COMMISSION STAFF WORKING PAPER IMPACT ASSESSMENT
Date: 2011-07-25
Institutions: European Commission
Subjects: bank deposit, banking secrecy, claim, enforcement of ruling, intergovernmental cooperation (EU), judicial cooperation in civil matters in the EU

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} 

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DISCLAIMER:  This  report  commits  only  the  Commission's  services  involved  in  its 
preparation  and  does  not  prejudge  the  final  form  of  any  decision  to  be  taken  by  the 
Commission 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

2.5. 

3. 

Introduction...................................................................................................................5 

Political Mandate and Consultation of Interested Parties.............................................5 

Political mandate and existing instruments ..................................................................5 

Organisation and timing ...............................................................................................7 

Impact Assessment Board.............................................................................................7 

Consultation and expertise............................................................................................8 

Respect of Fundamental Rights ....................................................................................9 

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 recovery and current legal framework ...........................11 

3.2.1.  Provisional measures for the preservation 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 information on debtor's bank account in some 

Member States ............................................................................................................16 

3.3.3.   Problem 3: Costs of obtaining a preservation order are higher  in cross-border 

cases............................................................................................................................17 

3.3.4.   Problem 4: Differences in national enforcement systems and length of 

enforcement procedures in Member States.................................................................18 

3.3.5.   Reasons for suboptimal use of preservation 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 

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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. 

5. 

5.1. 

5.2. 

5.3. 

5.4. 

5.5. 

6. 

7. 

7.1. 

7.2. 

7.3. 

8. 

9. 

9.1. 

9.2. 

9.3. 

9.4. 

Objectives ...................................................................................................................29 

Description of Policy Options ....................................................................................30 

Option A: Status quo after revision of Regulation Brussels I ....................................30 

Option B: Creation of a European Account Preservation...........................................31 

Option B1: Bank attachment - Creation of a European Order for  preservation of 
bank accounts combined with  transfer of monies to the creditor ..............................31 

Option C: Harmonising national rules for the preservation of bank accounts ...........31 

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 

Discarded policy options ............................................................................................32 

Evaluation of Retained Policy Options and Impact Assessment................................33 

Option A: Status Quo after revision of Regulation Brussels I....................................33 

Option B: European Account Preservation Order ......................................................34 

Option C: Harmonisation of national rules on the preservation of bank accounts .....40 

Comparing the Options...............................................................................................42 

The preferred policy option and its further sub-options .............................................43 

Sub-options relating to the hearing of the debtor .......................................................43 

Sub-options relating to jurisdiction for issuing and contesting the order...................44 

Sub-options relating to obtaining information on the debtor's account......................46 

Sub-options relating to time-limits for issuing and enforcing the preservation 
order............................................................................................................................49 

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10. 

11. 

Summary of the Preferred Option and its Impact .......................................................52 

Monitoring and Evaluation .........................................................................................56 

Annex I  Glossary of legal terms ..............................................................................................57 

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 meeting 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 

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1. 

INTRODUCTION 

The Internal Market offers citizens and companies 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  does  not  pay  voluntarily  the  sums  due  -  e.g.  the 
purchase  price,  damages  for  breach  of  contract  or  family  maintenance  –  citizens  and 
businesses are faced with the problem of having 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 more cumbersome, lengthy and costly for him to 
obtain provisional measures*1 to preserve assets of his debtor 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 can easily escape enforcement measures* by swiftly moving 
their monies from a bank account in one Member State to another. A creditor, however, 
has little chance of blocking a debtor's bank accounts 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  bank  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 relationships 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 Growth2. 

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  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  judgments  in  the  EU  regarding  bank  accounts  and  debtors'  assets".  The 

1 
2  

Terms marked with an asterix are defined in the Glossary of legal terms in Annex I.  
At the European Council meeting on 26 March 2010, European Union leaders set out their plan for 
“Europe  2020”,  a  strategy  to  enhance  the  competitiveness  of  the  EU  and  to  create  more  growth 
and jobs. http://ec.europa.eu/europe2020/index_en.htm 

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Commission  Action  Plan  Implementing  the  Stockholm  Programme3  confirms  this 
political  mandate  by  referring  to  an  initiative  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 the 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 proposed to confine reflection initially to the 
problem of bank attachments. The Council endorsed this approach in its 2000 Programme 
of Mutual Recognition by calling upon the Commission 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 instruments creates a European 
provisional measure or covers the enforcement 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 enforceable title is exclusively governed by national 
law. This approach does not change with the 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.  They  do  not  create  a  European  procedure  for 
obtaining a protective measure. 

A  previous  attempt  by  the  Commission  to  follow  up  on  this  political  mandate  by 
proposing  several  provisions  on  enforcement,  including  the  creation  of  a  preservation 

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COM(2010) 171 final of 20.4.2010 
OJ C 033, 31.1.1998, p. 3. 
OJ. C 12, 15.1.2001, p. 1, 5 at point  2 (a) (iii),(iv) and p. 6 at point 2. 
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. 
Proposal  for  a  Regulation  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in 
civil and commercial matters (Recast), COM (2010) 748 final of 14.12.2010. 
Regulation  (EC)  No  861/2007  establishing  a  European  Small  Claims  Procedure,  OJ  L  199  of 
31.7.2007. 
Regulation  (EC)  No  1896/2006  creating  a  European  order  for  payment  procedure,  OJ  L  399  of 
30.12.2006. 

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order, in the specific context of family maintenance 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  includes  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  initiative  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 the Commission to prepare the present 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  Enterprise  and  Industry,  Health  and  Consumer  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  accommodated  in  this  revised 
version of the report. In particular, the following changes have been made: (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. The size of the document has been controlled as much as 
possible. 

10  

11 

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. 
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. 

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2.4. 

Consultation and expertise 

To  better  understand  the  status  quo,  the  Commission  commissioned  a  study  on 
"Improving the enforcement of judicial decisions in the European Union: transparency of 
the debtor's assets, attachment of bank accounts; provisional enforcement 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 create 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 preparation 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 the European Business Test Panel (EBTP)14, the 
results of which were published in August 2010. 

A public hearing on facilitating cross-border debt recovery took place on 1 June 2010 and 
was attended by 84 participants representing ministries of justice, judicial authorities, law 
firms, bailiffs, academics, banks, businesses and citizens' groups. The hearing confirmed 
the  results  of  the  2006  consultation  that  there  was  general  support  for  the  creation  of  a 
European procedure for the preservation 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,  lawyers,  bailiffs,  banking  in-house  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  experts  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 controversial, no delegation contested the need 
for  and  added  value  of  the  envisaged  instrument  (for  a  summary  of  the  meeting  see 
Annex IIIB).  

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14 

http://ec.europa.eu/civiljustice/publications/docs/enforcement_judicial_decisions_180204_en.pdf 
SEC(2006) 618. 
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.  

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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  provisions  of  the  Charter.  For  this  reason,  all 
legislative  proposals  proposed  by  the  Commission  are  subject  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 recovery, this report will 
pay  particular  attention  to    fundamental  rights  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 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).  

Right to an effective remedy, Article 47 subparagraph 1 of the Charter 

According to Article 47 subparagraph 1 of the 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 tribunal. 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 creditor to recover his claim within a reasonable period of time 
and on the basis of efficient procedures19.  

Right to a fair trial, Article 47 subparagraph 2 of the Charter 

The    envisaged  initiative  must  respect  the  fundamental  rights  of  the  debtor/defendant. 
Article 47 subparagraph 2 stipulates that everyone is entitled to a fair and public hearing. 
Inherent in this provision is the right of defence which includes – in the area of civil law - 

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OJ 2010 C 83/02, 389ss. 
Cf. Article 6 TEU. 
Cf. Article 51 (1) of the Charter. 
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 Charter of fundamental rights". COM(2009) 205. 
European  Court  of  Human  Rights,  19.3  1997,  Hornsby  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. 

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the right to be heard and the right to make known its views on the truth and relevance of 
the facts, objections and circumstances put forward by the other party20.  

Right  to  respect  of  human  dignity,  as  enshrined  in  the  Preamble  and  Article  1  of  the 
Charter 

Article 1 states that human dignity is inviolable. The envisaged initiative must respect the 
debtor  and  his/her  family's  dignity  at  all  levels  of  the  debt  collection  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 enshrined 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  everyone  has  the  right  to  the  protection  of  personal  data 
concerning  him  or  her.  The  consequences  flowing  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 personal data are complied with.  

3. 

PROBLEM 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, diverging levels of efficiency of the organisation 
of justice, additional costs triggered by cross-border 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  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.  

20 
21  

Commentary to the Charter of Fundamental Rights, p. 368. 
Council  of  Europe  recommendation  CM/Rec(2007)8  of  the  Committee  of  Ministers  to  member 
states on legal solutions to debt problems. 

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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.  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 moveable 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 provisional measures in cross-border cases 

Provisional  measures  such  as  preservation  orders  can  be  of  crucial  importance  in  debt 
recovery proceedings because they enable a creditor to prevent the debtor from removing 
or dissipating his assets during 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 matter of days or weeks.  

However,  a  creditor  seeking  to  obtain  provisional  measures  to  preserve  assets  of  his 
debtor in a cross-border situation 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  provisional  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  the  law  of  the  Member  State  where  the  competent  court  is 
located.  As  a  result,  the  creditor  is  often  either  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  swiftness.  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 recovery and current legal framework 

The different stages of cross-border debt recovery can be described as follows. 

3.2.1.  Provisional measures for the preservation 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 

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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 merits or to the court at the place 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  Regulation  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 State22. The two basic 
cross-border  scenarios  resulting  from  the  jurisdiction  rules  are  illustrated  in  Figure  A1 
and  A2.  It  should  be  noted  that  a  case  can  also  involve  three  or  four  different  Member 
States. Thus, the creditor, competent court, debtor and the account to be preserved could 
all be located in different Member States. 

Figure A1 

Figure A2 

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 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). 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 the existing EU instruments.  

22  

As  a  general  rule,  the  court  at  the  defendant's  domicile  has  jurisdiction*  although  in  many 
situations,  the  claimant  can  alternatively  go  to  another  court,  e.g.  at  the  place  where  the  goods 
have been delivered or at the place where the damage occurred. If parties have 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.  

