Regulation (EU) No. 655/2014 (provisional attachment of accounts regulation)

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Regulation (EU) No. 655/2014

Title: Regulation (EU) No. 655/2014 of the European Parliament and of the Council of 15 May 2014 introducing a procedure for a European decision on the attachment of accounts with a view to facilitating the cross-border recovery of claims in civil and commercial matters
Designation:
(not official) 		Provisional attachment of accounts regulation
Scope: EU
Legal matter: civil right
Basis: Treaty on the Functioning of the European Union , in particular Art. 81 Para. 2 lit. a, e and f
Procedure overview: European Commission
European Parliament
IPEX Wiki
To be used from: 18th January 2017
Reference: OJ L 189 of June 27, 2014, pp. 59-92
Full text Consolidated version (not official)
basic version
Regulation has entered into force and is applicable.
Please note the information on the current version of legal acts of the European Union !

The . Regulation (EU) No 655/2014 on the attachment of bank accounts (hence provisional accounts Pfändungs regulation, not official abbreviation: EuKoPfVO), signed in Brussels ( Belgium ) on 15 May 2014 to all creditors give the alternative claim before the initiation of the main proceedings or to be able to ensure in every phase of the legal dispute that a later court decision on the main matter can also be enforced. This security should also be available to a creditor who has already obtained a court decision, a court settlement or a public document with which the debtor was requested to meet the creditor's claim.

Selected regulations

scope of application

According to Article 2 of the Regulation, this only applies to monetary claims in civil and commercial matters in cross-border legal cases within the meaning of Article 3 of the Regulation, regardless of the type of court.

In particular, the regulation does not apply to

  • Tax and customs matters as well as administrative matters or the liability of the state for acts or omissions in the context of the exercise of sovereign rights ("acta jure imperii").
  • matrimonial property regimes or matrimonial property regimes based on relationships which, according to the law applicable to these relationships, have effects comparable to those of marriage;
  • the area of ​​will and inheritance law, including maintenance obligations that arise with death;
  • Claims against a debtor against whom insolvency proceedings, settlements or similar proceedings have been opened;
  • social security;
  • arbitration.
  • Bank accounts that may not be seized under the law of the Member State in which the account is held, nor for accounts that are kept in connection with the operation of a system within the meaning of Article 2 (a) of Directive 98/26 / EC.
  • Bank accounts held by or with central banks when they act in their capacity as monetary authorities.

Scope of protection

The court order for the provisional seizure within the meaning of this regulation is intended for security

  • already due and
  • claims not yet due,
  • Claims arising from an unlawful act or an act that is equivalent to an unlawful act, as well as
  • Claim for damages or to
  • Restoration of the previous state based on a punishable act,

can be claimed by the obligee. A court order within the meaning of this regulation can only be used for claims that are not yet due if this claim arises from a transaction that has already taken place or an event that has already occurred and its amount can be determined.

A provisional attachment of amounts exempted from attachment under the law of the executing Member State is not possible.

The amount of the temporary backup

The obligee has the option of a resolution for the attachment of an amount

  • in the amount of the main claim or
  • over a lower amount

to apply. The latter could be in his interest, for example, if he has already received other securities for part of his claim.

Jurisdiction

In principle, jurisdiction lies with the courts of the Union Member State, the courts of which have jurisdiction in the main matter, so that a close link is ensured between the procedure for issuing an attachment order and the procedure in the main matter.

If the debtor is a consumer resident in a Member State of the Union, the jurisdiction to issue the order on the attachment of accounts lies exclusively with the courts of that Member State.

Procedure

The procedure is in writing and it is up to the obligee to back up his submissions with sufficient evidence.

If the provisional attachment of the account is rejected, the creditor can appeal against the court's decision within thirty days.

Third parties who can assert rights to an account of the debtor can - provided that national law allows this - appeal against the attachment of the account.

Representation by a lawyer or other legal advisor is not mandatory, unless this is provided for by national law.

The attachment order issued in one EU Member State is recognized in the other EU Member States without the need for any special procedure and is enforceable in the other Member States without the need for a declaration of enforceability, legalization or similar formalities.

Surprise effect

In order for the temporary attachment to be guaranteed at all and to ensure that it is a useful instrument for a creditor, the debtor should in principle neither inform about the application of the obligee nor be heard before the resolution is issued, nor should it be informed before the resolution is executed (surprise effect).

As there is no prior hearing of the debtor, specific national guarantees (e.g. security by the creditor) must be provided to avoid misuse of the attachment order and to protect the debtor's rights.

Abuse check and prohibition of abuse

In order to prevent the misuse of the legal institution of the attachment, the court must adequately weigh the conditions for issuing the attachment order. In particular, the obligee's interest in obtaining a resolution and the debtor's interest in preventing abuse of the resolution.

If, on the basis of the evidence and information presented by the obligee or his witness (s), if any, the court does not believe that the attachment of said account or accounts is justified, it may not issue the order.

In principle, the obligee is prohibited from filing parallel applications to several courts at the same time for the issuance of an order for a temporary attachment against the same debtor to secure the same claim. If the obligee has already obtained an equivalent national order, he must inform the court and the court will examine, taking into account all the circumstances of the case, whether the issuance of the order on the provisional attachment is still appropriate in whole or in part.

In any case, the debtor can raise legal remedies against the provisional attachment of accounts - after the attachment - and / or apply for the release of the attached assets if he provides other appropriate security.

