COMMISSION STAFF WORKING PAPER Executive summary of the Impact Assessment
Date: 2011-07-25
Institutions: European Commission
Subjects: bank deposit, cross-border cooperation, debt, enforcement of ruling, judicial cooperation

EUROPEAN COMMISSION 

Brussels, 25.7.2011 
SEC(2011) 938 final 

COMMISSION STAFF WORKING PAPER 

Executive summary of the 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) 937 final} 

 
 
 
 
  
 
 
1. 

INTRODUCTION 

This  initiative  aims  to  facilitate  cross-border  debt  recovery  by  improving  access  to  and  the 
efficiency  of  the  preservation  of  bank  accounts  in  the  European  Union.  It  will  contribute  to 
strengthening  of  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.  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. 

1.1. 

Political mandate and existing instruments 

The  2009  Stockholm  Programme  states  that  "the  European  judicial  area  should  serve  to 
support economic activity in the Single Market". It therefore "invites the Commission to put 
forward appropriate proposals for improving the efficiency of enforcement of judgements in 
the  EU  regarding  bank  accounts  and  debtors'  assets".  Accordingly  the  Commission  Action 
Plan Implementing the Stockholm Programme refers to an initiative for a "Regulation on the 
attachment of bank accounts". Existing instruments in the area of civil justice do not deal with 
enforcement. 

1.2. 

Consultation and expertise 

In preparation of this initiative, the Commission published a comparative study in 2003 and 
carried  out  a  public  consultation  through  a  Green  Paper  in  October  2006.  Empirical  data 
supporting the elaboration of the impact assessment was collected by a further external study 
and a European Business Test Panel Survey. The Commission also organised a public hearing 
and several meetings with experts on enforcement. Additional comments were provided by an 
inter-service  group  within  the  Commission.  This  Impact  Assessment  was  reviewed  by  the 
Impact  Assessment  Board  (IAB).  The  recommendations  issued  in  the  IAB's  opinion  have 
been  accommodated  in  this  revised  version  of  the  report  as  follows:  (i)  the  analysis  of  the 
problem has been strengthened by explaining better the stages of cross-border debt recovery 
and  the  problems  remaining  in  this  area  after  the  revision  of  Regulation  Brussels  I,  in 
particular  the  assumptions  underlying  the  estimates  of  the  economic  effects  of  the  measure 
have  been  clarified,  (ii)  the  assessment  of  the  baseline  scenario  has  been  expanded  and  the 
added value of the preferred option highlighted; (iii) the assessment of the impacts has been 
improved,  in  particular  assessing  further  sub-options  reflecting  important  elements  of  the 
legislative proposal, with specific focus on time-limits as proposed in the new initiative. (iv) 
Finally the legal concepts have been clarified and a glossary was added in Annex. 

1.3. 

Respect of Fundamental Rights 

The impact on fundamental rights was assessed in order to ensure that the proposed schemes 
fully respect the rights and principles set out in the Charter of Fundamental Rights. The main 
provisions  affected  by  the  Commission  initiative  are  the  following:  the  right  to  an  effective 
remedy (Article 47 subparagraph 1), the right to a fair trial (Article 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 protection (Article 8). 

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2. 

PROBLEM DEFINITION 

2.1. 

The problem of cross-border debt recovery 

At  present,  a  creditor  seeking  to  recover  his  debt  in  another  Member  State  faces  significant 
difficulties.  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  for  provisional  measures  in  which  a  court 
issues  an  interim  decision  such  as  an  order  preserving  a  bank  account  on  the  basis  of  a 
summary  analysis  of  the  case.  In  line  with  the  political  mandate,  this  initiative  focuses  on 
facilitating to obtain provisional measures for preserving a debtor's assets and on improving 
the  efficiency  of  enforcement  of  decisions  in  the  European  Union.  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 swiftness. The creditor may also have difficulties to find out the whereabouts of his 
debtor's account, in particular 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. 

2.2. 

Different stages of proceedings 

Different  stages  of  obtaining  and  enforcing  a  preservation  order  are  illustrated  in  the  figure 
below. 