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12 

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With  the  revision  of  the  Brussels  I  Regulation,  if  adopted  as  proposed,  the  current 
situation  will  improve  in  two  respects:  First,  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 therefore 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 diverges as to whether and from whom the 
creditor can obtain information about the whereabouts 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  the  proposed  initiative  on  that  process  are 
illustrated in Figure B: 

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Figure B 

Even when the exequatur will be abolished, there still remains the request of hearing the 
debtor  under  Regulation  Brussels  I  if  the  national  law  or  the  judge  so  requires.  So  the 
surprise  effect  will  not  always  be  achieved.  According  to  the  current    initiative  it  will 
possible  to  proceed  to  the  enforcement  without  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 legal protection for the debtor, too. The balance 
between efficiency and legal protection will be safequarded in the current initiative by 1) 
security  provided  by  the  claimant,  2)  the  responsibility  of  the  claimant  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 revised 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 Regulation Brussels I and the current initiative is 
that  the  latter  provides  an  uniform  and  self  standing  European  court  and  enforcement 
procedure. There would be provisions e.g. concerning the application, taking of evidence, 
the  preservation  of  several  or  joint  accounts,  immunities  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 initiative would be "target specific": In practice bank accounts are 
priority  targets  for  preservation  orders  because  of  their  high  net  value  (no  need  for  a 
realisation of assets). The problem is the easy transferability of funds on bank account. At 
the  same  time,  legal  protection  of  the  debtor  is  important  because  the  monies  on  bank 
accounts  are  often  essential  to  ensure  the  livelihood  of  private  persons  and  are  of  vital 
importance for businesses. Therefore a general regulation on precautionary measures that 
would be applicable to all kinds of assets would not operate in best possible way when 
preserving bank accounts, and there is need for an instrument which 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  effect  of  blocking  the  money  in  the  account 
pending the outcome of proceedings on the merits. 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  largely  correspond  to  those  outlined  above  for 
provisional measures with the notable difference that proceedings on the merits can only 

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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 existing 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  existence  of  these  procedures  might  reduce  the 
need for protective measures like preservation orders because a judgment on the merits 
can be obtained relatively quickly. 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  jointly  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 preservation orders vary throughout the EU  

The  conditions  required  under  national  law  for  obtaining  provisional  measures  vary 
considerably under national law.25 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.  For  example,  in  the  Netherlands,  a  preservation  order  can  be  obtained  within  a 
matter  of  hours  on  the  basis  of  an  application  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 Kingdom, a preservation order is only issued if 
the creditor submits sufficient evidence, e.g. an affidavit by a witness, satisfying the court 
that his case has a good, although not necessarily certain prospect of success.  

Differences also relate to the specific conditions in which a preservation order is granted. 
In most Member States, the creditor must demonstrate that there is a serious risk that if 
the  preservation  order  is  not  issued,  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 that 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 existence of competing creditors and the risk of 
the debtor becoming insolvent do not suffice to justify a preservation order26. In contrast, 

23 

24 
25 

26 

However,  in  certain  cases  jurisdiction  on  the  merits  lies  with  the  courts  in  the  Member  State  of 
enforcement, cf Article 22 (5) Regulation Brussels I.  
Up to €2.000.  
Hess study on improving the efficiency of the enforcement of judgments in the European Union, 
p. 128ss. 
Hess study, precit, p. 129. 

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in France, Belgium and Luxembourg, it is generally sufficient to show that the debtor is 
somehow in financial difficulties.27  

Finally,  differences  exist  with  respect  to  the  possibility  to  obtain  a  preservation  order 
without a prior hearing of the debtor. This can be essential to safeguard the surprise effect 
of  the  measure  since  a  recalcitrant  or  fraudulent  debtor  which  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 parte28.  

Annex IV provides an overview of the differences relating to the conditions for issuing a 
preservation order in the Member States.  

As a result, the possibility to obtain a preservation  order in  a  given case  or to obtain it 
without prior notice to the debtor varies considerably 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 maintenance creditors. This problem is 
not addressed by any of the existing 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 fact 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,  United  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 information 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  bank  accounts  or  other  register  containing  the 
relevant information (e.g. a tax register) which would be accessible 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 disclose whether the debtor holds an account 

27 
28 
29 

30 

31 

Hess study, precit., p. 129. 
Hess study, precit, p. 130. 
See Hess study on making more efficient the enforcement of judgments in the European Union, p. 
20 ss. 
With the exception of the common law countries (UK, IRL, CY) where the preservation order is 
directed against the person of the debtor himself and not against specific bank accounts.  
This is the case in the Scandinavian countries where the enforcement authorities 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.  

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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  depend  themselves  on  the  information  that 
they have previously collected or which is publicly available. This problem is particularly 
relevant for citizens trying to recover a maintenance claim abroad and consumers having 
encountered  problems  in  e-commerce  because  account  information  is  usually  not 
exchanged in these transactions. In a commercial 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  will  arise  in  situations  where  such  information  was  not 
contained  in  previous  correspondence  or  the  "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  problem  of  access  to  information  is  already  to 
some  extent  addressed  by  the  Maintenance  Regulation  which  establishes  a  system  of 
administrative  assistance  to  creditors  by  central  authorities  which  are  granted  access  to 
information  held  by  public  authorities33.  Outside  the  scope  of  family  maintenance, 
however, this issue is not addressed by any existing Union instrument.  

3.3.3.  Problem  3:  Costs  of  obtaining  a  preservation  order  are  higher    in  cross-border 
cases  

Finally,  the  costs  of  obtaining  and  enforcing  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  cross-border  litigation  by  abolishing  the  need  to 
obtain a declaration of enforceability for a court 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 the 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  State  other  than  the  creditor's  domicile,  the 
creditor will need a lawyer licensed to practice in the foreign jurisdiction to represent him 

32 
33  

34 

This is the case e.g. in Spain.  
Cf  Article  61  of  Regulation  (EC)  No  4/2009  on  jurisdiction,  applicable  law  and  the  recognition 
and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 
7, 10.1.2009, p. 1. 
Cf  Impact  Assessment  accompanying  the  proposal  for  a  regulation  on  jurisdiction  and  the 
recognition and enforcement of judgments in civil and commercial matters (Recast) of 14.12.2010. 

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before the court. In most Member States, it is not obligatory to be represented by a lawyer 
in  proceedings  for  provisional  or  protective  measures.  Neverthelesss,  the  creditor  will 
usually seek legal advice in order to determine 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  for  a  creditor  to  be  represented  by  a  lawyer 
licensed to practice in the country where proceedings 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 contact the foreign lawyer directly himself but charge his local 
lawyer or in house legal counsel with the task to identify a competent colleague abroad 
and to supervise and liaise with him on this particular case. Consequently, 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 the 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  situations  (as  illustrated  in  case  study  1b)  where  a 
creditor  seeks  to  obtain  preservation  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. The 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  enforcement  procedures  and  divergences  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 relevant for provisional and protective measures 
the effectiveness of which by definition depends 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 

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give indications as regards the enforcement 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  that  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 decision 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 also cause problems for creditors in cross-
border situations which result in additional delays for enforcement 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  situations,  frictions  between 
systems  frequently  occur  in  practice  with  the  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 considers that it has not been properly served41. 

35 

36  

37 

38 

39 
40 
41 

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 considerably 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  debtors  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 conducting court proceedings.  
Council  of  Europe,  European  Commission  for  the  efficiency  of  Justice  (CEPEJ),  European 
Judicial Systems, edition 2010, Table 13.17. 
See  the  comparative  analysis  of  national  reports  by  B.  Hess  in  Andenas/Hess/Oberhammer, 
Enforcement agency practice in Europe, 2005, p. 31ss. 
This  is  the  case  in  France,  Belgium,  Luxemburg,  the  Netherlands,  Portugal,  Scotland  and  many 
Eastern European countries.  
This is the case e.g. in Austria, Spain and Denmark. 
Sweden and Finland. 
Examples given by the members of the expert group in oral discussion.  

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Differences  also  exist  as  to  who  is  responsible  for  serving  the  order  on  the  bank  (the 
creditor or the issuing court), how much time the bank has to implement the order, how 
and when the creditor is informed that the order has actually caught funds and how long 
the order remains in force. 

3.3.5. Reasons for suboptimal use of preservation 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  disputes  vs.  domesting  disputes  have  been 
identified as follows, as well as their relative contribution to the problem.  

Table: Reasons for suboptimal number of preservation orders in cross-border disputes 

Factors 

1. Barriers/costs/delays addressed by the revision 
of  Regulation  Brussels  I  such  as  those  related  to 
exequatur 

2.  Problems/costs/delays  being  addressed  by  this 
initiative (varying conditions, lacking information 
on  debtor's  assets,  length  etc,  including  the 
problem  of  poor  awareness  to  be  addressed  by 
information campaigns) 

Contribution  to  the  problem 
(order of magnitude) 

+  (only  part  of  the  problem 
since the general revision of 
Regulation Brussels I cannot 
address  the  specific  issue  of 
a  cross-border  preservation 
order) 

+++  (major  contribution  as 
remaining  obstacles 
can 
only  be  addressed  efficently 
by a specific instrument) 

This table shows that the revised Regulation Brussels I will improve the current situation 
only  to  a  limited  extent,  since  as  a  general  measurethe  Regulation  Brussels    is  not 
designed  to  address  this  specific  issue)  and  that  this  initiative  will  add  a  noteworthy 
benefit on top of the effects of the revised Regulation Brussels I. Even with the current 
initiative, there may remain certain factors still making the use of preservation orders in 
cross-border  disputes  somewhat  more  burdensome  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 States. It is particularly relevant for SMEs 
which generally have limited financial resources and are less likely to have recourse to 
the  available  commercial  options  for  reducing  the  risk  of  non-payment  like  credit 

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20 

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insurance or factoring. The problem is also relevant for companies currently not engaged 
in  cross-border  trade  to  the  extent  they  are  put  off  from  doing  so  by  the  difficulties  of 
debt recovery abroad. 

The  problem  concerns  also,  albeit  to  a  lesser  extent,  consumers  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 having to pursue claims for family maintenance 
from a debtor, e.g. a parent or former spouse, domiciled in another Member State.  

