its claim further. 
 
Case Study 1b: Complex Commercial Case  
A French-based SME negotiates to supply a German-headquartered multinational with a 
total €600000 worth of goods. The German company wishes delivery to be made to its 
subsidiaries in UK, Spain and Holland and ther efore contracts are entered into directly 
between the French company and the UK, Sp anish and Dutch subsidiaries specifying 
equal deliveries for € 200.000 respectively in  ten tranches of €20.000 in each of those 
countries. Since the French company as an SME has limited market power, it is not able 
to impose its standard choice of court agre ement in favour of French courts on its 
                                                 
57 For a detailed explanation of the costs involved, see Annex VI. 
 
EN 26   EN business partners. Instead, it was agreed to le ave this question to be determined by the 
rules of Regulation Brussels I.  
Some time after the contracts are signed and the French company has started deliveries, 
the three subsidiary companies fall behind with  payments for one of the tranches, i.e. for 
a total of 60.000. The French company then discovers that the German client and its 
subsidiaries have a habit of  defaulting and avoiding judg ments by transferring assets 
between related companies in different countrie s. In the course of its dealings it has 
become aware of the bank accounts of each of the subsidiaries in their respective 
countries. After numerous fruitless contacts wi th the German client and its subsidiaries, 
the French company decides to try to obtai n court orders preserving the subsidiaries’ 
bank accounts in order to ensure that any ju dgments it succeeds in eventually obtaining 
against them can be enforced and will not be rendered valueless by the disappearance of 
any assets.  
Since according to the rules of Regulation Brusse ls I, jurisdiction lies with the courts at 
the place of delivery of the goods, the French co mpany is obliged to go to courts in the 
UK, Spain and the Netherlands to obtain pr eservation orders over the respective bank 
accounts in each country. The company asks his la wyer to take contact with an English, 
Spanish and Dutch lawyer to help assemble the necessary evidence required by the courts 
in each country to support its a pplication and to represent it.  
In the UK, the creditor spends about 3.040 GBP (€3.580) in legal fees58. The procedure 
leads to a preservation order being granted against the UK subsidiary. 
In Spain, the French SME invests €4.200 in le gal fees to obtain a preservation order. 
However, in the course of the proceedings, it learns that on the basis of the evidence it 
can present to the court in its case, it is not possible to obtain a preservation order ex 
parte, i.e. without th e Spanish company being heard prior to the order being issued. As a 
consequence, the Spanish subsidiary was warned  of the attempts to block its accounts and 
emptied its account before the preservati on order could be implemented. As a 
consequence, the SME is not able to r ecover €20.000 from the Spanish subsidiary. 
In the Netherlands, the French SME pays about € 2.500 in, legal fees to obtain a 
preservation order against th e bank account which was indica ted on the letterhead of the 
Dutch subsidiary as well as on its homepage. However, it turns out that this account does 
not contain funds sufficient to cover the full am ount of the order; th e balance is at €5.000. 
The French SME suspects that the Dutch company has other accounts from which it 
manages its cash flow. However, it is unable to  find out the details of these accounts. As 
a consequence, it is only able to block €5.000.  
In addition to the costs incurred in each of  the countries, the Fren ch SME has to pay a 
significant amount to its French lawyer wh ich has been charged with preparing the 
                                                 
58 For a detailed explanation of the costs involved, see Annex VI. 
 
EN 27   EN evidence, identifying the forei gn lawyers, liaising with th em throughout the procedure, 
coordinating the evidence to be submitted in the proceedings in the different Member 
States etc. The bill from its Fr ench lawyer amounts to about €5.000. 
Overall, the French SME had to invest more than €15.000 to be able to block €25.000 
pending the outcome of proceedings on the substance.  
3.5.2.  Consumers 
Case Study 2: Consumer Case  
Mr B living in Lille, France has ordered on the Internet – through a website registered in 
Belgium - various goods for a total amount of 500 Euros. The payment was made by 
credit card at the time of the order. The time of delivery of the goods announced on the 
website passes and he never received th e goods. However, when Mr B checks his 
accounts statements, he discovers that the purchase price has been deducted from his 
credit card. Following unsuccessful e-mail reminde rs and attempts to contact the trader 
under the phone number indicated on the website, Mr B decide s to go to court to get his 
money back. . 
Since the claim is under 2.000€, Mr B follows the simplified European procedure for 
small claims59. He starts the procedure by filling in a standardized form (attaching all the 
relevant documentation) and lodging th em to the competent French court60. There are no 
court fees payable in France for this procedure. There is  no need for Mr B to be 
represented by a lawyer before the court. The trader does not de fend himself in the 
proceedings and eventually a de fault judgment is issued.  
Mr B, despite  the benefits of the EU fast -track proceedings for small claims, when he 
wants to enforce his judgment in Belgium, he  finds out that this procedure does not cover 
enforcement as such, which is a matter for national law. He contacts a bailiff and is told 
that a preservation order procedure was th e most promising means to recover his 
monetary claim in his case but that he woul d need to identify where the debtor's bank 
account(s) are located. Moreover, he would have to pay a considerable amount in bailiff's 
fees for notifying the measure to the bank and the debtor  as well as bank fees for 
implementing it. Mr B returns to the trad er's website but no account information is 
provided there. The bailiff expl ains to him that different in formal means of finding out 
the relevant information could be tested wh ich would cost €20 per hour; he would need 
approximately 6 hours. Moreove r, since the trader is domiciled in Antwerp, the 
documents from the French court would need to  be translated into Flemish in order to 
apply for enforcement measures  in that part of Belgium which costs between €20 and €30 
per page. Overall, the procedure would cost Mr B more than the amount of the claim. 
                                                 
59  Regulation (EC) No 86 1/2007 of the European Parliament and of the Council of 11 July 2007 
establishing a European Small Claims Procedure, OJ L 199, 31.7.2007, p. 1. 
60 Under Regulation Brussels I, consumers are entitle d to sue a foreign seller of goods at home.  
 
EN 28   EN Given that he is not certain to get his €500 b ack from the trader, Mr B does not want "to 
throw good money after bad" and decides not to try to enfo rce his judgment through a 
preservation order in Belgium. 
 
3.5.3.  Maintenance creditors 
Case Study 3: Matrimonial Case  
Ms C living in Madrid, Spain separates from he r partner who decides to return back to 
Italy where he originally came from. This leav es her in a difficult position because she is 
trying to bring up a child al one and without the necessa ry financial support.  
After contacting her former partner many time s asking for money to help cover the cost 
of bringing up the child, Ms C is advised by a lawyer to obtain a maintenance order. 
While proceedings are pending, she learns that her former partner is likely to move to 
Denmark to take up a job there and is advise d by her lawyer to s eek a preservation order 
to ensure that money is kept in her former partner’s account in Italy pending the outcome 
of the maintenance proceedings in Spain.  
Ms C returns to the court in Madrid and applie s for a protective order. Given that Spanish 
law does not allow ex parte orders, Ms C’s form er partner is notified that an application 
has been made but he does not contest the case and the court rules in her favour. Ms C 
hires a lawyer in Italy to deal with the enfo rcement of the Madrid c ourt's order. He also 
applies for a disclosure order of the maintenance debtor's bank accounts in Italy. This 
involves costs amounting to about €200 in court and bailiff fees and €60061 in lawyer's 
fees. These costs represent a significant proportion of the outstanding amounts of 
maintenance of about €3.000 for which sh e obtained a preser vation order.  
At the time when the order preserving the account  of her former partner is enforced in 
Italy her former partner has moved to Denmark. The bank where his account in held in 
Italy confirms that the balance has been tran sferred to another institution in Denmark. 
Having already incurred considerable cost s in pursuing the cas e through the Italian 
courts, Ms A decides not to take the matter any further. 
3.6. Need for action at EU level 
3.6.1.   Does the EU have the power to act? 
According to Article 81 TFEU, the Union sh all develop judicial cooperation in civil 
matters having cross-border implications. Th e European Parliament and the Council are 
entitled, particularly when necessary for the proper functioning of the internal market, to 
adopt measures aiming at ensuring i.a. the mutual recognition and enforcement of 
                                                 
61 Legal costs may vary from € 100 to € 4000 depending on the amount claimed. 
 
EN 29   EN judgments between Member States (paragraf 2 lit a) and the eliminat ion of obstacles to 
the proper functioning of civil proceedings, if  necessary by promoting the compatibility 
of rules on civil procedure applicable in  the Member States (paragraf 2 lit f). 
Any new European instrument on the pres ervation of bank accounts in cross-border 
situations would be a matter of recognition a nd enforcement of a judicial decision and as 
such be covered by paragraf 2 lit a) of Artic le 81. A European instrument in this area 
would also eliminate the obstacles to the pr oper functioning of civil proceedings in cross-
border cases which are caused by the differences  in national procedural laws, hence being 
covered by paragraf 2 lit f) of Article 81.  
3.6.2.  Subsidiarity 
The problems outlined above (see section 3.3. above) have a clear cross-border 
dimension and they cannot be adequately  attained by the Member States alone. 
Although theoretically possible, it is highly unlikely that Me mber States would undertake 
a concerted action to align their legislat ion on the preservation of bank accounts which 
would make EU action unnecessary. The issue of  enforcement has never been the subject 
of international agreements or model laws put forward by internati onal organisations and 
there is no indication that an international in itiative would materialise in the foreseeable 
future. Moreover, even if this were the case,  the differences of the current enforcement 
systems in the EU make it highly unlikely that agreement on a common approach be 
reached between Member States within a reasonable time, notably given that any 
agreement outside the European legislat ive process would require unanimity.  
4. OBJECTIVES  
The overall objectives of the ini tiative are to contribute to the development of the EU’s 
internal market and to the Europe 2020 Strategy for Growth62 and to contribute to the 
creation of a genuine European area of ci vil justice in the ar ea of enforcement.  
The general objectives  of this initiative are to: 
• Facilitate the recovery of cross-border clai ms for citizens and busin esses, particularly 
SMEs; 
• Increase confidence of traders and improve payment morale of debtors in cross-border 
situations; 
                                                 
62  At the European Council meeting on 26 March 2010, European Union leaders set out their plan for 
“Europe 2020”, a strategy to enhance the compe titiveness of the EU and to create more growth 
and jobs. http://ec.europa.eu/europe2020/index_en.htm 
 
EN 30   EN • Making it easier to recover cross-border debts, reduce the risks involved in cross-
border trade and encourage more cross- border business activity; 
• Improve the efficiency of enforcement of judgements in civil and commercial matters 
concerning cross-border disputes. 
The specific objective  is to increase effectiveness of the procedure for cross-border  
preservation orders for SMEs, consumers and individuals by: 
– Enabling creditors to obtain preservation or ders or attachments on the basis of the 
same conditions irrespective of the country  where the competent court is located; 
– Allowing creditors to obtain information on the whereabouts of their debtors' bank 
accounts; 
– Reducing costs and delays for creditors seek ing to obtain and enforce a  preservation 
order in cross-bor der situations. 
– Increase awareness of creditors and debtor s that a European procedure is available 
5. DESCRIPTION OF POLICY OPTIONS  
Five main policy options have been defined in  view of promoting th e objectives outlined 
above. The analysis will focus at this stage only on the high level pol icy options, i.e. the 
respective merits of doing not hing, creating a se lf-standing European procedure or 
harmonising national law. Once the preferred hi gh-level option is identified, further sub-
options will be discussed.  
5.1. Option A: Status quo after revis ion of Regulation Brussels I 
Under this option, the Commission would not take  any action in addition to the proposal 
for a revision of Regulation Brus sels I adopted in December 201063. This option 
assumes that all changes proposed to Regula tion Brussels I whic h are relevant in the 
context of this analysis will be enacted by the European legislator.  This means that 
under Option A, the current intermediate pr ocedure required fo r rendering a court 
decision enforceable abroad (the so-called exequatur  procedure) would be abolished and 
all court decisions given in one Member St ate would be automatically enforceable in 
another Member State. Moreover, the revisi on of Regulation Brussels I would make 
protective measures including preservati on orders on bank accounts automatically 
enforceable in another Member State if they have been granted by a court having jurisdiction on the substance of the case. This  is also the case for orders which are 
granted without a prior hearing of the debtor ( ex parte ), provided that the debtor has a 
possibility to challenge the order in the Member State of origin.  
                                                
 
63 COM (2010) 748 final of 14 December 2010. 
 
EN 31   EN  
Under this option, a creditor could apply for a preservation order either in the Member 
State where the court with jurisdiction of the substance is situated or in the Member State 
where the bank account to be preserved is lo cated (see section 3.2. above for details on 
the different stages of the procedure). The conditions for issuing the preservation order 
and the procedure for enforcing it would be exclusively governed by national law. 
European law would determine which court has jurisdiction on the substance of the 
matter (and thereby also jurisdiction for issui ng a preservation order) and ensure that a 
preservation order issued in one Member St ate would be automatically enforceable in 
another Member State.    
5.2. Option B: Creation of a Euro pean Account Preservation Order 
This option would create a new and self-sta nding European procedure with protective 
effect only which would be available to citizens and companies in addition to existing national procedures for provisi onal preservation orders. Th e creation of a self-standing 
European procedure would supplement exis ting remedies under national law without 
requiring EU Member States to modify thei r national law on civil procedure or their 
enforcement systems. The European procedur e would regulate the procedure for issuing 
the preservation order as well as rules for its implementation by the bank holding the account targeted. In line with the approach take n in the large majority of Member States – 
albeit with differences in detail, the possibl e instrument would require the creditor to 
show that he has a good prospect of succeeding his case on the substance, i.e. that his claim is well-founded, and that ther e is the risk of dissipation of  assets by the debtor if the 
measure is not granted. The European Order will provide measures enabling the creditor 
to disclose debtor's account. 
5.3. Option B1: Bank attachment - Crea tion of a European Order for  
preservation of bank accounts combined with  transfer of monies to the 
creditor  
This option  would provide for a protective order like option B but, in addition, contain 
rules providing for the transfer of the monies  blocked to the cred itor once a judgment on 
the merits has been issued by the competent court. This is already possible in some 
Member States were a previously granted preservation order is switched into a bank 
attachment under certain conditions that are set out by national law. For the protective 
part of the European Order, the same features as for option B would apply. 
5.4. Option C: Harmonising national rules for the preservation of bank 
accounts  
This option would harmonise the main elements  of the national rule s of civil procedure 
for the preservation of bank accounts in cr oss-border cases by way of a European 
directive. It would harmonise the main el ements of the procedure for issuing and 
implementing the order – i.e the conditions for application, the delays, the minimum 
 
EN 32   EN information on the debtor's account required, th e rules of evidence, the hearing of the 
debtor, the right of appeal, se rvice of the order on the bank and the obligation of the bank 
to report whether it caught any funds. It would oblige the Member States to implement 
common European rules for the procedure issuing the preservation order and its 
implementation by the banks into their natio nal legal systems. It would also oblige 
Member States to provide a mechanism allowing a creditor or the enforcement authorities to trace his debtor's bank accounts. It would be  left for the Member States to decide 
whether to adopt the same rule s for internal purposes or wh ether to have two parallel 
systems for the issue and implementation of preservation orders.  
5.5. Option C1: Harmonisation of national rules for bank attachment, i.e. the 
preservation of bank accounts and for th e transfer of funds to the creditor  
As option C, this option would harmonise nati onal rules in cross-border cases by way of a 
European directive. However, option C1 w ould go further than option C and cover (like 
option B1) both the granting of a protective pr eservation order and the transfer of funds 
from the preserved account to the creditor onc e a judgment on the merits has been issued 
by the competent court. It would be left for th e Member States to decide whether to adopt 
the same rules for internal purposes or whethe r to have two parallel systems for the issue 
and implementation of preservati on orders. For the protective part, the same features as 
for option C would apply.  
6. D
ISCARDED POLICY OPTIONS  
Option B1  (Bank attachment: Creation of a European Order for the preservation of bank 
accounts as well as for th e transfer of funds to the creditor) and option C1  
(Harmonisation of national rule s for the bank attachment, i. e the preservation of bank 
accounts and for the transfer of funds to the creditor) would both regulate not only the 
granting and enforcement of a preservation or der but also the enforcement of the final 
judgment on the merits which would consist in transferring the funds blocked to the 
creditor. 
Both options would further reduce the cost of  cross-border debt re covery by facilitating 
the enforcement of the final judgment. To date, enforcement costs vary widely between Member States. This is due to different sche mes of enforcement and different systems of 
professionals (for example independent ba iliffs, court’s agents, State officers or 
Enforcement Authorities). There is no data on the specific co sts of enforcement as this 
issue is not covered by the study and th e proposed initiative. These options have 
nevertheless been discarded because they would cut too deeply into areas of national legal systems which have so far been left  untouched by European law. A harmonisation 
of the rules for transferring th e preserved assets to the cred itor would interfere heavily 
with fundamental principles of national enfo rcement and insolvency law. This concerns 
in particular the treatment of competing creditors where significant differences exist 
between Member States. Some Member States have adopted a "first come first served" 
principle whereby the first creditor to bloc k the account has prior ity over subsequent 
 