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In  many  Member  States,  the  creditor  can  apply  for  a  provisional  measure  preserving  his 
debtor's  assets  already  prior  to  launching  proceedings  on  the  merits.  If  the  provisional 
measure  has  to  be  enforced  in  another  Member  State  than  the  one  where  it  was  issued,  the 
creditor  needs  to  have  the  decision  declared  enforceable  there  (in  the  so-called  exequatur 
procedure).  Under  the  current  Regulation  Brussels  I,  exequatur  can  be  obtained  for 
provisional measures issued in another Member State, except if they have been issued without 
a hearing of the debtor (so called ex parte orders). With the revision of Regulation Brussels I, 
the requirement of exequatur should be abolished, i.e. decisions given in one Member State, 
including certain ex parte orders, will be automatically enforceable in another Member State. 
However,  enforcement  of  preservation  orders  will  remain  governed  exclusively  by  national 
law. 

2.3. 

The causes of the current problem 

Problem 1: Conditions for issuing preservation orders vary throughout the EU: This makes it 
more  difficult  for  creditors  to  obtain  a  preservation  order  in  some  Member  States  than  in 
others. Differences relate for example to the level of proof required by the court to issue the 
order (e.g. or to the specific condition that there is a serious risk that the ultimate enforcement 
of the judgment will be rendered impossible).  

Problem  2:  Difficulties  to  obtain  information  on  debtor's  bank  account:  In  many  Member 
States it is difficult for a creditor to obtain information about the whereabouts of his debtor's 
bank  account.  There  are  also  Member  States,  where  it  is  not  possible  to  obtain  an  order 
obliging  the  banks  to  disclose  whether  the  debtor  holds  an  account  with  them.  In  other 
countries however, the enforcement authorities have access to the tax registers. In the area of 
family  maintenance,  the  Maintenance  Regulation  establishes  a  system  of  administrative 
assistance to creditors by central authorities which are granted access to information held by 
public authorities. 

Problem  3:  Costs  of  obtaining  a  preservation  order  are  higher  in  cross-border  cases:  The 
revision  of  Regulation  Brussels  I  will  save  creditors  about  €2,000  as  the  average  cost  of 
exequatur.  However,  cross-border  cases  currently  trigger  additional  costs.  This  concerns  in 
the  first  place  the  need  to  involve  an  additional  lawyer  licensed  to  practice  in  the  country 
where  proceedings  take  place.  There  are  also  costs  of  the  translation  of  documents  into  the 
official language accepted by the court or the costs for serving documents across borders.  

Problem  4:  Differences  in  national  enforcement  systems  and  length  of  enforcement 
procedures  in  Member  States:  Even  in  domestic  cases  it  can  take  between  1  day  and  more 
than 30 days in Europe to serve a court decision on debt recovery. In cross-border situations, 
delays will generally be even longer. Differences in national enforcement systems also result 
in  additional  delays  for  enforcement  or  even  inexecution  of  decisions.  In  some  Member 
States, enforcement is carried out by bailiffs acting outside the court system, in others this is 
done by the court or by a central administrative agency. 

2.4. 

Scale of the problem 

Problems of cross-border debt recovery affect in the first place businesses which are trading 
or providing services in other Member States. The scale of the cross-border bad debt that can 
be  potentially  secured  can  be  estimated  between  €1,12  and  €2bn  on  the  basis  of  different 
sources of data. According to recent Eurobarometer surveys, consumers are still reluctant to 
shop cross-border. 14% of consumers shopping at a distance encountered problems with the 

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transaction. Over half of them consider that it is difficult to access civil justice in another EU 
Member State. The monetary value of 'problematic' cross-border maintenance claims can be 
estimated to amount up to €268 million per year.  The situation for maintenance creditors will 
improve to some extent due to the Maintenance Regulation. 

2.5. 

Need for action at EU level 

Any new European instrument on the preservation of bank accounts in cross-border situations 
would  be  a  matter  of  recognition  and  enforcement  of  a  judicial  decision  and  it  would  also 
eliminate  the  obstacles  to  the  proper  functioning  of  civil  proceedings.  It  would  as  such  be 
covered  by  lit  a)  and  f)  of  Article  81  TFEU,  that  also  calls  for  measures  particularly  when 
necessary  for  the  proper  functioning  of  the  internal  market.  As  regards  subsidiarity,  the 
problems  (namely  cost  of  proceedings,  difficulty  to  obtain  disclosure  of  debtor's  assets  and 
inefficient  civil  procedural  rules)  have  a  clear  cross-border  dimension  and  they  cannot  be 
adequately attained by Member States alone. 

3. 