3.4.2.  Companies 

According to the 2010 Intrum Justitia European Payment Index (EPI)42 there has been an 
increasing tendency for businesses to write-off bad debts in Europe. 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 ranking as compared to other creditors or the 
creditor loses his case on the merits. A further 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 the 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  merits  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 reflect the actual size of 
these categories. The amount of cross-border bad debt that can potentially be secured can 
be estimated at between €1.12 and €2bn, as it will be presented below in more detail. 

42  

43 

44 

2010  Intrum  Justitia  European  Payment  Index  (page  6).  Intrum  Justitia  is  a  credit  management 
services  company  with  3.400  employees  serving  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 average level of write-offs is generally above 3% 
in the newer EU Member States and below this in the older Member States. 
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  causing  problems  for  recovering  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. 
For details see Annex VII. 

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Total bad debt 

Recoverable bad 
debt 

Debt recoverable 
from bank accounts 

Debt  
frozen in bank accounts

Debt actually 
recovered 

Figure C 

At present based on the EBTP survey, it can be estimated that around 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  million  businesses  appearing  thus  to 
have  problems  in  cross-border  payments  and  debts.  Relatively  few  make  use  of  the 
possibility to apply for a provisional measure preservation their 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 for 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  preservation  order  was  made  easier,  this  type  of 
procedure would be used much more often48. 

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, the 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 
46 
47  
48  
49  

50 

EBTP survey question 10a. 
EBTP survey question 17. 
EBTP survey, question 19b. 
EBTP survey question 23 
CSES  study, Chapter 4.2.2 page 54, 55 on  the basis  of sample  data  from  13  European  financial 
institutions.  
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. 

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orders in a cross border situation 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 preservation 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 potentially over time reach the one using it in 
domestic situations (i.e. 19,2%). This would represent additional 65,5 % of recoverable 
debt. For the purposes of scale-up estimates, this figure was narrowed at 60% from which 
further  10%  have  been  deducted  as  the  already  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  addition  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 current 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  exact  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-border  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 increase of the debt preserved by about 10%. Following the 
same reasoning as above, on the basis of these 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 relation 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  shopping  at  a  distance 
encountered problems with the transaction53. About three-quarters of those complained to 
the seller or service provider, but only half of those whose request was not satisfied, took 
further action. A major concern of consumers is that their rights will not be sufficiently 
protected if a problem arises. Over half of them consider that it is difficult to access civil 

51 
52  

53  

CSES study, p. 57. 
It is difficult to determine which estimate is more accurate. In the EBTP survey, certain questions 
were  only  answered  by  relatively  few  companies  which  means  that  one  or  two  companies  can 
create disproportionate variation. At the same time, the estimate of 1% cross-border attachments 
by the banks could be equally inaccurate given that banks do not identify cross-border situations in 
their statistics. 
2009 Eurobarometer survey; CSES study Data collection 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. 

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justice  in  another  EU  Member  State  and  one  in  two  thinks  that  the  EU  should  adopt 
additional measures to help them for this purposes. 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  households  with  children  and  a  parent  who  is  a 
citizen  from  another  EU  Member  State,  a  divorce  rate  of  40%  and  average  marriage 
duration  of  12  years,  the  number  of  maintenance  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 legal action, the number of 'problematic' cross-
border maintenance claims could be up to 67.000. Assuming that the average net annual 
earnings  of  a  spouse  in  the  EU27  is  around  €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 because it is directly enforced.  

The  situation  for  maintenance  creditors  will  improve  to  some  extent  due  to  the 
Maintenance Regulation which replaces Regulation Brussels I in this specific field. 

3.5. 

Illustration of the problems 

The  following  case  studies  are  based  on  the  assumption  that  the  revision  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  exceptions56 
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  signed  and  the  Belgian  company  has  started 

54 

55 

56 

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. 
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. 
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.  

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delivery,  the  German  discounter  falls  behind  with  payment.  After  numerous  fruitless 
contacts  with  the  German  client,  the  Belgian  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  required  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 granted against the debtor. 

In addition, the Belgian SME has to pay an amount to its Belgian lawyer which has been 
charged  with  preparing  the  evidence,  identifying  the  foreign  lawyer,  liaising  with  him 
throughout the procedure, coordinating the evidence 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.  Following  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  more  than  €6.000  to  be  able  to  block  €20.000 
pending the outcome of proceedings on the substance. 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  applicable  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  therefore  contracts  are  entered  into  directly 
between  the  French  company  and  the  UK,  Spanish  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  agreement  in  favour  of  French  courts  on  its 

57 

For a detailed explanation of the costs involved, see Annex VI. 

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25 

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business  partners.  Instead,  it  was  agreed  to  leave  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  judgments  by  transferring  assets 
between  related  companies  in  different  countries.  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 with the German client and its subsidiaries, 
the  French  company  decides  to  try  to  obtain  court  orders  preserving  the  subsidiaries’ 
bank accounts in order to ensure that any judgments 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 Brussels I, jurisdiction lies with the courts at 
the place of delivery of the goods, the French company is obliged to go to courts in the 
UK,  Spain  and  the  Netherlands  to  obtain  preservation  orders  over  the  respective  bank 
accounts in each country. The company asks his lawyer 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 application 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  legal  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 the 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  preservation  order  could  be  implemented.  As  a 
consequence, the SME is not able to recover €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 the bank account which was indicated 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 amount of the order; the 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 French SME  has  to pay a 
significant  amount  to  its  French  lawyer  which  has  been  charged  with  preparing  the 

58 

For a detailed explanation of the costs involved, see Annex VI. 

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26 

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evidence,  identifying  the  foreign  lawyers,  liaising  with  them  throughout  the  procedure, 
coordinating  the  evidence  to  be  submitted  in  the  proceedings  in  the  different  Member 
States etc. The bill from its French 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  the  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  reminders  and  attempts  to  contact  the  trader 
under the phone number indicated on the website, Mr B decides 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 them 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  defend  himself  in  the 
proceedings and eventually a default 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  the  most  promising  means  to  recover  his 
monetary  claim  in  his  case  but  that  he  would  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  trader's  website  but  no  account  information  is 
provided  there.  The  bailiff  explains  to  him  that  different  informal  means  of  finding  out 
the relevant information could be tested which would cost €20 per hour; he would need 
approximately  6  hours.  Moreover,  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  

60 

Regulation  (EC)  No  861/2007  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. 
Under Regulation Brussels I, consumers are entitled to sue a foreign seller of goods at home.  

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Given that he is not certain to get his €500 back from the trader, Mr B does not want "to 
throw  good  money  after  bad"  and  decides  not  to  try  to  enforce  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 her partner who decides to return back to 
Italy where he originally came from. This leaves her in a difficult position because she is 
trying to bring up a child alone and without the necessary financial support.  

After contacting her former partner many times 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 advised by her lawyer to seek 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 applies for a protective order. Given that Spanish 
law does not allow ex parte orders, Ms C’s former 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 enforcement of the Madrid court'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 she obtained a preservation 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  transferred  to  another  institution  in  Denmark. 
Having  already  incurred  considerable  costs  in  pursuing  the  case  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  shall  develop  judicial  cooperation  in  civil 
matters having cross-border implications. The 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. 

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judgments between Member States (paragraf 2 lit a) and the elimination 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  preservation  of  bank  accounts  in  cross-border 
situations would be a matter of recognition and enforcement of a judicial decision and as 
such  be  covered  by  paragraf  2  lit  a)  of  Article  81.  A  European  instrument  in  this  area 
would also eliminate the obstacles to the proper 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 Member States would undertake 
a concerted action to align their legislation 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 international organisations and 
there is no indication that an international initiative 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 legislative process would require unanimity.  

4. 

OBJECTIVES 

The overall objectives of the initiative 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 civil justice in the area of enforcement.  

The general objectives of this initiative are to: 

•  Facilitate the recovery of cross-border claims for citizens and businesses, 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  competitiveness  of  the  EU  and  to  create  more  growth 
and jobs. http://ec.europa.eu/europe2020/index_en.htm 

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•  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  orders  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 seeking to obtain and enforce a  preservation 

order in cross-border situations. 

–  Increase awareness of creditors and debtors that a European procedure is available 

5. 

DESCRIPTION OF POLICY OPTIONS  

Five main policy options have been defined in view of promoting the objectives outlined 
above. The analysis will focus at this stage only on the high level policy options, i.e. the 
respective  merits  of  doing  nothing,  creating  a  self-standing  European  procedure  or 
harmonising national law. Once the preferred high-level option is identified, further sub-
options will be discussed.  

5.1. 

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  201063.  This  option 
assumes that all changes proposed to Regulation Brussels I which are relevant in the 
context  of  this  analysis  will  be  enacted  by  the  European  legislator.  This  means  that 
under  Option  A,  the  current  intermediate  procedure  required  for  rendering  a  court 
decision enforceable abroad (the so-called exequatur procedure) would be abolished and 
all  court  decisions  given  in  one  Member  State  would  be  automatically  enforceable  in 
another  Member  State.  Moreover,  the  revision  of  Regulation  Brussels  I  would  make 
protective  measures  including  preservation  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. 

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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 located (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  issuing  a  preservation  order)  and  ensure  that  a 
preservation  order  issued  in  one  Member  State  would  be  automatically  enforceable  in 
another Member State.   

5.2. 

Option B: Creation of a European Account Preservation Order 

This  option  would  create  a  new  and  self-standing  European  procedure with  protective 
effect  only  which  would  be  available  to  citizens  and  companies  in  addition  to  existing 
national  procedures  for  provisional  preservation  orders.  The  creation  of  a  self-standing 
European  procedure  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  as  well  as  rules  for  its  implementation  by  the  bank  holding  the 
account targeted. In line with the approach taken in the large majority of Member States – 
albeit  with  differences  in  detail,  the  possible  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 there 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  -  Creation  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 creditor 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 rules of civil procedure 
for  the  preservation  of  bank  accounts  in  cross-border  cases  by  way  of  a  European 
directive.  It  would  harmonise  the  main  elements  of  the  procedure  for  issuing  and 
implementing  the  order  –  i.e  the  conditions  for  application,  the  delays,  the  minimum 

EN 

31 

   EN 

 
 
 
information  on  the  debtor's  account  required,  the  rules  of  evidence,  the  hearing  of  the 
debtor, the right of appeal, service 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  national  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  rules  for  internal  purposes  or  whether  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 the transfer of funds to the creditor  

As option C, this option would harmonise national rules in cross-border cases by way of a 
European directive. However, option C1 would go further than option C and cover (like 
option B1) both the granting of a protective preservation order and the transfer of funds 
from the preserved account to the creditor once a judgment on the merits has been issued 
by the competent court. It would be left for the Member States to decide whether to adopt 
the same rules for internal purposes or whether to have two parallel systems for the issue 
and implementation of preservation orders. For the protective part, the same features as 
for option C would apply.  