EN 33   EN creditors. Other Member States follow a "g roup principle" or co llective distribution 
schemes which are more akin to insolvency pr oceedings and deny the pr iority of the first 
creditor. Matters are complicated by the fact  that within these two main approaches 
individual differences exist, relating, for example to the event which determines the 
priority of the first creditor.  
The harmonisation of these priority rules in  the limited scope of an instrument on bank 
accounts would create costly and confusing fric tion between European and national rules.  
It also has to be borne in mi nd that this initiative constitute s the first inroad of European 
law into the domain of enforcement of decisi ons in civil and commercial matters which is 
to date governed exclusively by national law.  In line with the approach of the 2000 
Programme on Mutual Recognition, it was considered preferable to achieve progress in this area in stages
64 and to limit the reflection at this point in time to an instrument with 
provisional/protective effect only. The stage of final enforcement could be tackled once 
this initiative is successfully operating in practice. 
This approach is confirmed by the results of  the public consultati on. Most of those who 
have been consulted consider that the eventu al enforcement of any judgment given in the 
substantive proceedings should remain subject to national rules. Feedback from the key 
stakeholder survey also suppor ted this view that any European procedure should be 
limited to being a protective order. As to th e public hearing, although some participants 
suggested that with momentum having now be en developed to bri ng about change, there 
was a ‘window of opportunity’ to also tackle  the rules of enforcing final judgments, a 
large majority of participants argued that any European instrument should be limited to 
being a protective measure.  
7. EVALUATION OF RETAINED POLICY OPTIONS AND IMPACT ASSESSMENT  
7.1. Option A: Status Quo after revis ion of Regulation Brussels I 
N.B. The assessment of this option assumes that the revision of Regulation Brussels I 
is adopted as proposed by the Commission.  
(a) Objectives to achieve: Maintaining the status quo would have no effect on the four 
problems identified above (in section 3.3) a nd would not contribute to achieving the 
specific policy objectives outlined above (in section 4).  
(b) Economic impact: Under the status quo, there are 60%  more companies applying for 
provisional measures preserving a debtor's bank account in domestic than in cross-border 
cases65. This means that companies make less use of the possibility to secure payment of 
their debts by way of preservation orders in cross-border transacti ons than in domestic 
                                                 
64 See p. 6/7 of the programme, OJ C 12 of 15.1.2001.  
65 See above section 3.4.2; difference between 11.6 % of companies applying for a bank attachment 
cross-border and 19.2% applying for it domestically. 
 
EN 34   EN cases and, as a result, write off more cross-bo rder than domestic debt. This amount can be 
quantified at between €441 Mio and €800 Mio66. The difficulties of cross-border debt 
recovery are putting off companies and cons umers from making full use of the Single 
Market. According to the EBTP survey, about one third of businesses that currently do not sell goods or provide services in a nother Member State have not developed or 
stopped cross-border business because of poten tial or actual  diffi culties with cross-
border debt recovery.
67 This affects particularly SMEs which are generally more 
reluctant to expand cross-border than big companies.  
As a result of the revision of  Regulation Brussels I, it is  expected that the number of 
companies taking advantage of preservation orders in a cross border situation would 
increase to some extent, i.e. by 10% compared  to current situation without the revision, 
leading to the increase of the debt pres erved corresponding to estimated €68-120 Mio 
(see section 3.4.2). 
 (c) Fundamental rights:  The Status quo would not contra dict the requirements of the 
Charter of Fundamental Rights of the Europe an Union since the Charter only requires 
Member States to respect the rights set out  therein when they are implementing Union 
law and the process of enforcement of civ il judgment is currently not covered by EU 
instruments. The conditions for processing person al data in the contex t of a preservation 
order issued under national law should alr eady today comply with the requirements of 
Directive 95/46/EC on data protection. 
 (d) Views of stakeholders : There have been no requests fr om the stakehol ders to keep 
only the status quo. Instead, there have been recent calls, like from the European parliament, for developing specific European instruments on securing assets for cross-
border debt recovery. 
7.2. Option B: European A ccount Preservation Order 
(a) Objectives to achieve: Option B would further facilitate the recovery of cross-border 
claims by making it easier for the creditor to  obtain a preservation order ensuring that 
assets of the debtor remain available for final enforcement once a judgment on the merits 
has been issued. As explained under section 3.4.2. the relative contribu tion of this option 
to the objectives would be an improvement of  50% compared to the current situation as 
weighted against to the cont ribution of the revised Regulation Brussels I which would 
bring an estimated improvement of 10% comp ared to the current situation. Therefore it 
will have a significant effect on top of the e ffect of the revised Regulation Brussels I. 
                                                
 
66 Range based on estimations presented in section 3.4. above on difference between the amounts 
currently and potentially secured by preservation orders: Estimate on the basis of sample of bank 
institutions was €1.12bn – €678 Mio making €440 Mio and the second estimate was €2 bn – €1.2 
bn making €800 Mio. 
67 EBTP survey question 1. Out of 107 companies not involved in cross-border commercial 
activities, 32 replied that this was due to potentia l or actual cross-border disputes or problems with 
debt recovery.  
 
EN 35   EN Option B would respond by solving the probl ems described in section 3.3. and address 
the major part of the specific policy objectives outlined above in section 4. The creation of a uniform European procedure would enable creditors to obtain pr eservation orders on 
the basis of the same conditions. This would overall make it easier for creditors to obtain a preservation order. Wh ile the conditions of issue of th e European order would not be 
more advantageous to the creditor compared to all national systems, the creditor could 
continue to avail himselves of measures  existing under national law which would be 
more advantageous to him. The creation of a European procedure would also allow the 
creditor to obtain information on th e debtor's accounts, if necessary.  
The existence of a uniform and simple proce dure would also reduce the costs of obtaining 
and enforcing a preservation order against a debtor in another Member State by doing 
away with the need to hire one lawyer per jurisdiction. De pending on the specific features 
of the European procedure, it could also contribute to reducing delays in enforcing 
preservation orders. The European procedure could clarify who is responsible for serving 
the order on the bank and provide rules on ti me limits for the bank to implement the 
order, on information to the creditor that the or der has actually caught funds and regulate 
how long the order remains in force, thus improving the current situation. Even if the 
initiative would not harmonise differences related to authorities that are competent for enforcment in the Member States, but it coul d improve the clarity by setting obligation to 
Member States to provide information available to public on their systems. 
Option B would, however, not elim inate all costs and delays i nherent in the process of 
debt recovery because the creditor would still incur certain costs and delays when 
enforcing his judgment on the merits under na tional law to actually obtain his money.  
(b) Economic impact: Option B would generally enable or  encourage more creditors to 
make use of the possibility to secure payment of their claims in cross-border dsituations 
and to ultimately recover their debt. The exact economic impact of option B would 
depend on the specific sub-options (outlined below in section 9), in particular relating to 
the conditions of issue and the time-limits for implementing the measure. In the best of 
cases, creditors would use the European proced ure for cross-border cas es as often as in 
domestic cases, thereby creating a potential of  securing an additional 50% of cross-border 
commercial debt compared to the above status quo and an amount of between €373 Mio 
and €600 Mio per year
68  
Option B would also save legal costs mainly  for SMEs which do not have an in-house 
lawyer. Since the conditions for issue and the procedure would be iden tical in all Member 
States, it would no longer be necessary to en gage one lawyer per ta rgeted country. In 
addition, the use of standard forms for the application, issue of the order and its 
transmission to the bank where the account is  located would facilita te the task of the 
lawyer, thereby further reducing costs. Co st savings would very much depend on the 
                                                 
68 For the current levels of cross-border debts secured by preservation orders and for the description 
of estimations see section 3.4 above. 
 
EN 36   EN circumstances of the case and are therefore di fficult to quantify. More over, legal fees are 
not in all Member States determined on the basis of the time spent by the lawyer but can be determined on the basis of the amount in dispute
69. With these caveats and on the basis 
of the savings set out in the case studies (bel ow), it can be assume d that option B would 
allow claimants to save about 10h of legal fees  per case. On an EU average, this would 
amount to about €2.410 per case70.  
Option B would not eliminate cost of transl ating documents for a creditor having to 
litigate in another Member State. However, th e use of standard forms for the application, 
the issue of the preservation order and the communciation with the bank will reduce the 
cost of translation because these forms would be available in all official EU languages. 
Moreover, in the context of the Small Claims Procedure, Member States have agreed to 
accept documents in languages other than their official language which further reduces 
the cost of translation71.  
It is also likely that the mere existence of  an effective enforcement measure will improve 
the payment behaviour of debtors, thereby making it unnecessary fo r the creditor to 
actually resort to the application of a preser vation order. In this respect, option B would 
complement the incentives for punctual pa yment set by the Late Payment Directive72 
which entitles the creditor to an additiona l amount on top of his claim in case of late 
payment.  
SMEs: Since SMEs have fewer resources to devote  to litigation, resort  less frequently to 
commercial intermediaries to secure themselves against non- payment by their clients and 
are consequently more likely to write their cross-border debts off, the impact of option B 
is likely to be more positive on SMEs engaged in cross-border trade than on larger firms. 
Similarly, option B might encourage more SMEs  than larger firms to engage in cross 
border trade. According to the EBTP su rvey, 58% of the firms employing up to 250 
people said they would be ‘more likely’ to  engage in cross-bo rder trade if bank 
attachment/preservation order rules are made easier. This compares with just 33% of 
firms employing more than 250 people who gave this answer.  
The economic impact of option B on case studies No 1a and 1b (commercial cases) can 
be illustrated as follows:  
Case 1a: Basic Commercial case (debtor's bank accounts in another Member State) 
The Belgian SME would no longer need to hi re two lawyers both in Belgium and in 
Germany where it tries to obtai n a preservation order. Sinc e the conditions for issue and 
                                                 
69 See Annex IV for details on national legal systems. 
70 For details of lawyers' hourly fees in the EU see Annex VI.  
71 Thus, e.g. France accepts five languages in additio n to French in the cont ext of the small claims 
procedure. 
72 Directive 2011/7/EU on combating late payment in commercial transactions (recast). This 
Directive replaces Directive 2000/35/EU. 
 
EN 37   EN the procedure would be identical in all Memb er States and there would be a standard 
form for the application, the proceedings c ould be handled by the Company's lawyer or 
even by its in house legal counsel. The use of standard forms for the application, issue of 
the order and its transmission to the bank where the account is located would facilitate 
the task of the lawyer, thereby further redu cing costs. The European procedure would 
lead to savings in foreign lawyers' f ees of approximately €4.000. (lawyer's fee in 
Germany). Given the reduction in costs of pr oceedings, the SME woul d not hesitate to go 
to German courts. Eventually if it wins its case and the money is secured on the debtor’s 
bank account, it will be able to recover its claim of €20.000 – e ither the debtor pays or a 
preservation order under German law is app lied which requires additional lawyers for 
actual transfer of monies to the creditor. The case study does  not evaluates the costs of 
lawyers for the enforcement phase which is  outside of the scope of the proposed 
instrument. 
Total benefits to the Belgian SME: €4.000 (law yer’s fees savings). It may well be the 
case that the Belgian SMEs would only now be encouraged to launch proceedings 
and recover its claim of  €20.000   
Case 1b: Complex Commercial case (deb tor's bank accounts in several other 
Member States : 
The French company would no longer need to hire a lawyer in each of the countries 
where it tries to obtain a preservation orde r.  The European procedure would lead to 
savings in lawyers' fees of approximat ely €10.000 because instead of three foreign 
lawyers –whose fees are respectivel y €3.580, €4.200 and €2.500 and a coordinating 
lawyer (fees: €5.000 in France) on ly one lawyer (fees: €5.000) w ould be able to deal with 
the procedures in all three Member States. Most importantly, obtaining a speedy and 
efficient European Account Preservation Order w ould allow the creditor to secure part of 
the claims that it was not po ssible to recover under Status Quo – i.e. €20.000 in Spain and 
€15.000 in the Netherlands. At the time of enfor cement of the final judgment, the creditor 
will be able to obtain the recovery of  his secured claims amounting to €35.000. 
Total benefits to the French company: €10.000  (lawyers’ fees savings). Knowing that 
the money now will not disappear the Fren ch company would now be encouraged to 
launch proceedings and recover its claim of €60.000.  
Similar benefits can be held for case study 3 (matrimonial case) 
Legal professions : The impact of option B on lawyers and bailiffs (in those Member 
States where they are organised as liberal professions) depends on the development of the 
number of cases generating revenues. Some  aspects of the propos ed initiative - the 
creation of a uniform procedure reducing the need to engage foreign lawyers and the 
improvement of payment behaviour of debtor s - would take away work and/or thereby 
revenue from legal professions. Other as pects – the facilita tion of obtaining a 
preservation order and the increase in cros s-border trade – would lead to more cases 
 
EN 38   EN being dealt with. On balance, a net increase in the number of cross-border cases can be 
expected.  
For lawyers who currently generate part of  their income from obtaining or enforcing 
preservation orders against dom estic debtors for their foreign clients, option B is likely to 
entail a reduction in fees . The reduction in  fees has been estimated at €17 Mio per year73. 
This amount represents, however, only 0.015% of the estimated €1.2 bn fee income of 
law firms specializing in cross-border commercial cases74 and would therefore not have a 
significant negative impact on lawy ers. Moreover, the reduction in  fees per case is likely 
to be offset by the estimated increase in the overall volume of cases which would continue to be handled by lawyers. Baili ffs and enforcement officers would equally 
benefit from an overall increased in preser vation orders in cros s-border cases and the 
corresponding increase in reve nues triggered by option B.  
For both lawyers and bailiffs, this increase in revenues is likely to off-set the costs of 
having to familiarize themselves with the new procedure and of haing to handle national and the European procedure in parallel. Overa ll, option B would theref ore entail a neutral 
or positive economic impact on these intermediaries. 
(c) Impact on Member States : Since it would create an entirely new European 
procedure, option B would impose certain costs on Member States to familiarize their legal professionals (judges and – in court-ba sed enforcement systems the court officers in 
charge of implementing it) with the ne w system. These costs would, however, be 
triggered in the short term only. Option B might also lead to an increase in applications 
for European Account Preservation Orders wh ich would increase the workload of judges 
and court staff. It is difficult to quantify th e costs which such an increase would trigger. 
However, part of these costs would be cove red by a corresponding in crease in court fee 
revenues; moreover it can be safely assumed that these costs are largely outweighed by 
the economic benefit of the measure identified above.  
In some Member States, option B will lead to a more favourable tratment of cross-border 
than domestic cases, thereby leading to a "rev erse discrimination" of residents in that 
Member State. Such a situation potentially aris es under several instruments in the area of 
civil justice which are all limited to cross-bo rder cases because their legal basis requires 
such limitation
75. However, this is not regarded as a breach of European law; only the 
opposite – i.e. discrimination against non-na tionals – is prohibi ted by the Treaties. 
Member States are free to apply the European rules to domestic cases76. Option B would 
                                                 
73 CSES study page p. 126. 
74 CSES study p. 64. 
75 E.g. the European Small Clai ms procedure, the European Order for Payment procedure, the 
Directive on certain aspects of mediation in civ il and commercial matters, the Directive relating to 
the compensation of crime victims and the Directiv e to improve access to justice in cross-border 
disputes by establishing minimum common rules relating to legal aid for such disputes.  
76 This is being done by several Member States, e.g.  in the transposition of the Mediation Directive.  
 