OBJECTIVES 

The general objectives of the initiative are to facilitate the recovery of cross-border claims for 
citizens  and  businesses,  particularly  SMEs,  to  increase  confidence  of  traders,  to  improve 
payment morale of debtors, to reduce the risks involved in cross-border trade and to improve 
the  efficiency  of  enforcement  of  judgements.  The  specific  objective  is  to  increase 
effectiveness  of  the  procedure  for  cross-border  enforcement  by  enabling  creditors  to  obtain 
preservation orders or bank 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  in  cross-border  situations,  and 
increasing awareness that a European procedure is available. 

4. 

RETAINED POLICY OPTIONS 

Option  A:  Status  quo  after  revision  of  Regulation  Brussels  I.  Under  this  option,  the 
Commission would not take any action in addition to the proposal for a revision of Regulation 
Brussels I adopted in December 2010.  

Option  B:  Creation  of  a  European  Account  Preservation  Order.  This  option  would  create  a 
new  European  procedure with  protective  effect,  which  would  supplement  existing  remedies 
under national law without requiring EU Member States to modify their national law on civil 
procedure  or  their  enforcement  systems.  The  European  procedure  would  regulate  the 
procedure  for  issuing  the  preservation  order  for  bank  accounts  as  well  as  rules  for  its 
implementation by the bank holding the account targeted. 

Option  C:  Harmonising  national  rules  for  the  preservation  of  bank  accounts.  This  option 
would harmonise the national rules of civil procedure for the preservation of bank accounts in 
cross-border cases by way of a European directive. 

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5. 

EVALUATION OF POLICY OPTIONS AND IMPACT ASSESSMENT 

5.1. 

Option A: Status Quo after revision of Regulation Brussels I (if adopted) 

(a) Objectives to achieve: Maintaining the status quo would have no effect on the problems 
identified and would not contribute to achieving the specific policy objectives outlined above.  

(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 
cases1. This means that companies make less use of the possibility to secure payment of their 
debts by way of preservation orders in cross-border transactions than in domestic cases and, 
as a result, write off more cross-border than domestic debt. This amount can be quantified at 
2. The difficulties of cross-border debt recovery are putting 
between €441 Mio and €800 Mio
off companies, in particular SMEs, and consumers from making full use of the Single Market. 
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 
around by 10% compared to the current situation, leading to the increase of the debt preserved 
corresponding to estimated €68-120 Mio. 

(c) Fundamental rights: The Status quo would not contradict the requirements of the Charter 
of Fundamental Rights of the European 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 civil judgment is currently not covered by EU instruments. 

(d) Views of Stakeholders: There have been no requests to keep only the status quo. 

5.2. 

Option B: European Account Preservation Order 

a)  Effectiveness  to  achieve  policy  objectives:  Option  B  achieves  the  general  policy 
objective  to  facilitate  the  recovery  of  cross-border  claims  for  citizens  and  businesses  by 
making it easier to obtain a preservation order securing the recovery of cross-border debt. It 
achieves the specific policy objectives to a significant extent. It will allow a creditor to use 
an efficient and uniform European procedure under the same conditions in all Member States 
of the EU – e.g. without a prior hearing of the debtor, thereby safeguarding the surprise effect 
of the measure, to obtain information about the whereabouts of his debtor's accounts without 
having to pay the services of private debt collecting or investigation agencies. It will reduce 
lawyer's costs and translation costs. Costs of banks and bailiffs will be made more transparent 
by  obliging  Member  States  to  fix  a  single  fee  for  their  respective  services.  It  will  enable  a 
creditor to obtain and enforce a preservation order more quickly by introducing time-limits for 
certain key steps of the procedure. 

b)  Economic  impact:  Option  B  would  have  a  positive  economic  impact  and  contribute  to 
reducing the overall amount of the €55bn bad debt. It would enab le companies to secure the 
recovery  of  additional  bad  debt  of  between  €373Mio  and  €600Mio
  per  year,  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 year

 over the time. An estimation of cost savings for 

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Difference  between  11.6%  of  companies  applying  for  a  bank  attachment  cross-border  and  19.2% 
applying for it domestically.  
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. 