6. 

DISCARDED POLICY OPTIONS 

Option B1 (Bank attachment: Creation of a European Order for the preservation of bank 
accounts  as  well  as  for  the  transfer  of  funds  to  the  creditor)  and  option  C1 
(Harmonisation  of  national  rules  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  order  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 recovery by facilitating 
the enforcement of the final judgment. To date, enforcement costs vary widely between 
Member States. This is due to different schemes of enforcement and different systems of 
professionals  (for  example  independent  bailiffs,  court’s  agents,  State  officers  or 
Enforcement  Authorities).  There  is  no  data  on  the  specific  costs  of  enforcement  as  this 
issue  is  not  covered  by  the  study  and  the  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  the  preserved  assets  to  the  creditor  would  interfere  heavily 
with fundamental principles of national enforcement 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  block  the  account  has  priority  over  subsequent 

EN 

32 

   EN 

 
creditors.  Other  Member  States  follow  a  "group  principle"  or  collective  distribution 
schemes which are more akin to insolvency proceedings and deny the priority 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 friction between European and national rules.  
It also has to be borne in mind that this initiative constitutes the first inroad of European 
law into the domain of enforcement of decisions 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 stages64 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 consultation. Most of those who 
have been consulted consider that the eventual enforcement of any judgment given in the 
substantive proceedings should remain subject to national rules. Feedback from the key 
stakeholder  survey  also  supported  this  view  that  any  European  procedure  should  be 
limited to being a protective order. As to the public hearing, although some participants 
suggested that with momentum having now been developed to bring 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 revision 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)  and  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  transactions  than  in  domestic 

64 
65 

See p. 6/7 of the programme, OJ C 12 of 15.1.2001.  
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 

33 

   EN 

 
                                                 
cases and, as a result, write off more cross-border 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  consumers  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  another  Member  State  have  not  developed  or 
stopped  cross-border  business  because  of  potential  or  actual    difficulties  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  preserved  corresponding  to  estimated  €68-120  Mio 
(see section 3.4.2). 

 (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. The conditions for processing personal data in the context of a preservation 
order  issued  under  national  law  should  already  today  comply  with  the  requirements  of 
Directive 95/46/EC on data protection. 

 (d) Views of stakeholders: There have been no requests from the stakeholders 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 Account 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 contribution of this option 
to the objectives would be an improvement of 50% compared to the current situation as 
weighted  against  to  the  contribution  of  the  revised  Regulation  Brussels  I  which  would 
bring an estimated improvement of 10% compared to the current situation. Therefore it 
will have a significant effect on top of the effect of the revised Regulation Brussels I. 

66 

67 

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. 
EBTP  survey  question  1.  Out  of  107  companies  not  involved  in  cross-border  commercial 
activities, 32 replied that this was due to potential or actual cross-border disputes or problems with 
debt recovery.  

EN 

34 

   EN 

 
                                                 
Option  B  would  respond  by  solving  the  problems  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 preservation orders on 
the basis of the same conditions. This would overall make it easier for creditors to obtain 
a preservation order.  While  the conditions of issue of the 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 the debtor's accounts, if necessary.  

The existence of a uniform and simple procedure 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. Depending 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  time  limits  for  the  bank  to  implement  the 
order, on information to the creditor that the order 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 could improve the clarity by setting obligation to 
Member States to provide information available to public on their systems. 

Option  B  would,  however,  not  eliminate  all  costs  and  delays  inherent  in  the  process  of 
debt  recovery  because  the  creditor  would  still  incur  certain  costs  and  delays  when 
enforcing his judgment on the merits under national 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 procedure for cross-border cases 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 year68  

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 identical in all Member 
States,  it  would  no  longer  be  necessary  to  engage  one  lawyer  per  targeted  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  facilitate  the  task  of  the 
lawyer,  thereby  further  reducing  costs.  Cost  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 

35 

   EN 

 
                                                 
circumstances of the case and are therefore difficult to quantify. Moreover, 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 dispute69. With these caveats and on the basis 
of the savings set out in the case studies (below), it can be assumed 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  translating  documents  for  a  creditor  having  to 
litigate in another Member State. However, the 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  for  the  creditor  to 
actually resort to the application of a preservation order. In this respect, option B would 
complement  the  incentives  for  punctual  payment  set  by  the  Late  Payment  Directive72 
which  entitles  the  creditor  to  an  additional  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  survey,  58%  of  the  firms  employing  up  to  250 
people  said  they  would  be  ‘more  likely’  to  engage  in  cross-border  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  hire  two  lawyers  both  in  Belgium  and  in 
Germany where it tries to obtain a preservation order. Since the conditions for issue and 

69 
70 
71 

72 

See Annex IV for details on national legal systems. 
For details of lawyers' hourly fees in the EU see Annex VI.  
Thus, e.g. France accepts five languages in addition to French in the context of the small claims 
procedure. 
Directive  2011/7/EU  on  combating  late  payment  in  commercial  transactions  (recast).  This 
Directive replaces Directive 2000/35/EU. 

EN 

36 

   EN 

 
                                                 
the  procedure  would  be  identical  in  all  Member  States  and  there  would  be  a  standard 
form for the application, the proceedings could 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  reducing  costs.  The  European  procedure  would 
lead  to  savings  in  foreign  lawyers'  fees  of  approximately  €4.000.  (lawyer's  fee  in 
Germany). Given the reduction in costs of proceedings, the SME would 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 – either the debtor pays or a 
preservation  order  under  German  law  is  applied  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 (lawyer’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  (debtor'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  order.    The  European  procedure  would  lead  to 
savings  in  lawyers'  fees  of  approximately  €10.000  because  instead  of  three  foreign 
lawyers  –whose  fees  are  respectively  €3.580,  €4.200  and  €2.500  and  a  coordinating 
lawyer (fees: €5.000 in France) only one lawyer (fees: €5.000) would be able to deal with 
the  procedures  in  all  three  Member  States.  Most  importantly,  obtaining  a  speedy  and 
efficient European Account Preservation Order would allow the creditor to secure part of 
the claims that it was not possible to recover under Status Quo – i.e. €20.000 in Spain and 
€15.000 in the Netherlands. At the time of enforcement 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 French 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  proposed  initiative  -  the 
creation  of  a  uniform  procedure  reducing  the  need  to  engage  foreign  lawyers  and  the 
improvement  of  payment  behaviour  of  debtors  -  would  take  away  work  and/or  thereby 
revenue  from  legal  professions.  Other  aspects  –  the  facilitation  of  obtaining  a 
preservation  order  and  the  increase  in  cross-border  trade  –  would  lead  to  more  cases 

EN 

37 

   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 domestic 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 lawyers. 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.  Bailiffs  and  enforcement  officers  would  equally 
benefit  from  an  overall  increased  in  preservation  orders  in  cross-border  cases  and  the 
corresponding increase in revenues 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. Overall, option B would therefore 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-based enforcement systems the court officers in 
charge  of  implementing  it)  with  the  new  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 which would increase the workload of judges 
and court staff. It is difficult to quantify the costs which such an increase would trigger. 
However, part of these costs would be covered by a corresponding increase 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  "reverse  discrimination"  of  residents  in  that 
Member State. Such a situation potentially arises under several instruments in the area of 
civil justice which are all limited to cross-border cases because their legal basis requires 
such  limitation75.  However,  this  is  not  regarded  as  a  breach  of  European  law;  only  the 
opposite  –  i.e.  discrimination  against  non-nationals  –  is  prohibited  by  the  Treaties. 
Member States are free to apply the European rules to domestic cases76. Option B would 

73 
74 
75 

76 

CSES study page p. 126. 
CSES study p. 64. 
E.g.  the  European  Small  Claims  procedure,  the  European  Order  for  Payment  procedure,  the 
Directive on certain aspects of mediation in civil and commercial matters, the Directive relating to 
the compensation of crime victims and the Directive to improve access to justice in cross-border 
disputes by establishing minimum common rules relating to legal aid for such disputes.  
This is being done by several Member States, e.g. in the transposition of the Mediation Directive.  

EN 

38 

   EN 

 
                                                 
therefore encourage those Member States which 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 efficient means to secure himself against the non-payment of a 
cross-border  debt,  thereby  facilitating  the  exercise  of  the  right  to  effective  enforcement 
(Article 47 (1) Charter) and to property (Article 17 Charter). The procedure envisaged by 
option B for the granting of an order would need 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 accounts (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  unjustified  order  unless  the  court  waives  this  requirement  in 
exceptional circumstances. Moreover, option B would need to ensure that the respect for 
private  and  family  life  (Article  7)  is  ensured  by  excluding  amounts  necessary  for  the 
debtor's and his family's livelihood from enforcement 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 arise notably in relation to account information provided by 
the  bank  or  public  authorities  if  the  creditor  does  not  know  the  whereabouts  of  his 
debtor's account (depending on the suboption chosen at section 9.3 below) or by the bank 
to the creditor and the court 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 
seizure77.  