EN 39   EN therefore encourage those Member States whic h currently provide less efficient rules to 
their creditors in domestic cases to reform their systems. 
 (d) Fundamental Rights : The creation of a European  Account Preservation Order 
would give a creditor an effi cient means to secure himsel f against the non-payment of a 
cross-border debt, thereby faci litating the exercise of the ri ght to effective enforcement 
(Article 47 (1) Charter) and to property (Art icle 17 Charter). The procedure envisaged by 
option B for the granting of an order would ne ed to give the alleged debtor an effective 
right to judicial protection and enable him to defend himself against abusive and 
unjustifiable preservation of his bank account s (see below at section 9.1. and 9.2.). The 
court can also require the creditor to provide security to compensate the debtor for any 
loss resulting from an unjustif ied order unless the court waives this requirement in 
exceptional circumstances. Moreover, option B w ould need to ensure that the respect for 
private and family life (Article 7) is en sured by excluding amounts necessary for the 
debtor's and his family's livelihood from enfor cement and by appropriately addressing the 
seizure of accounts which do not exclusively belong to the debtor but also to a spouse 
who is not liable for the debt.  
Concerning the transfer of personal data , the European Account Preservation Order 
would have to comply with the requirements  of Directive 95/46/EC  on data protection. 
Data protection concerns can ar ise notably in relation to a ccount information provided by 
the bank or public authorities if the cred itor does not know the whereabouts of his 
debtor's account (depending on the suboption chosen at sec tion 9.3 below) or by the bank 
to the creditor and the cour t about the funds caught by the order. The instrument would 
need to ensure that the debtor's personal data  is fairly and lawfully  processed; the purpose 
of processing this data is restricted to the sole purpose of preserving the amount of the 
claim; that the debtor's data is not kept for longer than is necessary and that he has a right 
to recourse against the processing of his data . In order to ensure such compliance, the 
instrument would notably provide that only  the necessary minimum of information is 
transferred when the bank informs the court issuing the order about the success of the seizure
77.  
(e) Views of stakeholders 
The replies to the public consultation show th at the majority of those that responded 
favoured the creation of a European instrument  for preservation orde r (about 75% of the 
responses). Very few replies did not support a separate instrument at  all. Those arguing 
against an initiative generally did so on th e grounds that their ow n national procedures 
                                                 
77 Thus, if accounts held by the debtor with the targeted bank held sufficient funds, the bank would 
only have to communicate to the court that th e order was successfully  implemented against 
accounts even though it re presents administrative burden as mark ed at the end of report. It would 
not be necessary to specify the exact account balance or the fact that the debtor held further accounts with the bank. By contrast, if there were  not sufficient funds in the account to satisfy the 
order, the bank would have to communicate the exact account balance as well as whether the 
debtor held any additional accounts with that institution.  
 
EN 40   EN work well. However, others acknowledged that  while a new European procedure would  
not be needed to improve proc edures in their own Member State, it would have added 
value for ‘out-going’ applicati ons that are dealt with in ot her countries, some of which 
are seen as having very inefficient proced ures for preservation orders. The generally 
positive attitude to option B was also evident fr om the debate that took place at the public 
hearing in Brussels in June 2010. 
The Member States have generally welcomed  the current initiative in the format of option 
B, because a European procedure for a pres ervation order is seen helpful as it would 
accelerate trans-border enforcement proceedin gs (see Annex 3B on the meeting of 31 
March 2011). They have thus positive views on option B. 
The European Parliament adopted  in May 2011 an own-initiative  report with 
recommendations to the Commission on proposed interim measures for the freezing and 
disclosure of debtor's as sets in cross-border cases78. The EP advocates the adoption of 
European instruments on the freezing of assets and on the disclosure of assets. Concerning the freezing of a ssets, the EP sees bank accounts as the core scope of the 
instrument. As regards the disclosure of a ssets, the EP supports an order obliging the 
debtor to disclose all of his assets. In particular on the free zing order, the id eas of the EP 
comply to a very large extent with the cu rrent iniatiative on preservation order under 
option B. 
7.3. Option C: Harmonisation of national  rules on the preservation of bank 
accounts  
(a) Objectives to achieve:  This option would also partly achieve the policy objectives set 
out above, albeit to a lesse r extent than option B. Th e harmonisation of national 
procedural rules for the preservation of  bank accounts would reduce the existing 
divergences between national laws in this ar ea and create an ‘island of harmonisation’ 
between the legal systems of Member States in respect of preserva tion orders. Option C 
would align the conditions for issue of a cr oss border preservation order, its procedure 
and implementation in the Member States. The features chosen would be similar to the 
procedure contemplated in option B. In c ontrast to option B, however, option C would 
not allow national procedures to coexist w ith the harmonised "European" procedure.  
(b) Economic impact: Option C would have a slightly different economic impact than 
option B. While option C would align the conditi ons of issue of pres ervation orders, e.g. 
ensuring that throughout the Un ion, preservation or ders could be obtained under the same 
conditions, e.g. – depending on the specific featur es of this option – without the hearing 
of the debtor, eventually differences between the procedures would c ontinue to persist if 
the harmonisation instrument (e.g. by way of a Directive) did not deal with all detailed 
aspects of the procedural law of the Member States. Such differences  are inherent in the 
                                                
 
78  EP plenary of 10 May 2011. Document P7_TA(2011)0193, , Rapporteur Arlene McCarthy (S-
D/UK)  
 
EN 41   EN technique of harmonising national law by way of  directive since a directive, according to 
Article 288 TFEU, is only binding as to the result to be achieved but leaves to the 
Member States the choice of form and method. Consequently, option C would not 
achieve the same degree of uniformity as a self-standing European procedure established 
by a Regulation would.  
The remaining differences between Member St ates' national procedural and enforcement 
law are likely to continue to require the invo lvement of a lawyer licensed to practice in 
each of the Member States in which the pr eservation order is to be obtained and/or 
enforced. Enforcement costs vary widely betwee n Member States. This is due to different 
schemes of enforcement and different systems of professionals (for  example independent 
bailiffs or court’s agents). There is no data  on the specific costs of enforcement as this 
issue is not covered by the study  and the proposed initiative. This would not allow for the 
same cost reduction under option C than under option B. Option C is therefore likely to 
have a less positive economic benefit on SMEs  which are less likely  to have in-house 
legal departments and are generally more sensitive to legal costs than large companies.  
The impact of option C on case studies No 1a and 1b can be illustrated as follows: 
Commercial cases: Although the basic features of th e procedure for obtaining and 
enforcing a preservation order would be the same in the Member States, the persisting 
differences between national rules would still require creditor to hire a lawyer in the other 
country(ies) where it needs to obtain a preser vation order. As concerns delays, option C 
would have the same effect as option B to reduce (on average) the time necessary for the 
issuing, transmission and implementati on of the preservation order.  
The impact of option C on the legal professions (lawyers and bailiffs)  is difficult to 
quantify but is overall likely to be similar to the impact of option B. Option C is less 
likely to lead to a reduction of lawyers' fees in existing cases but is equally less likely to entail a significant increase in the use of  preservation orders with its corresponding 
increase in revenue.  
The impact of any measure improving the effi ciency of enforcement would benefit the 
individual consumers and maintenance cred itors. However, the economic impact of 
option C would not be as beneficial for these categories of pe ople as option B.  
As option B, option C is also likely to im prove the payment behaviour by providing an 
efficient sanction against recalcitrant debtors, thereby complementing the Late Payment Directive.  
(c) Impact on Member States: (1) Costs for implementation: Option  C would require 
Member States to implement the rules harmoni sed by the directive into  their national law. 
Member States would therefore have to a dopt legislation, both for the procedure of 
issuing the order and for the mechanism of enforcement. Costs of implementing the new 
rules would, however, be one-off co sts which would only arise once. (2) National legal 
traditions : The implementation of the new rules risks creating difficulties for Member 
 
EN 42   EN States in several respects. First, the Europ ean rules are broadly aimed at addressing cross-
border cases whereas national law on banking se izures is applicable also in domestic 
cases. Member States would have the "choice"  of either having tw o procedures for the 
preservation of bank accounts in place in their country or to replace the national 
procedure by the European one. In terms of transparency and user-friendliness of national 
law, both solutions have their drawbacks. Mo re importantly, however, it seems inevitable 
that the procedures prescribed by the instrume nt would not be totally in line with those 
currently existing under national law. A given ru le of the European instrument might be 
easy to implement in a national system which has served as a model for the particular 
provision, but would be more difficult to  digest for systems following a different 
approach. The need to implement the rules ha rmonised by the Europe an instrument into 
national law would therefore put Member States  in a difficult position of either accepting 
a "contaminant" in their national rules on procedure and enforcement of preservation 
orders or to align their entir e procedural and enforcement system with the approach taken 
in the instrument on the preservation of bank accounts. Option C would therefore be 
more costly to implement and be more intrus ive into national legal traditions than option 
B.  
Option C could also in some Member States l ead to a more favourable treatment of cross-
border than domestic cases (see ab ove at point 7.2. c for details).   
(d) Fundamental rights : As outlined above for option B, option C would have a positive 
impact on the right of the creditor to an effective enforcement. Compliance with the 
requirements of the Charter would, however, e qually require that the rights to judicial 
protection (Article 47) as well as his or her human dignity (A rticle 1) of the debtor are 
adequately protected. As to data protection, this option would contain similar provisions 
as option C to ensure that the procedure complies with the provisions of Directive 
95/46/EC on data protection. 
(e) Views of stakeholders : Only few stakeholders support this option. The overwhelming 
majority considers that any harmonisation of existing domestic laws by  way of directives 
would not solve intricate problems of enforcemen t of domestic attachment orders in other 
Member States and that it was uncertain that the intrusion into national legal systems required to harmonise procedures would be just ified in terms of the potential benefits in 
improving the process of cro ss-border preservation orders . This option has not been 
supported neither by the Member States  nor by the European parliament. 
8. C
OMPARING THE OPTIONS  
The table below summarizes the impacts of  the different options analysed above: 
Key:  ++ = very positive impact; 0=no or neutra l impact; - -  = very negative impact. 
 
 
EN 43   EN Policy options Effectiveness 
to reach objectives Economic 
impact Impact on 
Member States Fundamental 
Rights 
Option A: Status Quo after revision of Regulation Brussels I  0 0 0 0 
Option B: European 
Account  Preservation Order  ++ 
++ 1) implementing 
costs – 
2) legal traditions 
0 + 
Option C: Harmonisation of 
national rules for preservation orders  + 
+ 1) implementing 
costs – –  
2) legal traditions 
– –  + 
In conclusion, option A  fails to address efficiently the problem of facilitating debt 
recovery and the policy objectiv e, since the current obstacle of divergent criteria for 
obtaining bank preservation orders  and their effects within national legal systems still 
remains. Option C  does not ensure the same economic and social benefit as option B and 
would be unnecessarily intrusiv e for national legal systems. Option B offers the most 
comprehensive solution, and therefore option B  is the preferred option.  
9. THE PREFERRED POLICY OPTION AND ITS FURTHER SUB -OPTIONS  
This section discusses sub-options for key features of the possi ble European Account 
Preservation Order. For the pur pose of this report, four key features of the instrument 
have been identified which take  into account the divergence in  the views of stakeholders 
and the importance of their impact on funda mental rights, notably the position of the 
debtor.  
9.1. Sub-options relating to the hearing of the debtor  
Sub-option 1: No hearing of the debt or prior to issuing the measure: Under this sub-
option, the order would always be issued  without a hearing of the debtor ( ex parte ) but 
the debtor would be immediatel y notified of the preservati on order and would be given 
the possibility to contest it in the competent court.  
Sub-option 2: Prior hearing of the debtor: Under this sub-option, the debtor would have 
to be heard prior to th e issue of the order. 
Impact of the sub-options:  
 
EN 44   EN Sub-option 2 would only to a limited extend achieve the policy objective  to facilitate 
cross-border debt recovery. If the debtor is  heard prior to issuing a preservation order 
aiming to block his bank account, the surprise e ffect of the measure is lost and there is a 
real risk that a recalcitrant or fraudulent debt or will withdraw or transfer his assets from 
the account targeted in the envisaged order. This is illustrated in case study No 1b:  
Case study 1b - Commercial case: Sub-option 1 would allow the French company to 
safeguard the surprise effect of the preserva tion order also against the Spanish subsidiary 
although Spanish national rules of civil procedure currently do not easily grant ex parte  
preservation orders. This w ould allow the French SME to have the order implemented 
before his Spanish debtor withdraws funds from the account, thereby allowing him to 
secure them until the subse quent enforcement of the judgm ent on the merits. Sub-option 
2 would not change the situ ation vis-à-vis the status  quo in this respect.  
Since sub-option 2 would be a less effective tool for cross-border debt recovery, its 
economic  impact  would not be as positive as that of sub-option 1. As to fundamental 
rights , sub-option 1 ensures the "right to enfo rcement" of the creditor by safeguarding 
the surprise effect of the measure but seems problematic for the debtor because he is not heard in the process. However, sub-option 1 would comply with the requirements of 
Article 47 (2) of the Charter  because it woul d ensure that the debt or receives notice of 
the order immediately after it is implemente d by the bank and that he has the possibility 
to contest the measure immediately afterwards.  
Comparison of the sub-options : 
Policy options Effectiveness to achieve 
objectives Fundamental rights impact 
Sub-option 1: hearing of the 
debtor only after the order is issued ++ 0 
Sub-option 2: Prior hearing 
of the debtor 0  0 
Overall , sub-option 1 would better achieve the po licy objectives than sub-option 2. As 
regards fundamental righ ts both options comply with the Charter.  
9.2. Sub-options relating to juri sdiction for issuing a nd contesting the order 
Rules on jurisdiction determine which court is co mpetent to hear a case. In the context of 
a preservation order, this issue is relevant in two situations: The regulation first has to determine which courts are competent for issu ing the order. There was general agreement 
among stakeholders in the public consultati on that the courts having jurisdiction on the 
merits of the case should be also competent to issue preservation orders. In addition, the courts where the account is located or the cour ts of the debtor's domi cile would also have 
 
EN 45   EN jurisdiction to issue the order. Second, the Regulation has to determine which courts are 
competent to deal with the obj ections of the debtor agains t the order (assuming that he 
has not been heard prior to it s issue as per sub-option 1 in section 9.1). In this respect, 
two sub-options can be considered.  
Sub-option 1: The issuing court is competent in principle: Under this sub-option, the 
debtor would in principle have to contest the order in the court having issued it. However, 
objections against the process of enforcem ent or the amount exempt from execution 
would have to be raised in the Member St ate where the order is enforced. This will 
usually be the Member State where the debtor is domiciled unless he has an account in 
another Member State.  
Sub-option 2: Only the court at the debtor's domicile is competent:  Under this sub-option, 
the debtor would be able to contest the order "at home", i.e. in the Member State where 
he is domiciled. It could be considered to combine both options and limit sub-option 2 to 
certain categories of defendants such as c onsumers which are typically the "weaker" 
party in a dispute.   
Impact of the sub-options:  
In terms of achieving the policy objectives set out above, both sub- options are equally 
suitable. However, the sub-options raise an issue of coherence with existing EU 
instruments in the area of civil justice a nd compliance with the general principle of 
mutual recognition. Sub-optio n 1 corresponds to the genera l rule under the existing 
European instruments that objections relating to the substance of a judicial decision have 
to be raised in the court having issued it. Thus, sub-option 1 corresponds to the approach 
taken in the revision of Regulation Brussels I and th e Maintenance Regulation. Sub-
option 2 would allow a court in one Member St ate to review the substance of a decision 
given in another Member State whic h is not the case under the existing acquis .  
As to the impact on fundamental rights , if the court having jurisdiction on the merits is 
situated in another Member State than the one where the debtor is domiciled, sub-option 
1 imposes on him a potentially heavy burden for contesting the order due to geographical distance and linguistic barriers which might trigger cost s (translation) and delays. In 
contrast, sub-option 2 would greatly facilitate the task of the debtor to contest the order because the competent court would be locat ed in his own Member State (unless the 
account is not situated there). In order to comply with the requirements of the Charter, 
sub-option 1 would have to ensure that the ri ght of the debtor to judicial protection is 
fully ensured in the Member State where th e judicial decision is taken. Moreover, 
consideration would need to be given to facilitating the exerci se of the debtor's right in 
practice, e.g. by ensuring that he is fully informed about his possibilities to contest the 
measure and the competent court to which he  would have to address himself and by 
providing for easy-to-use standard forms in a ll EU official languages. This might not be 
sufficient to offset the disadvantages of ha ving to contest the orde r in another Member 
State for the "weaker" party to the disput e, e.g. the consumer in B2C relations.  
Consumers will not often be the target of a preservation order because they are usually 
 
EN 46   EN required to pay in advance when buying go ods or ordering services cross-border. 
However, such situations can arise, e.g. in the context of financial services. While the 
jurisdiction rules of Regulation Brussels I ensure that in most cases, jurisdiction on the 
substance is in the Member State where the consumer is domiciled, additional protection might arguably be needed if the consumer has an account in another Member State and 
the order is issued by the court of that Memb er State. Overall, both  sub-options could be 
structured in a way that they comply with the rights of the debtor to an effective remedy.  
Comparison of the sub-options: 
Policy options Effectiveness to 
the objectives  Impact on 
Member States Fundamental Rights 
Sub-option 1: 
Jurisdiction of the Court issuing the order  ++ ++ 0 
Sub-option 2: 
Jurisdiction of the court of the debtor's domicile (at least for weaker parties)  ++ 
1) compliance 
costs – 
2) inconsistent 
with Regulation Brussels I _ ++ 
Overall, in light of the positive effect on the defendant's fundamental rights, sub-option 2 
is preferable at least for "weaker" defendants.  
9.3. Sub-options relating to obtaining info rmation on the debtor's account 
Sub-option 1: Status quo. The European procedure would not contain any rules 
facilitating obtaining information on th e debtor's account for the creditor.  
Sub-option 2: Introducing an order for disclosure: Under this sub-option, the Regulation 
would allow the creditor to obtain informati on on the whereabouts of his debtor's account 
by providing for the issue of an order for di sclosure by the court which would oblige all 
banks located in a given Member State to check  if the debtor holds an account w ith them 
and, if so, to inform the court accordingly79.  This sub-option could be combined with 
sub-option 3 to leave Member  States more flexibility. 
Sub-option 3: Giving to court and Enforcemen t Authority access to public registers: 
Alternatively, the regul ation could ensure access to in formation on the whereabouts of a 
debtor's account by granting the court or th e enforcement authorities' access to existing 
                                                 
79 This is the case e.g. in Spain where the order for disclosure is channelled through to the banks by a 
limited number of banking associations.  
 