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companies  currently  involved  in  cross-border  trade  would  be  in  the  range  of  €81,9Mio  to 
€149Mio  annually 3.  Option  B  will  benefit  in  particular  SMEs  and  it  is  likely  to  encourage 
more  companies  and  consumers  to  make  full  use  of  the  possibilities  offered  by  the  Single 
Market.  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  improve  the  payment  behaviour  of  debtors.  The  increase  in  the  number  of 
preservation  orders  risks  having  a  negative  economic  impact  on  banks  where  they  are 
currently not allowed to charge a fee for implementing the measure. 

c) Social impact: Option B together with the implementation of the Maintenance Regulation 
is  expected  to  allow  maintenance  creditors  to  recover  a  notable  proportion  of  claims  from 
recalcitrant debtors.  

d)  Impact  on  Member  States:  Implementation  costs  are  considerably  lower  than  the 
alternative  option  of  harmonising  national  rules.  Costs  of  familiarising  the  judges  and 
enforcement  officers  should  be  small  and  would  be  one-off  costs.  Member  States  whose 
judicial  system  is  currently  comparatively  slow  might  incur  higher  implementation  costs  to 
comply with the procedural deadlines. Option B will respect Member States legal traditions. 

e)  Fundamental  rights:  Option  B  would  improve  the  right  of  the  creditor  to  an  effective 
enforcement of his debts. At the 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  order  and  by  ensuring  that  amounts  necessary  to  ensure  his  livelihood  will  be 
exempt from execution. The instrument should 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, the debtor's data is not kept for longer than is necessary 
and that the debtor has a right to recourse against the processing of his data. 

f) Views of stakeholders: A large majority of stakeholders and the European Parliament call 
for developing specific European instrument for cross-border debt recovery. 

5.3. 

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 lesser extent than Option B. However, Option C would not allow national 
procedures to coexist with the harmonised "European" procedure. 

(b) Economic impact: Option C would have a slightly different economic impact than option 
B.  While  it  would  align  the  conditions  of  issue  of  preservation  orders,  e.g.  ensuring  that 
throughout  the  Union,  preservation  orders  could  be  obtained  under  the  same  conditions, 
eventually differences between the procedures would continue 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.  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 States' national procedural and enforcement law are 
likely to continue to require the involvement  of a lawyer licensed to practice in each of the 

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This assumes that 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.  This  amount  is  multiplied  with  the  estimated  current 
number of cross-border preservation orders per year of between 34.000 and 61.828.  

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Member States in which the preservation order is to be obtained and/or enforced. 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. 

(c)  Member  States:  Option  C  would  require  Member  States  to  implement  the  rules 
harmonised by the directive into their national law. Option C would therefore be more costly 
to implement and be more intrusive into national legal traditions.  

(d) Fundamental rights: Option C would have a positive impact on the right of the creditor 
to an effective enforcement. Compliance with the requirements of the Charter concerning the 
protection of the defendant would equally be required. 

6. 

COMPARING THE OPTIONS  

Key: ++ = very positive impact; 0=no or neutral impact; - - = very negative impact. 

Policy options 

Effectiveness 
reach 
to 
objectives 

Economic 
impact 

Impact 
Member States 

on 

Fundamental 
Rights 

Option  A:  Status  Quo  after 
revision 
Regulation 
Brussels I  

of 

0 

Option B: European Account  
Preservation Order  

++ 

Option  C:  Harmonisation  of 
national 
for 
rules 
preservation orders 

+ 

0 

0 

0 

++ 

+ 

1)implementing costs 
– 

+ 

2) legal traditions 0 

1)implementing costs 
– –  

+ 

2) legal traditions – –  

In  conclusion,  option  A  fails  to  address  efficiently  the  policy  objective,  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 intrusive for national legal systems. Option B 
offers the most comprehensive solution, and therefore option B is the preferred option. 

Sub-options  of  option  B  have  been  considered  as  follows:  First,  the  European  procedure 
would enable the creditor to obtain a preservation order normally without a prior hearing of 
the  debtor  (ex  parte),  thereby  safeguarding  the  surprise  effect  of  the  measure.  Second,  the 
court  having  jurisdiction  on  the  merits  of  the  case  should  be  also  competent  to  issue 
preservation orders. It will need to be determined whether additional courts are competent to 
deal  with  the  objections  of  the  debtor  against  the  order  –  i.e.  the  courts  of  the  debtor’s 
domicile. Third, provisions would allow the creditor to obtain information on the whereabouts 
of his debtor's account: Either a disclosure order issued by the court would oblige all banks 

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located in a given Member State to check if the debtor holds an account with them and, or the 
court  or  the  enforcement  authorities  would  get  direct  access  to  existing  public  registers 
containing  the  necessary  information.  Lastly  as  regards  time-limits,  the  European  procedure 
would  require  no  slower  implementation  than  for  national  measures,  or  it  could  introduce 
specific time limits – e.g. for issuing the order, for serving it on the bank and the debtor, or for 
deciding on an application for review by the debtor. 

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