(e) Views of stakeholders 

The  replies  to  the  public  consultation  show  that  the  majority  of  those  that  responded 
favoured the creation of a European instrument for preservation order (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  the  grounds  that  their  own  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  the  order  was  successfully  implemented  against 
accounts even though it represents administrative burden as marked 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 

39 

   EN 

 
                                                 
work well. However, others acknowledged that while a new European procedure would  
not  be  needed  to  improve  procedures  in  their  own  Member  State,  it  would  have  added 
value  for  ‘out-going’  applications  that  are  dealt  with  in  other  countries,  some  of  which 
are  seen  as  having  very  inefficient  procedures  for  preservation  orders.  The  generally 
positive attitude to option B was also evident from 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  preservation  order  is  seen  helpful  as  it  would 
accelerate  trans-border  enforcement  proceedings  (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  assets  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  assets,  the  EP  sees  bank  accounts  as  the  core  scope  of  the 
instrument.  As  regards  the  disclosure  of  assets,  the  EP  supports  an  order  obliging  the 
debtor to disclose all of his assets. In particular on the freezing order, the ideas of the EP 
comply  to  a  very  large  extent  with  the  current  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  lesser  extent  than  option  B.  The  harmonisation  of  national 
procedural  rules  for  the  preservation  of  bank  accounts  would  reduce  the  existing 
divergences  between  national  laws  in  this  area  and  create  an  ‘island  of  harmonisation’ 
between the legal systems of Member States in respect of preservation orders. Option C 
would  align  the  conditions  for  issue  of  a  cross  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  contrast  to  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 option C 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, e.g. – depending on the specific features of this option – without the hearing 
of the debtor, 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. 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 

40 

   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 States' national procedural and enforcement 
law are likely to continue to require the involvement of a lawyer licensed to practice in 
each  of  the  Member  States  in  which  the  preservation  order  is  to  be  obtained  and/or 
enforced. Enforcement costs vary widely between 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  the  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 preservation 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 implementation 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  efficiency  of  enforcement  would  benefit  the 
individual  consumers  and  maintenance  creditors.  However,  the  economic  impact  of 
option C would not be as beneficial for these categories of people as option B.  

As option B, option C is also likely to improve 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 harmonised by the directive into their national law. 
Member  States  would  therefore  have  to  adopt  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 costs which would only arise once. (2) National legal 
traditions:  The  implementation  of  the  new  rules  risks  creating  difficulties  for  Member 

EN 

41 

   EN 

 
States in several respects. First, the European rules are broadly aimed at addressing cross-
border  cases  whereas  national  law  on  banking  seizures  is  applicable  also  in  domestic 
cases.  Member  States  would  have  the  "choice"  of  either  having  two  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. More importantly, however, it seems inevitable 
that the procedures prescribed by the instrument would not be totally in line with those 
currently existing under national law. A given rule 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 harmonised by the European 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 entire 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 intrusive into national legal traditions than option 
B.  

Option C could also in some Member States lead to a more favourable treatment of cross-
border than domestic cases (see above 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,  equally  require  that  the  rights  to  judicial 
protection (Article 47) as well as his or her human dignity (Article 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 enforcement 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 justified in terms of the potential benefits in 
improving  the  process  of  cross-border  preservation  orders.  This  option  has  not  been 
supported neither by the Member States nor by the European parliament. 

8. 

COMPARING THE OPTIONS  

The table below summarizes the impacts of the different options analysed above: 

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

EN 

42 

   EN 

 
 
Policy options 

Effectiveness 
to 
reach 
objectives 

Economic 
impact 

Impact 
Member 
States 

on 

Fundamental 
Rights 

Option  A:  Status  Quo  after 
revision 
of  Regulation 
Brussels I  

0 

Option 
Account 
Order  

B: 

European 
Preservation 

++ 

Option C: Harmonisation of 
for 
rules 
national 
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  problem  of  facilitating  debt 
recovery  and  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.  

9. 

THE PREFERRED POLICY OPTION AND ITS FURTHER SUB-OPTIONS 

This  section  discusses  sub-options  for  key  features  of  the  possible  European  Account 
Preservation  Order.  For  the  purpose  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  fundamental  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  debtor  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 immediately notified of the preservation 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 the issue of the order. 

Impact of the sub-options:  

EN 

43 

   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 effect of the measure is lost and there is a 
real risk that a recalcitrant or fraudulent debtor 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 preservation order also against the Spanish subsidiary 
although Spanish national rules of civil procedure currently do not easily grant ex parte 
preservation  orders.  This  would  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 subsequent enforcement of the judgment on the merits. Sub-option 
2 would not change the situation 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  enforcement"  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 would ensure that the debtor receives notice of 
the order immediately after it is implemented by the bank and that he has the possibility 
to contest the measure immediately afterwards.  

Comparison of the sub-options: 

Policy options 

Effectiveness 
objectives 

to  achieve 

Fundamental rights impact 

Sub-option  1:  hearing  of  the 
debtor  only  after  the  order  is 
issued 

++ 

Sub-option  2:  Prior  hearing 
of the debtor 

0  

0 

0 

Overall,  sub-option  1  would  better  achieve  the  policy  objectives  than  sub-option  2.  As 
regards fundamental rights both options comply with the Charter.  

9.2. 

Sub-options relating to jurisdiction for issuing and contesting the order 

Rules on jurisdiction determine which court is competent 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 issuing the order. There was general agreement 
among stakeholders in the public consultation 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 courts of the debtor's domicile would also have 

EN 

44 

   EN 

 
jurisdiction to issue the order. Second, the Regulation has to determine which courts are 
competent  to  deal  with  the  objections  of  the  debtor  against  the  order  (assuming  that  he 
has not been heard prior to its 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  enforcement  or  the  amount  exempt  from  execution 
would  have  to  be  raised  in  the  Member  State  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  consumers  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  and  compliance  with  the  general  principle  of 
mutual  recognition.  Sub-option  1  corresponds  to  the  general  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  the  Maintenance  Regulation.  Sub-
option 2 would allow a court in one Member State to review the substance of a decision 
given in another Member State which 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  costs  (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  located  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  right  of  the  debtor  to  judicial  protection  is 
fully  ensured  in  the  Member  State  where  the  judicial  decision  is  taken.  Moreover, 
consideration would need to be given to facilitating the exercise 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 all EU official languages. This might not be 
sufficient  to  offset  the  disadvantages  of  having  to  contest  the  order  in  another  Member 
State  for  the  "weaker"  party  to  the  dispute,  e.g.  the  consumer  in  B2C  relations.  
Consumers will not often be the target of a preservation order because they are usually 

EN 

45 

   EN 

 
required  to  pay  in  advance  when  buying  goods  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 Member 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 
Member 
States 

on 

Fundamental Rights 

Sub-option 
Jurisdiction  of 
Court 
issuing 
order 

++ 

1: 
the 
the 

++ 

2: 
Sub-option 
Jurisdiction  of 
the 
court  of  the  debtor's 
domicile  (at  least  for 
weaker parties) 

++ 

0 

compliance 

1) 
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 information on the debtor's account 

Sub-option  1:  Status  quo.  The  European  procedure  would  not  contain  any  rules 
facilitating obtaining information on the 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 information on the whereabouts of his debtor's account 
by providing for the issue of an order for disclosure by the court which would oblige all 
banks located in a given Member State to check if the debtor holds an account with 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  Enforcement  Authority  access  to  public  registers: 
Alternatively, the regulation could ensure access to information on the whereabouts of a 
debtor's account by granting the court or the 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 

46 

   EN 

 
                                                 
registers containing the necessary information. In this respect, tax registers would play an 
important  role.  In  the  context  of  fighting  organised  crime,  some  Member  States  have 
created registers of bank accounts held in their territory to which access could be given. 
This sub-option could also be combined 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  status  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  that  information  on  debtor's  bank  accounts  is 
available  in  a  Member  State.  Public  registers  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  authorities  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  would  cost  him  €  30-100.  Sub-option  3  could  achieve  the 
same result by granting the Dutch enforcement authority 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 order 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 costs. If the costs are eventually born by the 
creditor,  this  would  reduce  the  economic  benefit  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 maintenance81, which would reduce implementation costs. On the other hand, 
some Member States already allow 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 investigation agency as illustrated by case study No 
2. 

80 
81 

No such registers exist e.g. in Belgium and the UK. 
Cf Article 61 of the Maintenance Regulation.  

EN 

47 

   EN 

 
                                                 
Case  Study  2:  Consumer  case:  Sub-option  2  would  enable  the  French  authorities  to 
issue  a  disclosure  order  or  to  access  the  relevant  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  sub-options  2  and  3  would  improve  the 
effectiveness of the creditor's right to enforcement 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  safeguarded  by  providing  that  any  information 
obtained must be processed in compliance with the Directive on data protection. 

As regards the views of the stakeholders, the only point raising concerns for the Member 
States has been the disclosure of information 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 
policy 

reach 
objectives 

Economic 
impact  

Impact 
Member States 

on 

Fundamental 
rights impact 

Sub-option  1: 
Status Quo 

0 

Sub-option  2: 
Disclosure 
Order 

++ 

Sub-option  3: 
Access 
to 
public registers 

+ 

0 

(costs  of 

- 
banks) 

+ 

0 

0 

- 
(implementation 
costs) 

0 

+ 

+ 

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 

48 

   EN 

 
9.4. 

Sub-options  relating 
preservation order 

to 

time-limits 

for 

issuing  and  enforcing 

the 

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  requirements  relating  to  time  such  as  "without  undue  delay"  or 
"as soon as possible".   

Sub-option  2:  No  slower  implementation  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 example, the Regulation could impose time-limits for 
issuing  the  order,  for  serving  it  on  the  bank  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  etc.  When  specifying  how  many  days  a  given 
stage of the procedure may take, consideration would need to be given to the time these 
stages currently take in the Member States. Different alternatives could be considered in 
this respect: one approach would be to establish the current EU-average as the maximum 
time,  thereby  changing  the  status  quo  essentially  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  Member  States  to  deal  with  the  European 
procedure  more  quickly  than  with  their  national  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 application 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  enforceable  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  claimant  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 whether 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 Order remains in force 
until  proceedings  on  the  substance  have  ended.  As  remedies  of  the  defendant,  the 
application for a review should  be made promptly, in any event within 45 days from the 

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day the defendant was effectively acquainted with 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 possible 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  order.  Only  sub-option  3  would  contribute  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 opting 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, since 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 obtain 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 basis of specific time-limits proposed in the future initiative, 
the  court  in  Spain  shall  grant  a  preservation  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  funds  on  the  account).  The  monies  on  the 
account are preserved until the maintenance judgment is enforceable. This will allow her 
to  fully  enforce  the  judgment  by  obtaining  the  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 future 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 

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inform  the  claimant  within  8  days  if  the  order  was  successfully  implemented  (whether 
there was enough funds on the account). The monies on the account are preserved until 
the definitive judgment on the merits is enforceable. This will allow 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  the  length  of  proceedings,  depending  on  further 
progress expected from multi-language forms and their electronic transmission.  