EN 47   EN registers containing the necessary information. In  this respect, tax re gisters would play an 
important role. In the context of fighting or ganised crime, some Member States have 
created registers of bank accounts held in th eir territory to which access could be given. 
This sub-option could also be co mbined with the sub-option 2. 
Impact of the sub-options 
Both sub-options 2 and 3 would achieve the policy objective  of facilitating obtaining 
relevant account information of his debtor which the stat us quo does not ensure in the 
majority of Member States. Sub-option 3 might be a little less efficient than sub-option 2 
as it would not systematically ensure th at information on debtor's bank accounts is 
available in a Member State. Public regist ers holding relevant account information like 
tax registers do not exist in all countries80. Nevertheless, even in those Member States 
which do not have registers, public authori ties dispose of relevant account information 
which could be disclosed if necessary.  
Case Study 1b: Commercial case : Sub-option 2 would enable the French SME to obtain 
the information about additional bank accounts of the Dutch subsidiary through a 
disclosure order to all banks in NL thereby increasing its chances to successfully recover 
its claim over €20.000. This w ould cost him € 30-100. Sub-op tion 3 could achieve the 
same result by granting the Dutch enforcement au thority access to information held in the 
Dutch tax register.  
As to the impact on Member States  and banks, sub-option 2 would trigger considerable 
costs for banks having to comply with an or der for disclosure which can be estimated at 
around between €30 and €100 per case depending on its complexity (e.g. research of several accounts in different establishments).  This could lead to a negative impact on 
banks unless they are compensated for their cost s. If the costs are eventually born by the 
creditor, this would reduce the economic be nefit of the measure.  Under sub-option 3, 
Member States would have to set up a system of access to information by enforcement 
authorities. Such a system is, however, already in place in all Member States in the area 
of family maintenance
81, which would reduce implementation costs. On the other hand, 
some Member States already al low disclosure orders to be addressed to their banks and 
might find it difficult to implement suboption 3 beyond the area of maintenance. It should 
therefore be considered to leave Member States a choice between suboptions 2 and 3. 
Sub-options 2 and 3 would have particularly positive social impact  because the most 
vulnerable creditors have limited means to  find out about their debtor's account by 
turning to a private debt recovery or invest igation agency as illustrated by case study No 
2. 
                                                 
80 No such registers exist e.g. in Belgium and the UK. 
81 Cf Article 61 of the Maintenance Regulation.  
 
EN 48   EN Case Study 2: Consumer case : Sub-option 2 would enable the French authorities to 
issue a disclosure order or to access the rele vant registers in Belgium to find out with 
which bank the Belgium trader has an account. It  would spare Mr B the costs of having to 
turn to private debt collecting agencies amounting to €120 (€ 20 per hour, and 6 hours is 
needed)  
In terms of fundamental rights , while the status quo is not  violating the Charter of 
Fundamental Rights or the ECHR, both s ub-options 2 and 3 would improve the 
effectiveness of the creditor's right to enfo rcement by allowing him to find out where his 
debtor's bank account is located which is a prerequisite for any further enforcement 
action relating to it. Both sub- options would need to ensure that the debtor's rights to a 
protection of his personal data are safe guarded by providing that any information 
obtained must be processed in complian ce with the Directiv e on data protection. 
As regards the views of the stakeholders, th e only point raising con cerns for the Member 
States has been the disclosure of inform ation on the bank accounts (see Annex 3B). On 
the other hand, the EP has called for an order obliging the debtor to disclose all of his 
assets . The approach of sub-obtions 2 and 3 is different but arguably also more efficient 
because only bank accounts are concerned and the relevant information is not sought from the defendant but from other sources. 
Comparing the sub-options:  
Policy options Effectiveness to 
reach policy objectives Economic 
impact  Impact on 
Member States Fundamental 
rights impact 
Sub-option 1: Status Quo 0 0 0 0 
Sub-option 2: 
Disclosure Order ++ - (costs of 
banks) 0 + 
Sub-option 3: 
Access to public registers + + - 
(implementation costs) + 
Overall, given the similar effectiveness to reach objectives and the impact on Member 
States, the preferred option would give Member  States the possibility to opt for either 
sub-option 2 or 3. 
 
EN 49   EN 9.4. Sub-options relating to time-limit s for issuing and enforcing the 
preservation order 
Sub-option 1: No time limits: Under this sub-option the European procedure would not 
set any specific time-limits for issuing and implementing the preservation order. It would only contain unspecific require ments relating to time such as "without undue delay" or 
"as soon as possible".   
Sub-option 2: No slower implementa tion than for national measures: This sub-option 
would require Member States to administer the European procedure at least as speedily as 
their national procedures.  
Sub-option 3: Introducing specific time-limits: Under this sub-option, the European 
procedure would establish specific time-limits for all or at least some of the different stages of the procedure. Thus, for exampl e, the Regulation could impose time-limits for 
issuing the order, for serving it on the ba nk and the debtor, for the bank to provide 
information about whether and to what extent  the order caught any funds, for deciding on 
an application for review by the debtor et c. When specifying how many days a given 
stage of the procedure may take, consideratio n would need to be given to the time these 
stages currently take in the Member States. Di fferent alternatives c ould be considered in 
this respect: one approach would be to esta blish the current EU-average as the maximum 
time, thereby changing the status quo essent ially only for those Member States which 
currently have particularly long delays of procedure. A more ambitious approach would 
consist in taking a group of fastest Member States as a model for defining concrete time 
limits, thereby obliging the majority of Memb er States to deal with the European 
procedure more quickly than with their na tional ones. This sub-option could also be 
combined with sub-option 2. 
The future initiative establishes time-limits  for issuing and implementing the European 
Account Preservation order. However, where the court or enforcement authority is in 
exceptional circumstances not able to comply with these time limits it  has to justify why 
an additional delay is needed. Where an app lication for a European Account Preservation 
Order is made prior to the initiation of proceedings on the substance, the claimant must  initiate such proceedings within 30 days  of the date of issue of the order; upon 
application prior to an enfo rceable title, the court should issue the order as soon as 
possible but in any event within 7 calendar days  of the lodging of the application, unless 
exceptional circumstances make it necessary  to hold an oral hearing; where the 
application is based on an enforceable title, the competent authority shall issue the order 
within  3 days ; if the court refuses to  issue the order, the cl aimant may lodge appeal 
against this decision within 30 days . The bank is obliged to implement the order 
immediately by blocking an amount corresponding to  the amount of the order. Within  3 
days , the bank has to issue a declaration on wh ether the order has caught sufficient funds. 
The debtor has to be notified immediately after the measure took effect in order to be 
able to prepare his defence. The European Account Preservation Or der remains in force 
until proceedings on the s ubstance have ended. As reme dies of the defendant, the 
application for a review should  be made promptly, in any event within 45 days from the 
 
EN 50   EN day the defendant was effectively acquainted w ith the contents of the order and was able 
to react. If the application is manifestly  unfounded, the court dismisses the application 
immediately and in any event within 7 days  from the receipt of the application. Finally 
the court has to give its decision as soon as possibl e but in any event with 30 calendar 
days  from the lodging of the application. 
Impact of the sub-options :  
In terms of achieving policy objectives , sub-options 1 and 2 would not achieve the 
objective of reducing the existing delays in  some Member States for obtaining and 
enforcing a preservation orde r. Only sub-option 3 would co ntribute to speeding up the 
process of debt recovery in comparison to the status quo in those countries. However, 
sub-option 2 would ensure that a creditor opti ng for the new procedure in a Member State 
where the system currently works efficiently is not worse off than if opting for a preservation order under national law. 
As to the economic impact , similarly, only sub-option 3 would have a positive economic 
impact on creditors seeking to block money in a bank account located in a Member State 
where this process is currently very slow, sin ce it would enable him to obtain and enforce 
the order more quickly. The same is true for the social impact  on the most vulnerable 
groups. The impact of the sub-options on case study No 3 can be illustrated as follows: 
Case study 3: Family law case : If the time-limits set by sub-option 3 were less than the 
four months it took Ms C to obt ain her order in Spain and to have it implemented in Italy, 
the European procedure would allow Ms C to obtain and implement a preservation order 
more quickly than under the status quo. The quicker she obtains and implements the 
order, the better are her chances  to be able to block her ex -partner's account before he 
leaves the country. On the basi s of specific time-limits propos ed in the future initiative, 
the court in Spain shall grant a preservati on order to Ms C within 7 days from her 
application. The bank in Italy is obliged to block the monies on the debtor’s account 
immediately and it shall inform Ms C within 8 days if the order was successfully 
implemented (whether there was enough f unds on the account). The monies on the 
account are preserved until the maintenance judg ment is enforceable. This will allow her 
to fully enforce the judgment by obtaining th e definitive transfer of monies from the 
debtor’s bank account to the credit of her bank account. 
As regards the commercial matters, the analysis of sub-option 2 to case study No 1a is as 
follows: 
Case study 1a: Basic commercial case:  Since the Belgian SME is seeking a 
preservation order before the German Court which is competent on the merits, this court 
should have the duty to treat the application for a European  Account  Preservation Order 
as diligently as for a German preservation order in accordance with sub-option 2. On the 
basis of specific time-limits proposed in the fu ture initiative, the German court shall grant 
a preservation order to the Belgian SME within  7 days from its application. The bank in 
Germany is obliged to block the monies on the debtor’s account immediately and it shall 
 
EN 51   EN inform the claimant within 8 days if the order was successfully implemented (whether 
there was enough funds on the account). The m onies on the account are preserved until 
the definitive judgment on the merits is enfo rceable. This will allo w the Belgian SME to 
fully enforce the judgment by obtaining the definitive transfer of monies from the 
debtor’s bank account to the credit of its bank account. Accordingly sub-option 2 would 
have a neutral or positive effect on th e length of proceedings , depending on further 
progress expected from multi-language fo rms and their electronic transmission.  
Turning to the c osts for Member States having to implement and comply with the 
requirements of the European procedure, sub-option 2 would entail only minimal costs 
for Member States by requiring them to ensu re that the new procedure is applied as 
swiftly as the national one. By contrast, sub-option 3 would entail additional costs for those Member States which are currently slow  to grant and enforce preservation orders. 
For example in order to speed-up proceedings  there would be a need for recruiting and 
training additional judges, equipping courts with computers and software. However part 
of these costs will be compensated by the EU financial programmes (civil justice, e-justice, European Judicial Network) The ex tent of these costs w ould depend on the step 
of the procedure for which a time-limit is set, the level of ambition of the time-limits and the extent of current delays in the nationa l procedure. There is no available data on 
existing time-limits in national enforcement law. Where legal time-limits exist in some Member States – in other countries it is a ma tter to be decided by the court- it is difficult 
to compare them between Member States as they refer to different stages of different procedures. Possibly certain Member States may encounter difficulties to apply some of 
the proposed time-limits. However the additional administrative burden in those Member States should be spread  over time as it is proposed that  the future initi ative will apply 
only from 24 months after its entry into force. This will allow those Member States to adapt their judiciary in view of respecting the new time-limits. Specific training sessions 
for judges will also be organised through the European Judicial Network in civil and 
commercial matters. Finally, the electronic implementation of the new procedure would 
contribute to the respect of the time-limits. It is important to note in this context that procedural time-limits have already been esta blished in existing instruments, notably the 
Small Claims procedure and the Service of  Documents Regulation. While the evaluation 
of these instruments is ongoing and no exact data on compliance or implementation costs 
is available, the impression is that over time such deadlines contribute to reducing procedural delays in national courts. A ny time-limit set under sub- option 3 should 
therefore correspond to the extent possible w ith those of the existing acquis and draw on 
lessons from the mentioned evaluations. More over, the impact on Member States could 
be mitigated by introducing an "escape clause " allowing Member States in exceptional 
cases to derogate from the established deadline  and to take the releva nt step of procedure 
as soon as possible. Such a provision figures already in the Small Claims Regulation. 
Finally, if sub-option 3 was c hosen, it would need to be considered whether transitional 
periods for implementing time-limits could mitigate the costs for Member States. 
As to the impact on fundamental rights, all sub-options comply with the Charter of 
Fundamental Rights and the European C onvention on Human Rights respectively. The 
 
EN 52   EN ECHR already imposes an oblig ation on Member States to obt ain and enforce a judicial 
decision within a reasonable time (Article 6) . Sub-option 2 would ensure that a creditor 
using the European procedure is not worse off in terms of timing than if he was applying 
for a national measure but would not speed up the process in a Member State where the 
judiciary works notoriously slow. Sub-option 3 would impr ove the fundamental rights 
situation for the creditor by enabling him to obtain and enforce a preservation order more 
quickly than under the status quo. 
Comparing the sub-options:  
Policy options Effectiveness 
to reach policy objectives Economic 
impact  Impact on 
Member States Fundamental 
rights impact 
Sub-option 1: Status Quo 0 0 0 0 
Sub-option 2: 
No discrimination + + 0 + 
Sub-option 3: 
Specific time-limits ++ ++ - (additional 
implementation costs for "slower" Member States) ++ 
Overall, a combination of sub-options  2 and 3 is the preferred option.  
10. SUMMARY OF THE PREFERRED OPTION AND ITS IMPACT  
It results from the above analysis that the preferred option is the creation of a 
European Account Preservation Order  which would be avai lable to citizens and 
companies in addition to existing national pr ocedures. Thus, the order would be issued ex 
parte , i.e. without the prior hearing of the de btor but the debtor would be immediately 
notified and be able to contest the order in a special review procedure. The court 
competent for the review would be the court issuing the order; however, certain "weaker 
parties" could contest the order at the court at the debtor's domicile. The new procedure 
will enable a debtor or the competent authorit ies to find out the whereabouts of a debtor's 
bank account if the creditor doe s not have that information. It will introduce time-limits 
for certain key steps of the procedure.  
a) Effectiveness to achieve policy objectives: The preferred option achieves the general 
policy objective  to facilitate the recovery of cross-border claims for citizens and 
businesses by making it easier to obtain a pres ervation order securing  the recovery of 
 
EN 53   EN cross-border debt. The preferred option achieves the specific  policy objectives  set out 
above to a significant extent as follows: 
- It will enable a creditor to obtain a preser vation order on the basis of an efficient and 
uniform European procedure under the same co nditions in all Member States of the EU. 
This will enable creditors seeking to recover debt in countries where conditions for issuing such orders are currently more restrict ive than those envisage d by the initiative to 
obtain a preservation order in situations wher e this is currently not  possible. It will 
notably enable a creditor to obtain a preser vation order without a prior hearing of the 
debtor, thereby safeguarding the surp rise effect of the measure.  
- It will enable a creditor to obtain information about th e whereabouts of his debtor's 
accounts without having to pay the services of private debt  collecting or investigation 
agencies. 
- It will enable a creditor to reduce costs of obtaining a preserva tion order by doing away 
with the need for an additional lawyer per each foreign jurisdiction where a preservation order is sought or enforced. It will also re duce costs of translati on by providing standard 
forms both for the application, the decision and the communication with the bank. Costs 
of banks and bailiffs will be made more tr ansparent by obliging Member States to fix a 
single fee for their respective services. Reference in 3.3.2. 
- It will enable a creditor to obtain and en force a preservation order more quickly in 
Member States where this procedure is currently comparatively slow by introducing time-limits for certain key steps of the procedure. 
b) Economic impact : The preferred option would have a positive economic impact and 
contribute to reducing the overall amount of the €55bn bad debt. It would enable 
companies to secure the recovery of  additional bad debt of between €373Mio and 
€600Mio  per year
82, thereby increasing the  overall level of bad debt secured by 
preservation orders from €679 Mio - €1.2 bn to  between  €1.12 bn and €2bn per year83 
over time. Additional debt recovered by consumers and maintenance creditors will add to 
these figures which is, however, difficult to quantify. An estimation of cost savings for 
companies currently involved in cross-border trade  would be in  the range of €81,9Mio 
to €149Mio annually84. In addition, there would be sa vings also for consumers and 
maintenance creditors. The preferred option will benefit in particular SMEs  which have 
                                                 
82 See section 3.4. and 7.2. for de tails. These figures assume that the success rates remains the same 
at 53.3% although an argument could be made that the creation of uniform conditions for issue 
would also increase the success rate of cross-border applications.  
83 Current levels of bad debt recovered in cross-border situations are estimated to be between 
€679Mio and 1.2bn annually, cf section 3.4. above. 
84 See section 7.2. b). This assumes that once la wyers are familiar with the European procedure, 
companies can save an average of 10h in lawyers' fees per cross-border case which amounts on an EU average to €2.410 per case (see Annex VI). This amount is multiplied with the estimated 
current number of cross-border preservation orders per year of between 34.000 and 61.828 (see 
section 3.4.).  
 
EN 54   EN little cash flow and limited a ccess to credit and are therefore more reluctant than big 
companies to pursue their claims under the status quo.  
Given that more than half of European comp anies stated that they would undertake more 
cross-border trade if common rules would allow them to obtain easily a preservation 
order/bank attachment in another Member St ate, the preferred option is likely to 
encourage more companies to expand their bus iness into other Member States, thereby 
making full use of the possibilities offered by the Single Market. The availability of an 
efficient and low cost means of redress in case of  a dispute with the trader is also likely to 
encourage more consumers to shop cross-border.  
The availability of an effective sanction in case of  non-payment (in addition to the 
increase in the amount of the claim already provided by the Late Payment Directive) is 
also likely to increase the payment behaviour of debtors. This could reduce in the long 
term the number of disputes for debt recovery.  
It would need to be considered whether additional flanking measures, such as targeted 
information campaign about the new possibilitie s, would be necessary to produce the full 
benefit of the preferred option85. 
The increase in the number of preservation or ders which the preferred option is expected 
to bring about at least in the medium te rm risks having a negative economic impact on 
banks  at least in those Member States where th ey are currently not allowed to charge a 
fee for implementing the measure. Economic impact on legal professions  is likely to be 
neutral since any decrease in revenue is likely to be compensated by an increase in the 
number of cases.  
c) Social impact: The creation of a low-cost and efficient procedure for securing 
payment of sums due will also have a positive social impact by facilitating debt recovery for the most vulnerable creditors who cannot sp end much money to asse rt their rights in 
judicial proceedings. This concerns in par ticular maintenance creditors who depend on 
the payment of alimonies for their or th eir children's livelihood. The preferred option 
together with the implementation of the Ma intenance Regulation is expected to allow 
maintenance creditors to recover a notable pr oportion of claims from recalcitrant debtors.  
d) Impact on Member States: Member States will incur costs in implementing the 
preferred option. However, the costs of im plementing a self-standing procedure are in 
general considerably lower than the alternative option of harmonising national rules. Costs of familiarising the judges and enfor cement officers with the new instrument 
should be small and would, moreover, be one-o ff costs. The definition of time limits for 
certain key steps of the procedure is likely to  require some Member States whose judicial 
system is currently comparatively slow to incur higher implementation costs to comply 
                                                
 
85 Such an information campaign and training programme is currently being devised by 
Employment, social affairs and inclusion DG  with the assistance of Justice DG to promote the use 
of the European Small Claims and European order for payment procedure.  
 
EN 55   EN with the deadlines. The cost wi ll be however spread in time due to transition periods. The 
creation of a self-standing procedure envisage d in the preferred option will also respect 
Member States legal traditions because it will not require them to align their national system with the European procedure. Pr eservation orders under national law would 
continue to be available. 
e) Fundamental rights: T he preferred option would improve the right of the creditor to 
an effective enforcement of his debts. At th e same time, the new procedure would ensure 
that the rights of the debtor are safeguarded in full compliance with the requirements of the Charter of Fundamental Rights, notably by granting prompt and adequate remedies 
against the preservation orde r and by ensuring that amount s necessary to ensure his 
livelihood will be exempt from execution. 
f) Stakeholders: At the public hearing on cross-border debt rec overy on 1 June 2010, 
most of the 88 participants (businesses, academics, lawyers, bailiffs, banks) broadly welcomed the Commission initiative to wards a European procedure for bank 
attachment/preservation order provided that it is a precautionary measure only. 
The Member States have shown generally posit ive attitude on the current initiative for a 
preservation order, which is seen helpful as it would accelerate trans-border enforcement 
proceedings. 
The European Parliament adopted in May 2011 an own-ini tiative report with 
recommendations to the Commission on proposed  interim measures for the freezing and 
disclosure of debtor's assets in cross-border cases
86. The EP advocates the adoption of 
European instruments on the freezing of assets and on the disclosure of assets. Concerning the reezing of asse ts, the EP sees bank accounts as the core scope of the 
instrument. As regards the disclosure of a ssets, the EP supports an order obliging the 
debtor to disclose all of his assets. In particular on the freezing order, the 
recommendations of the EP comply to a very large extent with the current iniatiative on 
preservation order under option B. 
Comparing the options:  
Policy options Effectiveness 
to reach policy objectives  Economic 
impact 
 Social 
impact Impact on 
Member States Fundamental 
rights impact 
Status Quo 0 0 0 0 0 
Preferred ++ ++ + - 
(implementation + 
                                                 
86  EP plenary of 10 May 2011. JURI document 2009/2169(INI) of 16.2.2011, Rapporteur Arlene 
McCarthy (S-D/UK)  
 
EN 56   EN option costs) 
Thus, it can be concluded that the preferre d option improves the st atus quo situation. 
11. MONITORING AND EVALUATION  
In order to monitor the effective application of the new instrument, regular evaluation and 
reporting by the Commission will take place. To fulfil these tasks, the Commission will 
prepare regular evaluation reports on the appl ication of the new pr ocedure, based on 
consultations of Member States, stakeholde rs and external expe rts. Regular expert 
meetings will also take place to discuss appl ication problems and exchange best practices 
between Member States in the framework of the European Judicial Network in Civil and 
Commercial Matters. 
In order to ensure that adequate statistical data  is available to be ab le to assess the proper 
functioning of the European Account Preserva tion Order, the Commission will include in 
the proposed instrument a requirement on Memb er States to provide information on the 
application of the instrument in practice. Member States will notably be required to collect information on 
• The number of applications and the amount covered by  a European Account 
Preservation Order and their rate of success; 
• the number of recourses to the review procedures created to safeguard the 
debtor's rights and on the out come of these procedures.  
In the monitoring, specific atte ntion will be paid for the deve lopment of costs and delays.
 
EN 57   EN   
ANNEX I  
GLOSSARY OF LEGAL TERMS  
Term Definition 
Bank attachment (order) Order issued by a court or enforcement authority on the 
basis of a judgment on the merits which blocks the debtor's assets in a bank account and effects their transfer to the creditor. Ba nk attachments are the most 
frequently used form for enforcing monetary claims. Given that part of the effect of an attachment order is identical with the effect of  a preservation order, the 
term is sometimes used interchangeably with preservation orders.  
Civil and commercial matters 
 Matters relating to legal re lationships between private 
individuals, as opposed to the relationship between an individual and the State. 
Civil justice / civil law  Law that governs the relationships between private 
individuals, as opposed to  public law which governs 
the relationship between the in dividual and the State.  
Claim A possible right of the cr editor to the payment of a sum 
of money that has fallen due from the debtor 
Claimant Any natural or legal person bringing an action against 
somebody (the defendant) in court. In the case of a monetary claim, the claimant is usually the creditor or 
his representative. 
Defendant Any natural or legal pe rson against whom an action is 
brought in court. In the case  of a monetary claim, the 
defendant is usually the debt or or his representative. 
Enforcement The act of an enforcement agent by which a judgment 
or administrative order is  put into practice (e.g. a 
judgment ordering a debtor to pay 100 Euros may be enforced by attaching the requisite sum in a bank account of the debtor’s and then disbursing it to the 
creditor). Enforcement agents are either public officials 
or private persons like bailiffs mandated by the State to 
act on its behalf. 
Ex parte order/procedure A meas ure which is ordered ex parte  by a court is a 
measure decided by the judge on a request from the claimant without hearing the defendant. The aim is to speed-up the procedure and to keep the surprise effect 
 
EN 58   EN on the defendant. Ex parte or ders are available in many 
Member States for provisional and protective measures 
Exequatur  procedure Formal court procedur e by which a foreign judgment is 
declared enforceable (i.e. "validated" for enforcement) in the state where enforcement is sought. Under the proposed revision of the Br ussels I Regulation this 
intermediary procedure is abolished, except for judgments in defamation case s and collective redress. 
Further it is maintained in ot her EU instruments (i.e. in 
the Insolvency Regulat ion) and the proposed 
instruments on successions and matrimonial property rights. 
Preservation order Protective measure ordered by a court which prevents 
any transfer or withdrawal by the debtor of funds in the 
account preserved. The aim of a preservation order is to 
secure the availability of certain funds pending the outcome of proceedings on the merit. The preservation order is enforced by serv ing it on the bank and having 
the bank block the account. The funds will remain preserved until the judgment on the merit is being given. 
Jurisdiction 
 Jurisdiction is the power conferred upon a court or 
tribunal to hear a specific case. Where a case involves more than one country, the jurisdiction of EU courts in civil and commercial matters  is determined by EU 
instruments, notably Regulation Brussels I.  
Proceedings on the merits/substance Main proc eedings initiated by a party who wants the 
merits of his claim (unpaid debt, consumer claim, damage, maintenance) to be determined by the competent court.   
Provisional/protective measures Measures ordered by a court which are intended to 
preserve a factual or legal s ituation so as to safeguard 
rights the recognition of wh ich is otherwise sought 
from the courts on the merits. For example, a court can issue a preservation order against assets of the debtor in a bank account in order to ensure that these assets will not disappear during the time it takes to obtain a judgment on the merits.   
Recognition The act of accepting a judgment or other act of 
sovereignty of another state as if it had been issued by 
an authority of one’s own state. In civil and commercial matters, EU law (in particular Regulation 
Brussels I) ensures that a judgment given in one Member State is recognised in another Member State (unless the defendant raises specific reasons to refuse 
 
EN 59   EN recognition).  
 
EN 60   EN ANNEX II 
SUMMARY OF CONTRIBUTIONS TO THE PUBLIC CONSULTATION  
SUMMARY OF REPLIES TO GREEN PAPER  
ON IMPROVING THE EFFICIENCY OF THE ENFORCEMENT OF JUDGMENTS IN THE EUROPEAN 
UNION : THE ATTACHMENT OF BANK ACCOUNTS  
In October 2006, the European Commission presented a Green Paper on " improving the 
efficiency of the enforcement of judgments in the European Union: the Attachment of 
Bank Accounts "87. With the purpose of improving enforcem ent legislation within the EU, the 
Commission launched a broad consultation proce ss to gather opinions on the possible creation 
of an instrument aiming at improvin g cross-border debt collection.  
The Commission received a total of 67 replies from Member States and other interested 
parties. These can be accessed on the DG Justice, Liberty and Security website88, except in 
cases where the author has requested confid entiality. The replies ca n be summarised as 
follows. 
1. A POSSIBLE SOLUTION : A EUROPEAN SYSTEM FOR THE ATTACHMENT OF BANK 
ACCOUNTS  
Most of the replies thanked the Commission for its initiative and recognised the necessity of 
facilitating cross-border debt collection  in an area where free movement of capital and new  
information and communication technologies coul d contribute to the di ssipation of assets. 
Therefore, the creation of a new instrument was welcomed by many Member States and 
stakeholders through the establishment of an independent European procedure . 
While some Member States  and stakeholders were in favour of a directive, a majority of 
respondents regarded harmoni sation of national laws by means of a directive as complex  and 
unnecessary.  
A minority of respondents still had doubts about the necessity of any kind of instrument , 
preferring to await the results of the impact assessment in order to be sure that the instrument 
would meet a real need. A few stakeholders expressed their strong  disapproval of the 
Commission initiative, arguing that there was no legal basis for such an instrument  
A majority of replies agreed that the instrument should be no more than a protective order 
preventing the withdrawal and the transfer of monies standing to the credit of bank 
accounts.  However, some Member States  and stakeholders sugges ted that it should be 
possible to attach other assets, while others suggested that the orde r should not be merely 
protective, or that it should be a first step to wards a real harmonisation of the attachment of  
bank accounts. 
                                                 
87  COM(2006) 618 final, 24.10.2006 
88  http://ec.europa.eu/justice_home 
 
EN 61   EN  
2. PROCEDURE FOR OBTAINING AN ATTACHMENT ORDER  
2.2  Circumstances in which a creditor can apply for an Attachment Order 
Most of the replies expressed their support, or their willingness in prin ciple to agree to the 
order being available at all stages of the procedure , namely: i) prior to the initiation of 
legal proceedings on the merits of the claim, ii) concurrently with the raising of the principal 
action, iii) at any s ubsequent stage during the judicial proceedings and iv) during the period 
between the issuing of an order in one Member State and of the declaration of enforceability 
of the order in the Member State  where the debtor's account is situated. 
Agreement on the order being available at the firs t stage of the procedur e would be contingent 
on a clause stating that the main proceeding shou ld be filed within a fixed period of time  
or, in certain circumstances, be accompanied by  strong safeguards. While  it is necessary to 
seriously address the legal issues which this kind of availability might raise, there were some replies which were opposed to the order bein g available before the main proceeding had 
begun. 
2.2  Conditions of issue 
A majority of replies argued th at the conditions fo r granting the protec tive order should be: 
the probability of the existence of a claim  (fumus in boni juri)  and the probability of a 
difficult recovery  (periculum in mora ). Replies as to the degree of probability vary from 
likelihood to substantive grounds for action. Othe r conditions could be required, such as 
written evidence, proof that the debtor holds  an account in a specific institution, complete 
disclosure of all material facts, or proof th at the collection of the debt has already been 
partially unsuccessful. 
The question of imposing a mandatory security deposit or bank guarantee  on the creditor 
was generally approved as a practical way of protecting the debtor against wrongful use 
of an Attachment Order . Nevertheless, a balance has to  be struck between deterring 
illegitimate claims and raising too many obstacles to the use of such an order. Most of the 
replies argued that providing a bank guarantee/security  deposit should be left to the 
discretion of the court . 
2.3  Hearing of the debtor 
All the replies agreed that, in order to preserve the "surprise effect", hearing of the debtor 
prior to granting the atta chment should be avoided , at least in those cases where an 
attachment might be required, provided th at the debtor's rights are protected.  
2.4  Details of account information required 
Providing the full name and the address of the debtor - plus a registra tion number if the 
debtor is a legal entity - and the name and address of its bank and bank branch  seems to 
be a consensual requirement from the creditor's side. However, some replies argued that more 
information might be required, such as the account number , where known, although it was 
acknowledged that such an oblig ation might have a deterrent e ffect. Providing th e court with 
 
EN 62   EN the debtor's ID or soci al security number  was suggested as a way of avoiding any case of 
homonymy.  
Some replies suggested that the implementa tion requirements be drawn up in line with 
national legislation, or that th e order be transmitted to the enforcement authority,  which 
would be in charge of finding deta iled information about the debtor. 
2.5  Jurisdictional issues 
Opinions on this issue differed sharply. A majority  of the replies were in favour of granting 
competence to issue an order solely to the court having jurisdiction on the merit of the 
case according to Regulation (EC) No 44/200189. One reply suggested that sole jurisdiction 
should be granted to the cour t of the debtor's domicile.  
Others argued that joint jurisdiction should be granted  not only to the court having 
jurisdiction on the merit of the case, but also to the court of the Member State where the 
account is held , or to the court of the debtor's domicile . Several replies suggested that 
jurisdiction should be granted to  all three courts mentioned . A minority proposed 
modulating jurisdiction according to when the order is granted. One reply proposed that the 
court of the creditor's domicile  should have jurisdiction. 
3. AMOUNT AND LIMITS OF AN ATTACHMENT ORDER IN THE EUROPEAN SYSTEM  
3.1 Amount to be secured 
Limiting the attachment to a maxi mum amount was the favoured option  in most of the 
replies. For a majority of Member States  and stakeholders this maximum should include the 
amount of the claim, the legal fees and any interest . To simplify matters, the amount of the 
claim could be increased by a fixed per centage to cover costs and interest.  
3.2 Costs of the banks 
The enforcement of the order is likely to create certain costs for the banks  (execution of the 
order, monitoring of the account). The issue is wh ether those costs should be considered to be 
part of the public duty of the bank, as this might also lead  to the banks increasing the 
operating fees they charge all their customers. 
Very few respondents opposed the principle of remunerating the banks or were willing to 
leave this matter to national law. Some argued th at enforcement authorities, such as bailiffs, 
should be given an important role in serving the order, which would reduce additional costs 
for the banks.  
Most of the stakeholders declared themselves in favour of  charging specific fees for 
executing the order . A majority was in favour of capping the fees . Some replies suggested 
that fees should be set at EU level, while others  preferred to leave them to the discretion of the 
Member State. 
3.3 Attachment of several, joint and nominee accounts 
                                                 
89  Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement 
of judgments in civil and commercial matters, OJ L 12, 16.1.2001 p. 1. 
 