Turning  to  the  costs  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  ensure  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 extent of these costs would 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  national  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 matter 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  initiative  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 established 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.  Any  time-limit  set  under  sub-  option  3  should 
therefore correspond to the extent possible with those of the existing acquis and draw on 
lessons from the mentioned evaluations. Moreover, 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 relevant step of procedure 
as  soon  as  possible.  Such  a  provision  figures  already  in  the  Small  Claims  Regulation. 
Finally, if sub-option 3 was chosen, 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  Convention  on  Human  Rights  respectively.  The 

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ECHR already imposes an obligation on Member States to obtain 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  improve  the  fundamental  rights 
situation for the creditor by enabling him to obtain and enforce a preservation order more 
quickly than under the status quo. 

Economic 
impact  

Impact 
Member States 

on 

Fundamental 
rights impact 

Comparing the sub-options:  

Policy options 

Effectiveness 
reach 
to 
policy 
objectives 

Sub-option  1: 
Status Quo 

Sub-option  2: 
No 
discrimination 

0 

+ 

0 

+ 

0 

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.  

0 

+ 

++ 

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  available  to  citizens  and 
companies in addition to existing national procedures. Thus, the order would be issued ex 
parte,  i.e.  without  the  prior  hearing  of  the  debtor  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 authorities to find out the whereabouts of a debtor's 
bank account if the creditor does 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  preservation  order  securing  the  recovery  of 

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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 preservation order on the basis of an efficient and 
uniform European procedure under the same conditions 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 restrictive than those envisaged by the initiative to 
obtain  a  preservation  order  in  situations  where  this  is  currently  not  possible.  It  will 
notably  enable  a  creditor  to  obtain  a  preservation  order  without  a  prior  hearing  of  the 
debtor, thereby safeguarding the surprise effect of the measure.  

-  It  will  enable  a  creditor  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 enable a creditor to reduce costs of obtaining a preservation 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 reduce costs of translation 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 transparent 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  enforce  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  year82,  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  savings  also  for  consumers  and 
maintenance creditors. The preferred option will benefit in particular SMEs which have 

82 

83 

84 

See section 3.4. and 7.2. for details. 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.  
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. 
See  section  7.2.  b).  This  assumes  that  once  lawyers  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.).  

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little  cash  flow  and  limited  access  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 companies 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  State,  the  preferred  option  is  likely  to 
encourage  more  companies  to  expand  their  business  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 possibilities, would be necessary to produce the full 
benefit of the preferred option85. 

The increase in the number of preservation orders which the preferred option is expected 
to bring about at least in the medium term risks having a negative economic impact on 
banks at least in those Member States where they 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 spend much money to assert their rights in 
judicial  proceedings.  This  concerns  in  particular  maintenance  creditors  who  depend  on 
the  payment  of  alimonies  for  their  or  their  children's  livelihood.  The  preferred  option 
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:  Member  States  will  incur  costs  in  implementing  the 
preferred  option.  However,  the  costs  of  implementing  a  self-standing  procedure  are  in 
general  considerably  lower  than  the  alternative  option  of  harmonising  national  rules. 
Costs  of  familiarising  the  judges  and  enforcement  officers  with  the  new  instrument 
should be small and would, moreover, be one-off 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.  

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54 

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with the deadlines. The cost will be however spread in time due to transition periods. The 
creation of a self-standing procedure envisaged 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.  Preservation  orders  under  national  law  would 
continue to be available. 

e) Fundamental rights: The preferred option 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. 

f)  Stakeholders:  At  the  public  hearing  on  cross-border  debt  recovery  on  1  June  2010, 
most  of  the  88  participants  (businesses,  academics,  lawyers,  bailiffs,  banks)  broadly 
towards  a  European  procedure  for  bank 
welcomed 
attachment/preservation order provided that it is a precautionary measure only. 

the  Commission 

initiative 

The Member States have shown generally positive 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-initiative  report  with 
recommendations to the Commission on proposed interim measures for the freezing and 
disclosure  of  debtor's  assets  in  cross-border  cases86.  The  EP  advocates  the  adoption  of 
European  instruments  on  the  freezing  of  assets  and  on  the  disclosure  of  assets. 
Concerning  the  reezing  of  assets,  the  EP  sees  bank  accounts  as  the  core  scope  of  the 
instrument.  As  regards  the  disclosure  of  assets,  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 
reach 

to 
policy 
objectives  

Economic 
impact 

Social 
impact 

Impact 
Member States 

on 

Fundamental 
rights impact 

Status Quo 

0 

Preferred 

++ 

0 

++ 

0 

+ 

0 

- 
(implementation 

0 

+ 

86  

EP  plenary  of  10  May  2011.  JURI  document  2009/2169(INI)  of  16.2.2011,  Rapporteur  Arlene 
McCarthy (S-D/UK) 

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option 

costs) 

Thus, it can be concluded that the preferred option improves the status 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  application  of  the  new  procedure,  based  on 
consultations  of  Member  States,  stakeholders  and  external  experts.  Regular  expert 
meetings will also take place to discuss application 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 able to assess the proper 
functioning of the European Account Preservation Order, the Commission will include in 
the proposed instrument a requirement on Member 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 outcome of these procedures.  

In the monitoring, specific attention will be paid for the development of costs and delays.

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ANNEX I  
GLOSSARY OF LEGAL TERMS 

Term 

Definition 

Bank attachment (order) 

Civil and commercial matters 

Civil justice / civil law  

Claim 

Claimant 

Defendant 

Enforcement 

Ex parte order/procedure 

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. Bank 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.  

Matters relating to legal relationships between private 
individuals, as opposed to the relationship between an 
individual and the State. 

Law that governs the relationships between private 
individuals, as opposed to public law which governs 
the relationship between the individual and the State.  

A possible right of the creditor to the payment of a sum 
of money that has fallen due from the debtor 

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. 

Any natural or legal person against whom an action is 
brought in court. In the case of a monetary claim, the 
defendant is usually the debtor or his representative. 

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. 

A measure 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 

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Exequatur procedure 

Preservation order 

Jurisdiction 

on the defendant. Ex parte orders are available in many 
Member States for provisional and protective measures 

Formal court procedure 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 Brussels I Regulation this 
intermediary procedure is abolished, except for 
judgments in defamation cases and collective redress. 
Further it is maintained in other EU instruments (i.e. in 
the Insolvency Regulation) and the proposed 
instruments on successions and matrimonial property 
rights. 

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 serving 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 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 proceedings initiated by a party who wants the 

Provisional/protective measures 

Recognition 

merits of his claim (unpaid debt, consumer claim, 
damage, maintenance) to be determined by the 
competent court.  

Measures ordered by a court which are intended to 
preserve a factual or legal situation so as to safeguard 
rights the recognition of which 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.  

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 

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recognition).  

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SUMMARY OF CONTRIBUTIONS TO THE PUBLIC CONSULTATION 

ANNEX II 

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 enforcement legislation within the EU, the 
Commission launched a broad consultation process to gather opinions on the possible creation 
of an instrument aiming at improving 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  confidentiality.  The  replies  can  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  could  contribute  to  the  dissipation  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 harmonisation 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  suggested  that  it  should  be 
possible  to  attach  other  assets,  while  others  suggested  that  the  order  should  not  be  merely 
protective, or that it should be a first step towards a real harmonisation of the attachment of  
bank accounts. 

87  
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COM(2006) 618 final, 24.10.2006 
 http://ec.europa.eu/justice_home 

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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  principle  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 subsequent 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 first stage of the procedure would be contingent 
on a clause stating that the main proceeding should 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  being  available  before  the  main  proceeding  had 
begun. 

2.2   Conditions of issue 

A majority of replies argued  that the conditions for granting the protective 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.  Other  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  that  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  attachment  should  be  avoided,  at  least  in  those  cases  where  an 
attachment might be required, provided that 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  registration  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 obligation might have a deterrent effect. Providing the court with 

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the debtor's ID or social security number was suggested as a way of avoiding any case of 
homonymy.  

Some  replies  suggested  that  the  implementation  requirements  be  drawn  up  in  line  with 
national  legislation,  or  that  the  order  be  transmitted  to  the  enforcement  authority,  which 
would be in charge of finding detailed 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 court 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 maximum 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 percentage 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 whether 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 that 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. 

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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 the 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  following  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 conjunction 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 its 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 States 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. 

EFFECTS OF AN ATTACHMENT ORDER 

4.1 

Implementation 

Almost all of respondents agreed with the  removal of the interim measure (exequatur) in 
the  Member  State  requested  to  enforce  the  order  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  needed  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 

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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  transmission  from  court  to  bank,  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 remain 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  the  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 information, 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  stakeholders  considered  that  informing  the 
debtor of the existence 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  their  customers  if  they  so  wished,  as  part  of 
their  customer  relations.  Another  option  would  be  to  make  the  creditor  responsible  for 
notifying the debtor. 

It was suggested that the instrument should 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 order has been executed, whereas a minority proposed that the debtor be 
informed  immediately  after  the  issuing  of  the  order,  or  after  the  bank  has  been  notified 
thereof. 

The  responses  to  the  Green  Paper  overwhelmingly  supported  the  automatic  lapse  of  the 
order after a certain time, as part of the mechanism to protect the debtor against wrongful 

90  

91  

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 commercial matters; OJ L 160, 30.6.2000 p 37. 
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating 
a European Enforcement Order for uncontested claims, OJ  L 143 , 30.04.2004,  pp.  0015 - 0039 

EN 

64 

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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 having 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 demonstration by the debtor of the non-existence of 
the  claim,  or  the  usefulness  of  the  order,  or  any  objections  of  a  substantive  or  procedural 
nature. 

A closely related issue is the question of which court should be given jurisdiction to hear 
those  objections.  Several  options  were  mentioned  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 replies rejected a clause on this issue in the future instrument, 
preferring it to be left instead to the application 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  

93  

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 
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating 
a European Enforcement Order for uncontested claims, OJ  L 143 , 30.04.2004 p.  0015 - 0039 

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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 participants representing ministries of justice, judges, law firms, 
bailiffs, academics, banks, businesses and citizens.  

The  Head  of  Cabinet  of  Vice  President  Reding  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 growth. The speech was well received by the audience 
which raised different aspects of the background 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 parts of the interim report and the structure of 
the questionnaires that are being sent. 