EN 63   EN In order to preserve the total amount of the claim, the creditor could be willing to attach 
several accounts simultaneously . Therefore, the question arises  as to how the order should 
be served so as not to block a sum which might  exceed the amount of the claim. The replies to 
the Green Paper suggested a wide range of possibilities. 
The option that garnered the most support was to allow the attachment of several accounts 
simultaneously and the release of th e surplus funds after the attachment  ordered by the 
court, by the enforcement authority, in accordance with Community rules. An alternative would be for the release to take place followi ng an agreement between the creditor and the 
debtor. 
The method of dealing with joint and nominee accounts  may also seem problematic. The 
protection of the interests of the co-holder of the account and of the third party holding 
monies on behalf of the debtor must be addressed, in conjuncti on with the actual effectiveness 
of the order. 
Most of the replies considered that attachment of joint accounts was feasible  once the co-
holder of the account  has been given the possibility to protect it s rights on the monies it 
owns  or if only half of the monies of the account are subject to attachment . 
Some respondents were against the attachment of nominee accounts  on the grounds that it 
was too complicated . 
3.4 Amounts exempted from execution 
Nearly all Member States and stakeholders welcomed  the exemption of certain sums from 
the attachment as a part  of the debtor's protection, enabling the debtor and its family to pursue 
a normal life. Particular attention should be paid to certain types of income , such as social 
benefits, as in some Member St ates these cannot be attached.  
As regards applicable law, most of the replies suggested that the law of the state of 
enforcement  or the law of the state of the debtor's habitual residence should apply,  while 
a minority proposed that rules or guidelines should be laid down at Community level .  
4. E
FFECTS OF AN ATTACHMENT ORDER  
4.1 Implementation 
Almost all of respondents agreed with the removal of the in terim measure ( exequatur ) in 
the Member State requested to enforce the or der granted by the court of another Member 
State. This option would allow the prompt serving of the enforcement order , which would 
have direct effect throughout the EU. 
Numerous Member States  and stakeholders advocated the use of electronic transmission as a 
way to make enforcement of the order easier, although this could involve creating a European 
database to gather all the information need ed for the transmission. On the other hand, a 
number of respondents stressed the technical difficulties in making resources of this kind 
available in all Member States with the same level of efficiency and data protection . 
Because of those possible obstacles, a number of replies suggested using the provisions 
 
EN 64   EN introduced by Regulation 1348/200090 to transmit the order by registered post  or to 
leave the transmission to the rules of the Member State of enforcement . Some 
respondents were against direct transmissi on from court to ba nk, and suggested the use of 
enforcement authorities (bailiffs) instead . Alternatively, it was proposed that the creditor 
should be made responsible for  transmission . 
The question concerning the time that would rema in for banks to implement the order and the 
effect this would have on ongoing operations gave rise  to differing replies. A majority 
acknowledged that the order should be served as quickly as possible , but opinions on 
when this should be done varied from immediate entry into force  to a couple of days , 
allowing the bank enough time to perform the operation. It was also suggested that an EU 
standard processing period should be laid down. 
A large majority of replies supported the idea that banks should inform the court or the 
enforcement authority whether and to what extent the order has been successfully 
implemented,  provided that the bank can do so in th e language with which it is the most 
familiar, and that banking secrecy can be preserved. Some suggested that the bank should 
also inform the parties  or only the creditor , who would then have the duty to inform the 
court. A very small number of Member States  and stakeholders rejected the idea that the 
banks should provide informati on, arguing that this would impose too big a burden on them. 
4.2 Protection of the debtor 
Protection of the debtor was a key issue in most of replies. Ensuring rapid information 
for the debtor as well as facilitating the debtor's access to court to lodge possible 
objections  were highlighted as issues of the utmost  importance, since the debtor would not be 
informed prior to the granting of the order. 
A large majority of Member States and st akeholders considered that informing the 
debtor of the exis tence and enforcement  of the order should be the duty of the enforcement 
authority and/or the issuing court . For others, this obligation should rest with the banks. 
They could also have the option of informing th eir customers if they so wished, as part of 
their customer relations. Anothe r option would be to make the creditor responsible for 
notifying the debtor . 
It was suggested that the instrument s hould set minimum rules, modelled on those  contained 
in Regulation (EC) No 805/200491 creating a European Enforcement Order for uncontested 
claims, or alternatively that  this matter be left to the application of national law . 
In the view of a majority of Member States and stakeholders,  the debtor should be 
informed after the or der has been executed , whereas a minority proposed  that the debtor be 
informed immediately after the issuing of th e order, or after the bank has been notified 
thereof. 
The responses to the Green Pa per overwhelmingly supported the  automatic lapse of the 
order after a certain time , as part of the mechanism to pr otect the debtor against wrongful 
                                                 
90  Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and 
extra judicial documents in civil and comm ercial matters; OJ L 160, 30.6.2000 p 37. 
91  Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating 
a European Enforcement Or der for uncontested claims , OJ  L 143 , 30.04.2004,  pp.  0015 - 0039 
 
EN 65   EN attachment. Therefore it was suggested that the order be closely linked to predefined time 
limits,  within which the creditor had to start the main proceeding or obtain an enforceable 
title. However, it was proposed that this  time period could be extended under certain 
conditions. 
The debtor's right to object to the order raised certain issues in connection with possible 
grounds for objection or the courts ha ving jurisdiction to hear them.  
As regards the grounds for objection, a number of replies suggested that this should be 
harmonised  at European level, whereas the overwhelming majority referred to the 
possibility of contesting any point that had been raised by  the creditor to obtain the 
order . Generally, replies focused on the demonstrat ion by the debtor of the non-existence of 
the claim, or the usefulness of the order, or any objections of a subs tantive or procedural 
nature. 
A closely related issue is the question of which court should be given jurisdiction to hear 
those objections . Several options were men tioned by the Member States  and the 
stakeholders. A majority of them would be willing to give jurisdiction to the court that 
issued the order,  while others would give jurisdiction to the court having jurisdiction on 
the merit of the claim (which could be the same court that issued the order),  the court of the 
debtor's domicile , the court of the State of enforcement , the court of the creditor's 
domicile, the court of the country  in which the account is held .  
4.3 Ranking of competing creditors 
As regards the ranking of competing creditors, where several creditors might ask for an 
Attachment Order against the same debtor , most respondents were willing to leave the 
matter to the application of national law , without any harmonisation at EU level. 
4.4 "Transformation" into an executory measure 
The large majority of the replie s rejected a clause on this i ssue in the future instrument, 
preferring it to be left instead to the applicat ion of national provisions and especially to the 
provisions  on enforceability under Regulation (EC) No 44/200192 and Regulation (EC) No 
805/200493. Thus, the two orders, i.e. both protective and enforceable , should remain 
separate processes without any automatic transformation . A few respondents agreed that 
a uniform procedure should be set up  allowing the court that issued the Attachment Order 
to change it into an enforceable measure. 
                                                 
92  Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement 
of judgments in civil and commercial matters, OJ L 12, 16.1.2001 p1 
93  Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating 
a European Enforcement Or der for uncontested claims , OJ  L 143 , 30.04.2004 p.  0015 - 0039 
 
EN 66   EN  
ANNEX IIIA 
SHORT SUMMARY OF THE  PUBLIC  HEARING  
On 1 June 2010, a public hearing on facilitating cross-border debt recovery was held in 
Brussels which gathered 84 partic ipants representing ministries of  justice, judges, law firms, 
bailiffs, academics, banks, businesses and citizens.  
The Head of Cabinet of Vice President Redi ng opened the hearing by a key note speech 
highlighting the shortcomings of the current situation and stressed the need to reactivate the single market as a source of economic growt h. The speech was well received by the audience 
which raised different aspects of the backgroun d for a European bank attachment: i.e. cross-
border versus domestic scope, debt evasion and criminal sanctions, need for more information 
on current enforcement schemes. 
The contractor for the IA study presented some pa rts of the interim repor t and the structure of 
the questionnaires that are being sent. 
The first speaker presented a research projec t on protective measures carried out by the 
Utrecht University which showed that the Dutch leave for an attachment is so easy to obtain 
that it is not as balanced as it should be for the protection of de btor's rights. In the light of 
these risks the structure of the European proposa l should be balanced by  an investigation of 
creditor's claim and the legal defence. 
The second speaker from the University of Heid elberg explained that under option 2 (revision 
on Brussels I) it would be possible to propo se a suppression of the exequatur for the 
enforcement of protective measures; however a self-standing European procedure for bank 
attachment could only be created through a specific in strument (Regulation).  
 A representative from the bailiffs' association focused on the role of his profession as only 
competent officials should ensure the protectio n of defendant's rights in domestic and cross-
border enforcement. An academic supported the ro le of bailiffs who have contributed to 
reducing the time for enforcement in Eastern countries where they have been introduced. 
 A representative from the European Banki ng Federation explained that banks are also 
interested in a European procedure as bank s are often creditors as such. It asked to 
quantify cross-border aspects of  the problem and that any co mmon procedure should include 
strict conditions. One question wa s raised about assets tracing. 
 In the general discussion, the following point s were raised: A majority of participants 
expressed that the envisaged instrument should be a provisi onal/protective measure only and 
not deal with the transfer of the funds to the creditor. The need to define responsibilities in 
data collection and the availability of the orde r (pre- or post-judgment) were also raised.  
 In the closure speech, a representative of  the Commission noted that nobody had challenged 
the problem definition, although more  data was required to substant iate its scale. The debate 
on the policy options had indicated a consensus in favour of a self-standing European order 
for the preservation of bank accounts, even though many details were still to be decided (e.g. 
whether the instrument should be limited to pr ovisional measures or also cover enforcement, 
 
EN 67   EN limited to the debtor or coveri ng other assets, protection of de btor's rights, protection of 
personal data, banks' costs etc). It was hope d that a Commission proposal could be put 
forward in 2011.  
ANNEX IIIB 
SHORT SUMMARY OF THE MEETING WITH MEMBER STATES ' EXPERTS  
The meeting was held on 31 March 2011 in Brus sels. The purpose of the meeting arranged by 
the Commission was to have an exchange of  views on the working document distributed by 
the Commission services - i.e. a preliminary dr aft Regulation on facilitating cross-border debt 
recovery. The meeting was chaired by Salla Saasta moinen, Head of Unit JUST A/1.  In total 
22 countries participated to the meeting -incl. DK which show ed great interest in the project 
despite the position of DK in the Treaties which does not allow it to participate to EU judicial co-operation. Five missing countries  were CY, LV, MT, NL, and RO.  
The Member States' experts generally welcomed  the future proposal, so the atmosphere has 
developed very positively towards acceptance of  Union measures concerning enforcement. In 
the general discussion, the Commission initiative for a preservation order was seen helpful as 
it would accelerate trans-borde r enforcement proceedings. The experts also provided 
constructive comments to the provisions of  the draft Regulation in view of making it 
consistent with existing EU instruments (Re gulation Brussels I, Re gulation on Service of 
Documents) and with national enforcement rule s – e.g. on the conditions for application for 
the order, for disclosure of banking informa tion, for remedies of the defendant/debtor. 
The results of discussion on the specific provisions of the working documents are as follows: 
Comments were made on a number of provi sions (e.g. scope, c onditions for issue, 
requirement for a security deposit, jurisdiction for the debtor's remedies etc). However, in 
general, the only point that rais ed serious concerns was the di sclosure of information on the 
bank accounts (Art 15-16) wh ich is clearly difficult to  several Member States. 
A majority of experts stressed that their comm ents are initial and asked more time to allow 
them to engage in necessary internal consultati on and in-depth examination of the text in the 
Member States. Upon several requests, the Memb er States were allowed to provide written 
comments to the Commission after the meeting. 
The EP participated with three persons who were impressed about the Commission's progress 
and speed. They were positive on the draft. The expert from the future PL Presidency thanked for good work and thought that the Commission' s proposal could advanc e well in the Council 
under the PL Presidency, 
 
EN 68   EN ANNEX IV 
REVIEW OF EXISTING SCHEMES FOR PRESERVATION ORDER AND BANK 
ATTACHMENT  
 
Table: Summary Matrix – Comparative An alysis of Bank Attachment Procedures94 
Key Features   Member 
State(s) to 
which key 
feature 
applies95 
Types of assets subject to  bank attachment orders 
Assets attached in rem  AT, BE, DA, 
DE, ES, FI, FR,  GR, IT, LU, MT, PT, RO, SI, SE and the UK (Scotland), 
Assets attached in personam  AT, CY, IE 
and the UK (England & Wales) 
All assets in bank account(s) can be 
attached FR, NL 
Carve-out for essential / pr otected assets BE, FI, FR, 
GR, IE, LU, MT, NL and PT. 
                                                 
94 CSES study, p. 90. 
95  According to the following sources: 
 (1) the website of the European Judicial Networ k in civil and commercial matters: Interim and 
precautionary measures. 
  ( http://ec.europa.eu/civiljustice/interim_measures/interim_measures_gen_en.htm ); and 
 (2) the annex on provisional measures (Securing the enforcement of judgment attachment/preservation 
injunctions) to “ Study No. JAI/A3/2002/02 on making more efficient the enforcement of judicial 
decisions within the European Union: Transparency of a Debtor’s Assets, Attachment of Bank Accounts, Provisional Enforc ement and Protective Measures ”, Professor Hess, 18/02/2004. It should be 
noted that 5 Member States  (Bulgaria, Cyprus, Estonia, Lithuania and Poland) are not covered by the 
above sources. 
 
EN 69   EN  
Procedure under which bank attachment orders may be issued 
Legal representation required ES, MT and PT
Standard of proof lower than for 
substantive proceedings AT, BE, CZ, 
DA, DE, ES, FI, FR, GR, HU, IE, IT, LU, LV, MT, NL, PT, RO, SI, SK, SE and the UK. 
Ex parte hearings permitted AT, BE, CZ, 
DE, ES(*), FI(*), FR, GR(*), IE, IT(*), LU, NL, PT(*) and the 
UK. 
Conditions under which bank attach ment orders are granted   
Applications must be  urgent AT, BE,DA, 
DE, FI, FR, GR, IT, PT 
There must be a risk of frustration AT, BE, FI, 
FR, DA, DE, ES, GR, IE, IT, LU, NL, PT, SK, SE and the UK 
Creditor may be required to provide security/undertaking AT, CZ,  DA, 
DE, ES, FI, FR, GR, HU, IE, IT, LV, MA, NL, RO, SE and the UK 
(England & 
Wales) 
Effects of bank attachment orde rs or equivalent measures 
Obligation on banks to provide 
information to courts  AT, BE, DA, 
DE, ES, FI, FR, GR, IT, LU, PT, RO, 
 
EN 70   EN SE , SI and the 
UK (Scotland) 
Time limit for expiry of BAO or equivalent measure AT, BE, DE, 
ES, IT, LU and the UK (England & Wales) 
Preferential rights affo rded vis-à-vis third 
party creditors AT, DA, DE, 
FR, ES, IE, PT, SE and the UK (Scotland) 
Criminal as well as civil offence CZ, DE, FR, 
GR, IT, MA, RO, SE and the UK (England & Wales).  
Possibility of appeal against gr anting of a bank attachment order 
Debtor may appeal AT, BE, CZ, 
DA, DE, ES, FI, FR, GR, HU, IE, IT, LU, LV, MT, NL, PT, RO, SI, SK, SE and the UK. 
Creditor may appeal BE, CZ, ES, 
IT, RO, SE, SI, SK and the UK (Northern Ireland).  
(*) = Exceptional cases only.  
 
Types of assets subject to bank attach ment orders or equivalent measures 
The type of assets that can be subject to a bank attachment order or equivalent measures in the 
legislation of Member States is the same, in that it consistently covers money held to the 
credit of the debtor  one or several bank accounts . As noted above, the preservation of the 
asset may operate in rem  or in personam .  Where the operation is in rem , there is some 
variation among Member States as to the extent of the assets subject to the bank 
attachment order or equivalent measure.   In other words, as to whether the preserved 
assets amount to the entire content of the ba nk account or accounts of the debtor, or only the 
amount corresponding to the disputed debt (plus enforcement costs).  
 
EN 71   EN France and the Netherlands  are examples of jurisdictions where the bank may be ordered to 
block the entire accoun t of the debtor.  However, in the material re viewed for this study there 
were very few references to measures that ar e capable of preserving all assets held in the 
debtor’s bank account(s) regardless of the size of  the disputed debt. Give n the severe potential 
consequences of preserving a debtor’s assets, a balance clearly needs to be struck between the 
creditor’s rights and those of defendants en shrined in the provisi ons of the European 
Convention of Human Rights and the EU Charter of Fundamental Rights  of the European 
Union.96  
In their national legislation, several Member States make provision for carve-outs for 
essential or protected items .97  However, the precise nature  of these carve-outs differs 
according to the jurisdiction.  For example, in France and Luxembourg the exemption applies to assets that are necessary in everyday life.  In Malta , it is not lawful to attach a Garnishee 
Order inter alia  to any salary or wages, or any pres cribed pension, benefit, allowance or 
assistance.  And in the Netherlands , wages and other claims to periodic payments are exempt 
from attachment up to a certa in prescribed limit.      
Procedures for bank attachment or der or equivalent measures  
Procedural considerations include such matters as: 
• Any requirement for legal repr esentation of the parties;  
• The standard of proof required by the court;  
• Whether the proceedings are ex parte  (i.e. the debtor is not heard).   
They also cover the circumstan ces in which a creditor can appl y for a bank attachment order 
or equivalent measure. In particular, a key issu e is whether, in the c ontext of a proposed EU-
wide instrument, it would be possible for a cred itor to lodge an application both prior to the 
main proceedings, concurrently with lodging th e main proceeding, or even during the main 
proceedings  if specific circumstances have arisen (Paragraph 3.1 of the Annex to the Green 
Paper). The key procedural i ssues are considered below. 
Requirement for legal representation 
The requirement for legal representation is mand atory (always or in certain circumstances) for 
applications for bank attachment orders or e quivalent measures in a relatively small number 
of Member States, namely: Malta ; Portugal  (if the value of the disputed debt is higher than 
3,740 Euros); and Spain . It should also be noted that in certain jurisdictions legal 
representation is not mandatory but in practice considered essential, namely: Luxembourg , 
and England and Wales . 
Standard of proof required by the court 
It is common practice for Member States to require a lower standard of proof  for establishing 
a claim on the merits in respec t of applications for precautiona ry measures than would be 
                                                 
96  Notably Articles 6 and 8 of ECHR and Articles 7 and 47 of the EU Charter.  
97  Member States with ‘carve-outs’ include Belg ium, Finland, France, Greece, Ireland, Luxembourg, 
Malta, Netherlands and Portugal.  
 
EN 72   EN required for the substantive proceedings. However,  there is not a common formulation for this 
lower standard of proof in the different Member States. In Denmark, Malta and Spain , 
prima facie  evidence is sufficient. But in Hungary, Slovenia and Sweden , to obtain an 
interim injunction the applicant must show that the eventual proof of the claim is probable  
while in Germany sufficient evidence  needs to be provided but the grounds for an application 
for Preventive Annex do not need to be proved . Elsewhere, common law tests are applied. In 
Ireland , it is necessary to show that there is “ a fair or serious que stion to be tried ”.  In 
England and Wales , the applicant must present a “ good arguable case ”.   In some Member 
States, such as Italy , there are no formal evidentiary requirements. 
As the Commission has noted (Paragraph 3.2.1 of  the Annex to the Green Paper), it is 
unlikely that the use of varying terminology to express the standa rd of proof in precautionary 
measures proceedings would be problematic in  the context of an EU -wide bank attachment 
order.  This is because the terms express a sim ilarly lower evidentiary standard than applies in 
the substantive proceedings.     
Ex parte hearings   
Whether or not proceedings are heard ex parte  (i.e. without the debtor being heard) has 
significant bearing on the efficacy of the precauti onary measure. If the bank attachment order 
or equivalent measure can be aw arded without an oral hearing at  which the debtor is present, 
the latter will have less notice of the pres ervation of his bank assets and therefore less 
opportunity to transfer these before  the measure becomes effective.  
The position in EU Member States varies a lot on the use of ex parte  hearings for bank 
attachment orders or equivalent measures in  their national legislation. Hearings can be ex 
parte  in Austria, Belgium, Czech Republic, En gland and Wales, France, Germany, 
Greece, Ireland, Italy, Luxembourg, Netherl ands, Northern Ireland, Portugal, Spain and 
Scotland (13 MS) In some of thes e jurisdictions, ex parte applications are granted in 
exceptional circumstances only (4 MS) .98 
Circumstances in which a creditor can apply fo r a bank attachment order or equivalent 
measure 
In all EU Member States, applications for a bank attachment order or equivalent measure are 
made by the creditor to the court with appropria te jurisdiction.  There is no single criterion for 
determining the court with appropriate jurisdiction across all Member States. 
In many countries, including the Czech Republic, Finland, Italy, Latvia, Portugal, 
Slovenia, Spain and Sweden  (8 MS)  applications are made to the court where the substantive 
proceedings are being (or are likely to be) heard. In  other Member States, the rules vary. 
Thus, in Belgium , applications are made to the court of seizures; in France , to the judge of 
the Regional Court with jurisdiction to decide  questions relating to the execution of civil 
judgments; in Luxembourg , usually to the President of the District Court or a judge acting in 
his stead; in the Netherlands , to the Interim Relief Judge of  the District Court; and in 
England and Wales , to the High Court.  
There is some discrepancy as to the possible tim ing of lodging the applic ation. It appears that 
in most Member States it is st andard to lodge an application for a bank attachment order or 
                                                 
98  In Greece, Italy, Portugal, Spain ex  parte applications are granted in ex ceptional circumstances only.     
 
EN 73   EN equivalent measure before submitting a claim for substantive proceedings.99 An exception is 
Spain , where commencement of the substantive proceedings is seen as a condition for 
applying for an Attachment of  Assets. It is possible to l odge the bank attachment order 
application after the substantive proceedings  have already commenced - certainly in Austria, 
England and Wales, Finland, North ern Ireland, Scotland, Slovenia, and Sweden (5 MS) 
It is presumed that it is also  possible to lodge the application concurrently with  the claim for 
substantive proceedings in these situations. 
It should be noted generally th at procedural timing requirement s for bank attachment orders 
or equivalent measures are not ‘harmonised’  across Member States.  By way of example: in 
some Member States, the court hearing the appl ication must give judgment within a certain 
number of days of the applic ation being heard (eight days  in the case of Belgium ) or being 
filed (seven days  in the case of the Czech Republic ); and in Germany , there is a time limit of 
one month  within which the creditor may apply for enforcement of the Annex Order or 
Interim Injunction. These variations  are unlikely to be of material  concern in the context of a 
possible EU-wide bank attachment order.  
Conditions under which a Bank A ttachment Order is granted  
Applications for a bank attachment order or equi valent measure in nationa l legislation have to 
satisfy a number of conditions:  
• Show urgency, i.e. the creditor must satisfy the court that rapid action is 
necessary because of the risk that the enfor cement of a future judgment would be endangered 
if the attachment order were not granted.   
• Demonstrate that the application is prima facie justified  or there exists a good 
arguable case for the claim (see the ‘standard of proof’ proced ural requirement  above);  
• Provide security  or some other undertaking  to the court so that the debtor’s 
losses can be compensated if it later transpires that the bank attachment order should not have 
been awarded.   
Taking the first of these conditions, urgency, it is generally necessary among Member States 
for applications for bank attachment orde rs or equivalent m easures to be urgent .  However, 
the nature of the urgency required is not  consistent across Member States.   
Taking some illustrative examples: in Belgium , ‘urgency’ implies that the debtor’s solvency 
is in doubt; in Denmark , that there is potential harm, fo r example imminent frustration of 
enforcement of the substantive claim (as in Italy , competing claims from other creditors is not 
sufficient); in Germany , that there is an immediate risk of  violation of the creditor’s rights; 
while in in other jurisdictions like Luxembourg , urgency is assessed by the court on a case by 
case basis. The need for ur gency is not omnipresent  in all EU jurisdictions, and there appears 
to be no such requirement in a nu mber of Member States including England and Wales, 
France, Finland, Latvia, Netherlands, North ern Ireland, Romania, Slovakia, Scotland, 
Slovenia, and Sweden (  9 MS). 
                                                 
99  Some Member States stipulate that the substan tive proceedings must be commenced by the creditor 
within a defined time period followi ng the granting of the applicatio n for precautionary measures, e.g. 
within one week (domestic claims) or two weeks (c ross-border claims) in De nmark; within one month 
in Finland; or within 30 days of notification of the precautionary measure to the debtor in Portugal.   
 
EN 74   EN Unlike the substantive condition of urgency, app licants must almost always be able to 
demonstrate  risk that the enforcement of the claim will be frustrated , i.e. because the 
assets in the bank account(s) will be transferred or dissipated.  The exceptions to this are 
Romania , where the creditor has the option rather than the requirement of proving that there 
is a risk that the decision will not be enforced  because of the removal or dispersal of the 
debtor’s assets (but the creditor mu st provide security – see below); and Slovenia , where the 
creditor is not required to demons trate any risk if he is able to  show it is pr obable the debtor 
would suffer only minor damage as a result of the precautionary measure (however, a risk is 
deemed to exist if the claim would have been enforced abroad) ( 2 MS).  
The court requires some form of security from the creditor  i n  m o s t  E U  M e m b e r  S t a t e s .  
This is to compensate the debtor for damage  flowing from the award of a bank attachment 
order or equivalent m easure which should not ha ve been granted, and to deter frivolous or 
vexatious applications for such measur es on the part of the creditor.   
Security is commonly provided in the form of  a deposit of monies with or bank guarantee 
provided to the court. Sums can also be paid into a bailiff’s deposit ac count (e.g. in Latvia). 
Security or other assets can also be  deposited at cour t (for example in Denmark ). In common 
law jurisdictions such as England and Wales  and the Republic of Ireland , the security takes 
the form of an undertaking as to damage s provided to the court .  This means that if the 
applicant fails in the substantive proceedings , he must compensate the debtor for losses 
resulting from the granting of the injunction.  
In other jurisdictions, the nature of the s ecurity is at the discretion of the court .  This is the 
case in Austria , France and Greece (3 MS). Security is generally not  required in Belgium , 
Czech Republic , Luxembourg , Slovakia , Slovenia  and Scotland (7 MS)  In Sweden , if the 
applicant is not able to provide security but, at the same time, demonstrates that he has special 
grounds for his claim, the court has the option of  releasing him from th e obligation to provide 
security .  
In some cases (e.g. Finland , Portugal  and Scotland ) the defendant  can prevent a bank 
attachment order or equivalent measure from being enforced by lodging security with the 
court. This enables the debtor to be protected against provisional measures whilst at the same 
time providing some assurance to the creditor that  the debtor accepts that a claim may need to 
be settled. 
Effect of Bank Attachment Or ders or Equivalent Measures 
As noted above, the purpose of a bank attachment  order or equivalent precautionary measure 
is to enable a creditor to preserve, as security  for the debt owed, money held to the credit of 
his debtor in one or several bank accounts. Howe ver, there are other important legal effects of 
the measures in the different EU Member States  that need to be cons idered.  Examples of 
these effects are: 
• The extent to which the bank attachment  order or equivalent measure imposes 
obligations on third parties (i.e. banks ), e.g. with regard to providing information; 
• Whether or not there a time limit after which  the bank attachment order or 
equivalent measure expires ; 
 
EN 75   EN • What the effect is of th e bank attachment order or equivalent measure on the 
debtor’s other creditors  (i.e. does it confer any prefer ential rights on the applicant); 
• Whether breach of the bank attachment orde r or equivalent measure gives rise to a 
criminal as well as a civil offence .   
A further notable issue is whet her the bank attachment or e quivalent measure has effect in 
personam , i.e. is directed to the person of the debtor  (as is commonly the case in common law 
jurisdictions such as England and Wales and some  civil law jurisdictions such as Germany) or 
in rem , i.e. is against the account itself (as is  the case in majority of Member States 100) (15 
MS). 
The key legal effects of bank attachment orders or equivalent measures are considered below. 
Obligation on third parties and information on debtors' accounts 
In rem  attachments are directed against the bank account(s) and so create a direct obligation 
on the bank to block any dealing with th e asset on the part of  the debtor. These  attachments 
create additional obligati ons on banks to provide information on debtors' accounts , raising 
questions of banking protec tion and data secrecy.   
Member States have different approaches to  preserving debtors’ da ta secrecy:  in the Czech 
Republic , at the written request of a court a bank  may report matters relating to debtors who 
are subject to banking secrecy without s eeking their agreement.  Likewise, in France  banks 
receiving a court request for a pr eventive attachment relating to a debtor-client are obliged to 
report immediately to a bailiff all the accounts opened in the name of the debtor, and the 
amounts recorded in the accounts.   
If the banks do not provide such  details, and have no legitimate  reason for not doing so, they 
may be ordered to pay the debt in place of the debtor.  Similar notification obligations exist in 
Portugal and Slovenia . By contrast, in Greece  and Romania  there are more stringent 
confidentiality requirements on the data that banks can provide under local law.  In Italy , 
banks have confidentiality obligations vis-à-vis other third parties , and may inform third 
parties only that the funds are not  disposable – the reasons for the preservation of the account 
must be kept private.     
Time limit for expiry of bank attach ment orders or equivalent measure 
There is an absence of uniformity in EU Member  States’ national legislation when it comes to 
time limits  applicable to bank attachment  orders or equivalent measures. Thus: the time limits 
can be specified at the discretion of the court ( Austria, Ireland and Luxembourg ); for a 
specified period (for example three years in Belgium ); or valid until there is an order of the 
court to the contrary ( Finland ). 
Effect of the bank attachment order or equiva lent measure on the debtor’s other creditors 
                                                 
100  There are at least 15 Member States where the bank attachment order or equivalent measure has effect 
in rem , namely Austria, Belgium, De nmark, Finland, France, German y, Greece, Italy, Luxembourg, 
Portugal, Romania, Spain, Scotland, Slovenia and Sweden. 
 