The  first  speaker  presented  a  research  project  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 debtor's  rights. In the  light  of 
these risks the structure of the European proposal should be balanced by an investigation of 
creditor's claim and the legal defence. 

The second speaker from the University of Heidelberg explained that under option 2 (revision 
on  Brussels  I)  it  would  be  possible  to  propose  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 instrument (Regulation).  

 A  representative  from  the  bailiffs'  association focused  on  the  role  of  his  profession  as only 
competent officials should ensure the protection of defendant's rights in domestic and cross-
border  enforcement.  An  academic  supported  the  role  of  bailiffs  who  have  contributed  to 
reducing the time for enforcement in Eastern countries where they have been introduced. 

 A  representative  from  the  European  Banking  Federation  explained  that  banks  are  also 
interested  in  a  European  procedure  as  banks  are  often  creditors  as  such.  It  asked to 
quantify cross-border aspects of the problem and that any common procedure should include 
strict conditions. One question was raised about assets tracing. 

 In  the  general  discussion,  the  following  points  were  raised:  A  majority  of  participants 
expressed that the envisaged instrument should be a provisional/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 order (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 substantiate 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 provisional measures or also cover enforcement, 

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limited  to  the  debtor  or  covering  other  assets,  protection  of  debtor's  rights,  protection  of 
personal  data,  banks'  costs  etc).  It  was  hoped  that  a  Commission  proposal  could  be  put 
forward in 2011.  

SHORT SUMMARY OF THE MEETING WITH MEMBER STATES' EXPERTS 

ANNEX IIIB 

The meeting was held on 31 March 2011 in Brussels. 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 draft Regulation on facilitating cross-border debt 
recovery. The meeting was chaired by Salla Saastamoinen, Head of Unit JUST A/1.  In total 
22 countries participated to the meeting -incl. DK which showed 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-border  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  (Regulation  Brussels  I,  Regulation  on  Service  of 
Documents) and with national enforcement rules – e.g. on the conditions for application for 
the order, for disclosure of banking information, 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  provisions  (e.g.  scope,  conditions  for  issue, 
requirement  for  a  security  deposit,  jurisdiction  for  the  debtor's  remedies  etc).  However,  in 
general, the only point that raised serious concerns was the disclosure of information on the 
bank accounts (Art 15-16) which is clearly difficult to several Member States. 

A  majority of experts stressed that their comments are initial and asked more  time to allow 
them to engage in necessary internal consultation and in-depth examination of the text in the 
Member  States.  Upon  several  requests,  the  Member  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 advance well in the Council 
under the PL Presidency, 

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REVIEW OF EXISTING SCHEMES FOR PRESERVATION ORDER AND BANK 
ATTACHMENT 

ANNEX IV 

Table: Summary Matrix – Comparative Analysis of Bank Attachment Procedures94 

Key Features   

Types of assets subject to bank attachment orders 

Assets attached in rem 

Assets attached in personam 

All  assets  in  bank  account(s)  can  be 
attached 

Carve-out for essential / protected assets 

Member 
State(s) 
which 
feature 
applies95 

to 
key 

AT,  BE,  DA, 
DE,  ES,  FI, 
FR,    GR,  IT, 
LU,  MT,  PT, 
RO, SI, SE and 
the 
UK 
(Scotland), 

IE 
the  UK 
& 

AT,  CY, 
and 
(England 
Wales) 

FR, NL 

BE,  FI,  FR, 
IE,  LU, 
GR, 
MT,  NL  and 
PT. 

94 
95  

CSES study, p. 90. 
According to the following sources: 
(1)  the  website  of  the  European  Judicial  Network  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 Enforcement 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. 

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Procedure under which bank attachment orders may be issued 

Legal representation required 

Standard  of  proof 
substantive proceedings 

lower 

than 

for 

Ex parte hearings permitted 

Conditions under which bank attachment orders are granted   

Applications must be urgent 

There must be a risk of frustration 

Creditor  may  be  required 
security/undertaking 

to  provide 

Effects of bank attachment orders or equivalent measures 

Obligation 
information to courts  

on 

banks 

to 

provide 

ES, MT and PT

AT,  BE,  CZ, 
DA,  DE,  ES, 
FI,  FR,  GR, 
HU, 
IT, 
IE, 
LU,  LV,  MT, 
NL,  PT,  RO, 
SI, SK, SE and 
the UK. 

AT,  BE,  CZ, 
ES(*), 
DE, 
FR, 
FI(*), 
GR(*), 
IE, 
IT(*),  LU,  NL, 
PT(*)  and  the 
UK. 

AT,  BE,DA, 
DE,  FI,  FR, 
GR, IT, PT 

AT,  BE,  FI, 
FR,  DA,  DE, 
ES, GR, IE, IT, 
LU,  NL,  PT, 
SK, SE and the 
UK 

AT,  CZ,    DA, 
DE,  ES,  FI, 
FR,  GR,  HU, 
IE, 
IT,  LV, 
MA,  NL,  RO, 
SE and the UK 
(England 
& 
Wales) 

AT,  BE,  DA, 
DE,  ES,  FI, 
FR,  GR, 
IT, 
LU,  PT,  RO, 

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Time 
limit 
equivalent measure 

for  expiry  of  BAO  or 

Preferential  rights  afforded  vis-à-vis  third 
party creditors 

Criminal as well as civil offence 

SE , SI and the 
UK (Scotland) 

AT,  BE,  DE, 
ES, IT, LU and 
UK 
the 
(England 
& 
Wales) 

AT,  DA,  DE, 
FR, ES, IE, PT, 
SE and the UK 
(Scotland) 

CZ,  DE,  FR, 
GR,  IT,  MA, 
RO, SE and the 
UK 
(England 
& Wales).  

Possibility of appeal against granting of a bank attachment order 

Debtor may appeal 

Creditor may appeal 

(*) = Exceptional cases only.  

AT,  BE,  CZ, 
DA,  DE,  ES, 
FI,  FR,  GR, 
HU, 
IT, 
IE, 
LU,  LV,  MT, 
NL,  PT,  RO, 
SI, SK, SE and 
the UK. 

BE,  CZ,  ES, 
IT, RO, SE, SI, 
SK and the UK 
(Northern 
Ireland).  

Types of assets subject to bank attachment 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 bank account or accounts of the debtor, or only the 
amount corresponding to the disputed debt (plus enforcement costs).  

EN 

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France and the Netherlands are examples of jurisdictions where the bank may be ordered to 
block the entire account of the debtor. However, in the material reviewed for this study there 
were  very  few  references  to  measures  that  are  capable  of  preserving  all  assets  held  in  the 
debtor’s bank account(s) regardless of the size of the disputed debt. Given 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  enshrined  in  the  provisions  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  prescribed  pension,  benefit,  allowance  or 
assistance.  And in the Netherlands, wages and other claims to periodic payments are exempt 
from attachment up to a certain prescribed limit.      

Procedures for bank attachment order or equivalent measures  

Procedural considerations include such matters as: 

• 

• 

• 

Any requirement for legal representation 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 circumstances in which a creditor can apply for a bank attachment order 
or equivalent measure. In particular, a key issue is whether, in the context of a proposed EU-
wide instrument, it would be possible for a creditor to lodge an application both prior to the 
main  proceedings,  concurrently  with  lodging  the  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 issues are considered below. 

Requirement for legal representation 

The requirement for legal representation is mandatory (always or in certain circumstances) for 
applications for bank attachment orders or equivalent 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  respect  of  applications  for  precautionary  measures  than  would  be 

96  
97  

Notably Articles 6 and 8 of ECHR and Articles 7 and 47 of the EU Charter.  
Member  States  with  ‘carve-outs’  include  Belgium,  Finland,  France,  Greece,  Ireland,  Luxembourg, 
Malta, Netherlands and Portugal.  

EN 

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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  question  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 standard 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 similarly 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 precautionary measure. If the bank attachment order 
or equivalent measure can be awarded without an oral hearing at which the debtor is present, 
the  latter  will  have  less  notice  of  the  preservation  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,  England  and  Wales,  France,  Germany, 
Greece, Ireland, Italy, Luxembourg, Netherlands, Northern Ireland, Portugal, Spain and 
Scotland  (13  MS)  In  some  of  these  jurisdictions,  ex  parte  applications  are  granted  in 
exceptional circumstances only (4 MS).98 

Circumstances  in  which  a  creditor  can  apply  for  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 appropriate 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 timing of lodging the application. It appears that 
in most Member States it is standard to lodge an application for a bank attachment order or 

98  

In Greece, Italy, Portugal, Spain ex parte applications are granted in exceptional circumstances only.     

EN 

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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  lodge  the  bank  attachment  order 
application after the substantive proceedings have already commenced - certainly in Austria, 
England and Wales, Finland, Northern 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 that procedural timing requirements 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 application  must  give  judgment within a certain 
number of days of the application 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 Attachment Order is granted  

• 

• 

• 

Applications for a bank attachment order or equivalent measure in national 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 enforcement 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’ procedural 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  orders  or  equivalent  measures  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,  for  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 urgency is not omnipresent in all EU jurisdictions, and there appears 
to  be  no  such  requirement  in  a  number  of  Member  States  including  England  and  Wales, 
France,  Finland,  Latvia,  Netherlands,  Northern  Ireland,  Romania,  Slovakia,  Scotland, 
Slovenia, and Sweden ( 9 MS). 

99  

Some  Member  States  stipulate  that  the  substantive  proceedings  must  be  commenced  by  the  creditor 
within a defined time period following the granting of the application for precautionary measures, e.g. 
within one week (domestic claims) or two weeks (cross-border claims) in Denmark; within one month 
in Finland; or within 30 days of notification of the precautionary measure to the debtor in Portugal.   