EN 76   EN It is often not clear what effect a bank att achment order or equivalent measure has on the 
creditor in relation his ranking in relati on to the debtor’s other creditors. In Finland , a seizure 
order does not afford the applicant any preferenti al right to the funds wh ich are the subject of 
the order; whereas in Scotland , if the creditor wins his case he enjoys a preferable right over 
the property arrested.  
The Green Paper notes (Paragraph 5.3) that while some Member St ates give priority to the 
first creditor serving the protective order on the bank,101 others apply a ‘group principle’ 
similar to the distribution of monies in insolv ency proceedings. The ‘g roup principle’ does not 
confer any advantage on the creditor who has been granted a bank attachment or equivalent 
measure. There is in addition a smaller, thir d category of Member States, being common law 
jurisdictions such as England and Wales  and Ireland , where preservation orders do not 
affect the ranking of comp eting creditors at all. 
Civil/criminal offences for breaching B ank attachment or equivalent measure 
It appears that breach of a ba nk attachment order or equivalent measure can be a criminal as 
well as civil offence for the debtor in some  but not all jurisdictions.  These include: France, 
Germany, Greece, Italy, Malta, Romania and Sweden . In a few jurisdictions (such as 
Czech Republic  and England and Wales ), not only the debtor but also third parties face 
potential criminal liability for assisting in the breach of a measure.  
Possibility of Appealing agains t a Bank Attachment Order  
There generally exists an appeal mechanism  against a bank attachment  order or equivalent 
measure in the national legislation of EU Memb er States. However, the nature and scope of 
the appeal is not standardised.   Relevant variables are: 
• Whether it is open to both parties to app eal the decision, or al so a third party; 
• The timeframe for making the appeal. Ther e is a possibility in some Member 
States to convert a protective measure into an execution measure (enforcement) when the 
judgment on the substance of the claim become s definitive (as pointed out by the 2006 Green 
Paper).   
• Whether an appeal (in the strict legal sense) is not available, but there is 
nevertheless an ‘effective’ means of appeal.              
In all Member States there exists some form of appeal mechanism against a bank attachment 
order or equivalent measure.  However, the nature  and scope of the appeal is not standardised.  
In particular: in several Member States ( Belgium, Czech Republic, Italy, Northern Ireland, 
Romania, Slovakia, Slovenia, Spain and Sweden ) (9 MS)  the creditor , if his application is 
denied, may lodge an appeal as well as the debtor .  In rarer cases, a third party may also 
appeal ( Belgium , England and Wales , Finland  and Gibraltar ). 
The timeframe for the making the appeal  varies in different Member States, ranging 
from 15 days of delivery of the written decision for the Czech Republic  to five days  
from the date of the judgment for Romania . In a minority of jurisdictions, a 
                                                 
101  The Heidelberg report (p.72) st ates that these Member States are Austria, Denmark, England, France, 
Germany, Ireland, Portugal, Sp ain, Scotland and Sweden.  
 
EN 77   EN conventional appeal is not available, but th ere is nevertheless an ‘effective’ means of 
appeal.  This could take the form of an option to apply to have the issuance of the 
bank attachment order or equivalent measure revoked ( Greece ), or an option to apply 
for a new measure suspending the e ffects of the previous measure ( Luxembourg ). 
 
EN 78   EN ANNEX  V 
SUMMARY OF EBTP  SURVEY DATA 
Commercial Disputes and Cr oss Border Debt Recovery 
The European Business Test Panel (EBTP) was used to obtain views from the business 
community on the extent to which commercial dis putes arise in cross-bo rder trade in Europe 
(including the extent to which choice of court ag reements are used in international contracts) 
and the scope for action to faci litate the recovery of debts.  The survey was conducted over a 
one-month period from mid-July to mid-August 2010. 
1. Objectives of the consultation The EBTP survey was designed to provide evidence-based support to the work of the 
European Commission on possible amendments to the ‘Brussels 1’ Regulation (Council 
Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters) and a re lated initiative to  facilitate the recovery of 
cross-border debt. 
2. Respondents A total of 422 responses were obtained to the EBTP survey with 281 members of the EBTP 
choosing to complete the questionnaire, i.e. an overall response rate of 66%. Further 
discussion of the results of the survey is th erefore based on 281 responses which means that 
figures provided in the feedback report may differ from those included in the standard 
summary report generated by the on-line consu ltation tool and provide d together with the 
feedback report. 
The number of respondents who completed the questionnaire ranged from 0 to 81 in the 29 
EU/EEA countries in which the EBTP is located. In te rms of individual Member States , the 
most represented countries were DE (19%), PL  (11%) and LU (8%). Other countries ranged 
from 0% to 7%. 
As regards business sectors , the top three most represented sectors were real 
estate/renting/business activities (20%), manufacturing (19%) and wholesale and retail trade, repair of motor vehicles, motorcycles an d personal and househol d goods (15%). Other 
business sectors ranged from 0%  to 11%. As regards the size of the businesses responding to 
the survey, 63% were small enterprises (<50 em ployees), 16% medium-sized (>50 but <250 
employees) and 21% large enterprises (>250 employees). 
3. Analysis of survey responses Below, we provide a summary of the survey responses. The questionnaire was divided into 
two main sections – commercial disp utes and cross-border debt recovery. 
3.1 Commercial disputes • 83% of the businesses said that they provi de services or sell goods to consumers or 
businesses in another EU Member State. 
 
EN 79   EN • 33% of the businesses had been involved in a commercial dispute in their own country 
compared with 23% where the other party was in another Member State and 6% where the 
other party was outside Europe. 
• Amongst the factors considered important in deciding whether or not to pursue a 
commercial dispute through the cour ts in another EU Member St ate, the value of the claim 
was ranked by 92% of the respondents as either ‘v ery important’ or ‘important’, followed by 
the cost of going to court (88 %) and the complexity of the pr oceedings (84%). These factors 
were also the topranked factors in relation to disputes between parties from the same country 
but in each case, they were seen as less impor tant in deciding to go to  court than in cross-
border cases. 
• The costs of litigating abroad were seen as being ‘much mo re expensive’ by 39% of 
businesses compared with 22% who said it was ‘a little more expensive’ and 12% who said 
the costs were about the same. Very few respondents said litigating abroad was cheaper although quite a high proportion (23%) indicated that they did not know. 
• Dispute resolution methods – under half of survey respondents (42%) who had been 
involved in a cross-border di spute resolved it by going to court in another country, a 
significantly lower percentage than in the case of disputes taken to court where the creditor 
and debtor were in the same country (55%). 
• Choice of court agreements are broadly used in the interna tional contracts – almost 70% of 
business providing services or selling goods in another EU Memb er State have a choice of 
court agreements in their international contract s. 7,7% of the respondents reported that in the 
past five years their contractua l counterpart did not comply w ith the clause designating the 
competent court and took the disp ute before a different court. 
3.2 Cross border debt recovery • Difficulties with debt recovery when doing business in other EU  Member States were seen 
as ‘very important’ in deciding whether or not to engage in cross-border trade by 32% of 
survey respondents and as ‘important’ by a furt her 39%. The smaller the business, the more 
likely it was to highlight the impor tance of debt recovery issues  as a factor in cross-border 
trade. 
• Various methods were used by su rvey respondents to help with managing the risk of non-
payment including payment in advance (20% of re spondents), factoring, credit insurance, 
invoice discounting. With the exception of cred it insurance, less than  half the respondents 
considered such methods as adequately mee ting their needs. Small businesses were more 
likely than larger firms to ask for payment in ad vance. The explanation fo r this could be that 
smaller firms do not have the cash flow required to defer payment. 
• Only 11% of the survey res pondents had tried to obtain a bank attachment order in 
another EU Member State (there were nearly twice more (19%) who had done so in their own 
country). In 53% of cases, the order was grante d (that means a lower rate (i.e. of 23%) than 
for applications through the courts in the home country (i.e. 65%). Concern that the defendant 
would move his assets away was the main r eason for seeking a bank attachment order. 
• The EBTP results point to other factors apar t from the risk of assets being moved as 
influencing the decision on whether or not to a pply for a bank attachment order . In 
 
EN 80   EN particular, the cost-benefit analysis that applie d to decisions regardi ng cross-border litigation 
generally also applied with bank attachments with the valu e of the claim being ‘very 
important’ or ‘important’ to most (96%) resp ondents followed by the cost of proceedings 
(67%). 
• Very few survey respondents (3%) favoured the status quo with the highest proportion 
(39%) arguing that the rules of different Eu ropean countries rega rding bank attachments 
should be harmonized so they are the same, or that there should be mutual recognition of national procedures (13%). A further 23% favoured a particular method of action through the 
creation of the European bank attachment order . The remaining respondents did not offer 
an opinion. 
• 23% of the EBTP respondents said they woul d be ‘a lot more likel y’ to be likely to 
undertake (more) cross-border trad e if rules are adopted at a Eu ropean level ma king it easier 
to obtain a bank attachment order. A further 29%  said they would be quite likely to do so. 
4. Conclusions Overall, the EBTP survey results indicate that  the risk of facing a commercial dispute and 
non-payment of debts is a significant deterrent to  engaging in cross-border trade in the EU’s 
Internal Market. The figures on the extent of the use of the choice of court agreements in 
international contracts evidences that such agreements are important tool in the cross-border 
trade. The cost of litigating abroad is higher than in the home country and this together with other complications puts businesses off going to c ourt in another EU Member State to try and 
settle a dispute. Specifically in relation to debt recovery, similar factors mean that the 
business still hesitates before taking the decision  to seek to obtain a bank attachment order in 
another country. The status quo is not seen as satisfactory and most businesses would 
welcome an initiative at a European  level to improve the situation.
 
EN 81   EN  
ANNEX VI 
LAWYER 'S FEES IN THE MEMBER STATES  
 
Negotiable Legal 
Fees 
Average Legal Fees  
Regulation of law or of Bar EU  
Member State 
Fee €/h x 10h Freely 
negotiable Exists 
 Applies if 
nothing 
was 
agreed Set out 
rules on 
agreements 
Austria 347 3470 √ √ √ no 
Belgium 203 2030 √ no - - 
Bulgaria 46 460 √ √ no √ 
Cyprus 116 1160 √* √ √ √ 
Czech 
Republic 87 870 √ √ √ √ 
Denmark 347 3470 √ no - - 
Estonia 203 2030 √ no - - 
Finland 347 3470 √ √ + √ 
France 347 3470 √ √ + √ 
Germany 347 3470 √* √ √ √ 
Greece 203 2030 √ √ no √ 
Hungary 87 870 √ √ no √ 
Ireland 521 5210 √ √ + + 
Italy 521 5210 √ √ √ no 
Latvia 347 3470 √ no - - 
Lithuania 87 870 √ no - - 
 
EN 82   EN Luxembourg 203 2030 √ √ no √ 
Malta 116 1160 √ √ ? √ 
Netherlands 347 3470 √ no - - 
Poland 87 870 √ √ no √ 
Portugal ** 203 20308 + √ + + 
Romania 87 870 √ √ + √ 
Slovakia 87 870 √ √ √ no 
Slovenia 203 2030 √* √ + √ 
Spain 347 3470 √ √ + √ 
Sweden 347 3470 √ no - - 
United 
Kingdom *** 521 5210 √ √ √ √ 
Average 241,04 2410,40     
 
* on higher fee, there is a mi nimum in the regulation(s) 
** regulation for solicitors and advocates, but no regulation for lawyers, barristers 
*** freely negotiable  in Scotland; in Engla nd and Wales for barrist ers and solicitors in 
contentious businesses, a regula tion does not exist in Scotland. No data on Northern Ireland 
+ no data 
 
EN 83   EN  
ANNEX VII 
ESTIMATING CROSS -BORDER BAD DEBT LEVELS  
There is no data available from Eurostat or other official sources on the level of bad debt 
resulting from intra-EU trade. Debt collec tion agencies are an alternative source of 
information on bad debts. In addition to c onsulting FENCA, we sought the views of three 
large debt collection companies. However, a lthough we could obtain information on bad debts 
overall (i.e. domestic and cross- border), none of those we consu lted were able to provide us 
with an estimate specifically of  the level of cross-border debt.102 
To estimate the proportion of debts arising from  cross-border trade that  are written off, we 
have therefore adopted two approaches combining different sources of data.  
 (i)  Estimate based on Eurostat and European Payment Index Taking the first approach, according to the 2009 European Payment Index, 2.6% of all 
transactions in the EU are writte n off (in other wo rds are bad debts)
103. However, as noted 
above, this includes both debts arising from tran sactions within Member States as well cross-
border trade between them.  
In 2009, total intra-EU trade stood at €2,194 billion according to Eurostat (down from €2,714 
billion in 2008 because of the global economic downturn). There is  relatively little statistical 
data available on intra-EU trade and so it is not  possible to disaggregate this global estimate to 
provide a more detailed breakdown. 
Domestic demand in the EU stands at €11,672 billion acco rding to Eurostat104.  Intra-EU trade 
at €2,194 billion thus accounts for 18.8% of to tal domestic demand in the EU. Assuming 
debts are written-off at a similar rate for dome stic and cross-border transactions, this would 
mean that cross-border bad debts amount to 0.45% of total bad debts (18.8% of the 2.6%105; 
0.188 x 0.026 = 0.0048 = 0.48%).  The total estimated bad debt  resulting from cross-border 
transactions can thus be  estimated at €56 billion  (€11,672 billion x 0.48%).   
(ii)  Estimate based on Informati on from Debt Collection Agencies 
According to an analysis of their annual repo rts and other publicly-a vailable documents, the 
three largest debt collection companies - Atra dius, COFAE and Interum Justitia - together 
represent some 20% of the European debt collection business by value.106  In 2009, the three 
                                                 
102 CSES draft final report (page 24) quotes the 2010 Intrum Justitia European Payment Index (EPI) which 
suggests that the 2.6% average amount being written off by companies across Eu rope equals 300 billion 
euros. However, this covers both domestic and cross-border debt. 
103 2009 European Payment Index 
104 Eurostat, all figures are for 2009 
105 Representing bad debts according to the European Payment Index 
106 Atraduis Annual Report, 2009  
http://global.atradius.com/images/stories/Annual% 20Reports/2009/atradius_annual_report_2009.pdf  
Intrum Justitia Annual report, 2009 http://www.intrum.com/files/IJ_2009_EN.pdf   
COFACE financial report, 2009  
 
EN 84   EN companies handled a combined total €2,885 million of debt.  According to their market share 
(the combined 20%), we can therefore estimate the total debt collection market to represent 
€14,426 million (€2,885 million x 5): 
Company Debt 
(€million) Notes 
Atradius 1,358.6  includes Turkey 
COFACE 1,065.0  includes 
Switzerland 
Intrum Justitia 461.7   n/a 
Total 2,885.3   n/a 
This estimate covers both domestic and cross-bor der trade.  However, it is reasonable to 
assume that the collection of cross-border bad debts accounts for a high proportion of their 
business. If it is assumed that twice as much debt collected by the companies is cross-border 
rather than domestic, the rati o of cross border debt would th erefore be 37.6% (18.8% based on 
the Eurostat data explained above  x 2). The total amount of cro ss debt collected by specialised 
companies can therefore be estimated at €5,424 million (€14,426 million x 37.6%).  
According to Intrum Justitia ’s annual report, debt collec tion agencies currently cover 
approximately 10% of the debt collection market in mature economies (i.e. the total of written 
off or bad debt).  We have confirmed through a telephone interview that this figure is similar 
for the European market. Considering the total de bt collection market is estimated to be worth 
€14,426 million and represents 10% of domestic and cross-border bad debt in the EU, the 
total amount of bad debt is ther efore € 54,240 million (€5,424 million x10). 
It needs to be borne in mind th at estimates provided by debt collection agencies drawing on 
their own business may underestim ate the level of cross-border debt. This is because smaller 
businesses often do not use debt collection compan ies because of the costs involved (see draft 
final report, pages 17, 32-33) while larger unde rtakings do not use them because they have 
their own methods of trying to retrieve debts.  
(iii) Conclusions The two different calculation methods provide quite  similar estimates. According to the first, 
based on Eurostat data and the European Paym ent Index, the total value of cross-border bad 
debt is €56 billion  in 2009. The second method, based on information from a sample of three 
major debt collection agencies suggests that cross-border bad debt amounted to €54.2 billion 
in 2009 (a relatively small diffe rence of some €1.8 billion). 
                                                                                                                                                        
 
http://www.coface.com/Cof acePortal/ShowBinary/BEA%20Repos itory/COM_en_EN/documents/Finan
cial_report_2009