EN 

73 

   EN 

 
                                                 
Unlike  the  substantive  condition  of  urgency,  applicants  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 must provide security – see below); and Slovenia, where the 
creditor is not required to demonstrate any risk if he is able to show it is probable 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  in  most  EU  Member  States.  
This  is  to  compensate  the  debtor  for  damage  flowing  from  the  award  of  a  bank  attachment 
order  or  equivalent  measure  which  should  not  have  been  granted,  and  to  deter  frivolous  or 
vexatious applications for such measures 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 account (e.g. in Latvia). 
Security or other assets can also be deposited at court (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 damages 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 security 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 the 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 Orders 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. However, there are other important legal effects of 
the  measures  in  the  different  EU  Member  States  that  need  to  be  considered.    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; 

74 

   EN 

• 

• 

EN 

 
• 

• 

What  the  effect  is  of  the  bank  attachment  order  or  equivalent  measure  on  the 

debtor’s other creditors (i.e. does it confer any preferential rights on the applicant); 

Whether breach of the bank attachment order or equivalent measure gives rise to a 

criminal as well as a civil offence.   

A  further  notable  issue  is  whether  the  bank  attachment  or  equivalent  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 the asset on the part of the debtor. These attachments 
create additional obligations on banks to provide information on debtors' accounts, raising 
questions of banking protection and data secrecy.   

Member States have different approaches to preserving debtors’ data 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 seeking their agreement.  Likewise, in France banks 
receiving a court request for a preventive 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 attachment 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 equivalent 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,  Denmark,  Finland,  France,  Germany,  Greece,  Italy,  Luxembourg, 
Portugal, Romania, Spain, Scotland, Slovenia and Sweden. 

EN 

75 

   EN 

 
                                                 
It  is  often  not  clear  what  effect  a  bank  attachment  order  or  equivalent  measure  has  on  the 
creditor in relation his ranking in relation to the debtor’s other creditors. In Finland, a seizure 
order does not afford the applicant any preferential right to the funds which 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  States  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 insolvency proceedings. The ‘group 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, third category of Member States, being common law 
jurisdictions  such  as  England  and  Wales  and  Ireland,  where  preservation  orders  do  not 
affect the ranking of competing creditors at all. 

Civil/criminal offences for breaching Bank attachment or equivalent measure 

It appears that breach of a bank 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 against a Bank Attachment Order  

• 

• 

• 

There  generally  exists  an  appeal  mechanism  against  a  bank  attachment  order  or  equivalent 
measure in the national legislation of EU Member States. However, the nature and scope of 
the appeal is not standardised.  Relevant variables are: 

Whether it is open to both parties to appeal the decision, or also a third party; 

The  timeframe  for  making  the  appeal.  There  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 becomes 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) states that these Member States are Austria, Denmark, England, France, 
Germany, Ireland, Portugal, Spain, Scotland and Sweden.  

EN 

76 

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conventional appeal is not available, but there 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 effects of the previous measure (Luxembourg). 

EN 

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ANNEX V 

SUMMARY OF EBTP SURVEY DATA 

Commercial Disputes and Cross Border Debt Recovery 

The  European  Business  Test  Panel  (EBTP)  was  used  to  obtain  views  from  the  business 
community on the extent to which commercial disputes arise in cross-border trade in Europe 
(including the extent to which choice of court agreements are used in international contracts) 
and the scope for action to facilitate 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 related 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 therefore 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  consultation  tool  and  provided  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 terms of individual Member States, the 
most represented countries were DE (19%), PL (11%) and LU (8%). Other countries ranged 
from 0% to 7%. 

the 

top 

three  most  represented  sectors  were  real 
As  regards  business  sectors, 
estate/renting/business activities (20%), manufacturing (19%) and wholesale and retail trade, 
repair  of  motor  vehicles,  motorcycles  and  personal  and  household  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 employees), 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 disputes and cross-border debt recovery. 

3.1 Commercial disputes 

•  83%  of  the  businesses  said  that  they  provide  services  or  sell  goods  to  consumers  or 
businesses in another EU Member State. 

EN 

78 

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•  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  courts  in  another  EU  Member  State,  the  value  of  the  claim 
was ranked by 92% of the respondents as either ‘very important’ or ‘important’, followed by 
the cost of going to court (88%) and the complexity of the proceedings (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  important  in  deciding  to  go  to  court  than  in  cross-
border cases. 

•  The  costs  of  litigating  abroad  were  seen  as  being  ‘much  more  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  dispute  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 international contracts – almost 70% of 
business  providing  services  or  selling  goods  in  another  EU  Member  State  have  a  choice  of 
court agreements in their international contracts. 7,7% of the respondents reported that in the 
past  five  years  their  contractual  counterpart  did  not  comply  with  the  clause  designating  the 
competent court and took the dispute 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 further 39%. The smaller the business, the more 
likely  it  was  to  highlight  the  importance  of  debt  recovery  issues  as  a  factor  in  cross-border 
trade. 

• Various methods were used by survey respondents to help with managing the risk of non-
payment  including  payment  in  advance  (20%  of  respondents),  factoring,  credit  insurance, 
invoice  discounting.  With  the  exception  of  credit  insurance,  less  than  half  the  respondents 
considered  such  methods  as  adequately  meeting  their  needs.  Small  businesses  were  more 
likely than larger firms to ask for payment in advance. The explanation for this could be that 
smaller firms do not have the cash flow required to defer payment. 

•  Only  11%  of  the  survey  respondents  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 granted (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 reason for seeking a bank attachment order. 

•  The  EBTP  results  point  to  other  factors  apart  from  the  risk  of  assets  being  moved  as 
influencing  the  decision  on  whether  or  not  to  apply  for  a  bank  attachment  order.  In 

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particular, the cost-benefit analysis that applied to decisions regarding cross-border litigation 
generally  also  applied  with  bank  attachments  with  the  value  of  the  claim  being  ‘very 
important’  or  ‘important’  to  most  (96%)  respondents  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  European  countries  regarding  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  would  be  ‘a  lot  more  likely’  to  be  likely  to 
undertake (more) cross-border trade if rules are adopted at a European level making 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 court 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 
situation.
welcome 

a  European 

initiative 

improve 

level 

the 

an 

to 

at 

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ANNEX VI 

LAWYER'S FEES IN THE MEMBER STATES 

Negotiable Legal 
Fees 

Average 

EU  

Member State 

Legal Fees  

Regulation of law or of Bar 

Fee €/h 

x 10h 

Freely 
negotiable 

Exists 

Applies if 
nothing 
was 
agreed 

Set out 
rules on 
agreements 

Austria 

Belgium 

Bulgaria 

Cyprus 

Czech 
Republic 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Ireland 

Italy 

Latvia 

Lithuania 

347 

203 

46 

116 

3470 

2030 

460 

1160 

87 

870 

347 

203 

347 

347 

347 

203 

87 

521 

521 

347 

87 

3470 

2030 

3470 

3470 

3470 

2030 

870 

5210 

5210 

3470 

870 

√ 

√ 

√ 

√* 

√ 

√ 

√ 

√ 

√ 

√* 

√ 

√ 

√ 

√ 

√ 

√ 

81 

EN 

√ 

no 

√ 

√ 

√ 

no 

no 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

no 

no 

√ 

- 

no 

√ 

√ 

- 

- 

+ 

+ 

√ 

no 

no 

+ 

√ 

- 

- 

no 

- 

√ 

√ 

√ 

- 

- 

√ 

√ 

√ 

√ 

√ 

+ 

no 

- 

- 

   EN 

 
 
 
 
Luxembourg 

Malta 

Netherlands 

Poland 

203 

116 

347 

87 

2030 

1160 

3470 

870 

Portugal** 

203 

20308 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

87 

87 

203 

347 

347 

870 

870 

2030 

3470 

3470 

United 
Kingdom*** 

521 

5210 

Average 

241,04 

2410,40 

√ 

√ 

√ 

√ 

+ 

√ 

√ 

√* 

√ 

√ 

√ 

√ 

√ 

no 

√ 

√ 

√ 

√ 

√ 

√ 

no 

√ 

no 

? 

- 

no 

+ 

+ 

√ 

+ 

+ 

- 

√ 

√ 

√ 

- 

√ 

+ 

√ 

no 

√ 

√ 

- 

√ 

* 

on higher fee, there is a minimum in the regulation(s) 

** 

regulation for solicitors and advocates, but no regulation for lawyers, barristers 

***  freely  negotiable    in  Scotland;  in  England  and  Wales  for  barristers  and  solicitors  in 
contentious businesses, a regulation does not exist in Scotland. No data on Northern Ireland 

+ 

no data 

EN 

82 

   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  collection  agencies  are  an  alternative  source  of 
information  on  bad  debts.  In  addition  to  consulting  FENCA,  we  sought  the  views  of  three 
large debt collection companies. However, although we could obtain information on bad debts 
overall (i.e. domestic and cross-border), none of those we consulted 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  written  off  (in  other  words  are  bad  debts)103.  However,  as  noted 
above, this includes both debts arising from transactions 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 according to Eurostat104.  Intra-EU trade 
at  €2,194  billion  thus  accounts  for  18.8%  of  total  domestic  demand  in  the  EU.  Assuming 
debts are written-off at a similar rate for domestic 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 Information from Debt Collection Agencies 

According to an analysis of their annual reports and other publicly-available documents, the 
three  largest  debt  collection  companies  -  Atradius,  COFAE  and  Interum  Justitia  -  together 
represent some 20% of the European debt collection business by value.106  In 2009, the three 

102 

103 
104 
105 
106 

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 Europe equals 300 billion 
euros. However, this covers both domestic and cross-border debt. 
2009 European Payment Index 
Eurostat, all figures are for 2009 
Representing bad debts according to the European Payment Index 
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 

83 

   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 

Atradius 

COFACE 

Intrum Justitia 

Total 

Debt 
(€million) 

Notes 

1,358.6  

includes Turkey 

1,065.0  

461.7  

2,885.3  

includes 
Switzerland 

 n/a 

 n/a 

This  estimate  covers  both  domestic  and  cross-border  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 ratio of cross border debt would therefore be 37.6% (18.8% based on 
the Eurostat data explained above x 2). The total amount of cross 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  collection  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 debt 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 therefore € 54,240 million (€5,424 million x10). 

It needs to be borne in mind that estimates provided by debt collection agencies drawing on 
their own business may underestimate the level of cross-border debt. This is because smaller 
businesses often do not use debt collection companies because of the costs involved (see draft 
final  report,  pages  17,  32-33)  while  larger  undertakings  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 Payment 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 difference of some €1.8 billion). 

http://www.coface.com/CofacePortal/ShowBinary/BEA%20Repository/COM_en_EN/documents/Finan
cial_report_2009 

EN 

84 

   EN