Account information

The obligee may request that the court, before issuing an attachment order, obtain the information necessary to identify the debtor's account from an information authority in the Member State in which the obligee believes the debtor has an account . To protect the debtor's personal data, the information received about the establishment of the debtor's bank account is not passed on to the creditor.

Deadlines

In order to ensure that the decision on the attachment is issued quickly and expeditiously, the regulation provides for short periods of five or ten days for the completion of the various procedural steps. The courts or authorities involved in the proceedings can only deviate from these deadlines in exceptional circumstances, for example in legally or factually complex cases.

Regulation (EEC, Euratom) No. 1182/71 applies to the calculation of the periods and dates provided for in the regulation.

Period of validity of the temporary attachment

The seized funds with the order for provisional seizure remain bound as follows:

  • until the decision is revoked;
  • until the execution of the order has ended or
  • until a measure for the enforcement of a court decision, a court settlement or a public document obtained by the obligee with regard to the claim to be secured by the order for the provisional attachment becomes effective with regard to the funds provisionally attached by the order.

Legal basis

The legal basis for the issuing of this regulation is the authorization of the European Union to maintain and further develop the area of ​​freedom, security and law in which the free movement of persons is guaranteed. The regulation on the temporary attachment of accounts is part of measures to gradually establish such an area in the area of ​​judicial cooperation in civil matters that have a cross-border connection. It follows that the European Union can adopt measures, in particular if this is necessary for the proper functioning of the internal market. The regulation was based on Article 81 (2) of the Treaty on the Functioning of the European Union (TFEU).

Structure of the regulation

  • CHAPTER 1 (SUBJECT MATTER, SCOPE AND DEFINITIONS)
    • Article 1 (subject)
    • Article 2 (scope)
    • Article 3 (cross-border cases)
    • Article 4 (definitions)
  • CHAPTER 2 (PROCEDURE FOR EFFECTING A PRESENTATIONAL ATTACHMENT)
    • Article 5 (availability)
    • Article 6 (jurisdiction)
    • Article 7 (conditions for issuing an attachment order)
    • Article 8 (Application for a Preservation Order)
    • Article 9 (taking of evidence)
    • Article 10 (initiation of the main proceedings)
    • Article 11 (procedure without prior hearing of the respondent)
    • Article 12 (security deposit by the obligee)
    • Article 13 (liability of the obligee)
    • Article 14 (request for bank account information)
    • Article 15 (interest and costs)
    • Article 16 (parallel requests)
    • Article 17 (decision on the application for an attachment order)
    • Article 18 (Time limits applicable to deciding on an application for a Preservation Order)
    • Article 19 (Form and content of the Preservation Order)
    • Article 20 (duration of attachment)
    • Article 21 (appeal against rejection of the application for an attachment order)
  • CHAPTER 3 (RECOGNITION, ENFORCEMENT AND ENFORCEMENT OF THE DECISION ON PROVISIONAL ATTACHMENT)
    • Article 22 (recognition and enforceability)
    • Article 23 (Enforcement of the Preservation Order)
    • Article 24 (Execution of the Preservation Order)
    • Article 25 (Declaration on the attachment of funds)
    • Article 26 (liability of the bank)
    • Article 27 (Obligation of the obligee to request the release of excess amounts attached)
    • Article 28 (service on the debtor)
    • Article 29 (transmission of documents)
    • Article 30 (Provisional attachment in the case of joint accounts and trust accounts)
    • Article 31 (Amounts exempted from attachment)
    • Article 32 (Rank of the Preservation Order)
  • CHAPTER 4 (REMEDIES)
    • Article 33 (Appeal by the debtor against the attachment order)
    • Article 34 (remedies by the debtor against the execution of the attachment order)
    • Article 35 (Other legal remedies for the obligee and the debtor)
    • Article 36 (procedure for redress under Articles 33, 34 and 35)
    • Article 37 (Appeal against decisions on the appeal)
    • Article 38 (Security instead of attachment)
    • Article 39 (third party rights)
  • CHAPTER 5 (GENERAL PROVISIONS)
    • Article 40 (legalization or similar formalities)
    • Article 41 (legal representation)
    • Article 42 (court fees)
    • Article 43 (Bank costs)
    • Article 44 (Fees levied by the authorities)
    • Article 45 (time limits)
    • Article 46 (relationship with national procedural law)
    • Article 47 (data protection)
    • Article 48 (relationship with other legal acts)
    • Article 49 (language regime)
    • Article 50 (Information to be provided by the Member States)
    • Article 51 (preparation and subsequent amendment of forms)
    • Article 52 (committee procedure)
    • Article 53 (monitoring and review)
  • CHAPTER 6 (FINAL PROVISIONS)
    • Article 54 (entry into force)

Come into effect

According to Article 54 of the Regulation, this comes into force on the twentieth day after its publication in the Official Journal of the European Union and has been in effect since January 18, 2017 - with the exception of Article 50 - which applies from July 18, 2016.

The regulation is now binding in its entirety and, in accordance with the Union Treaties, directly applies in the Union Member States , with the exception of the United Kingdom and Denmark .

Austria

The Austrian legislator has ordered the application of the provisions of the EuKoPfVO also to purely domestic circumstances if the bank account to be temporarily seized, the competent court and the address of the obligee are in Austria, i.e. there is no further cross-border reference (Section 422 (3) EO ).

See also

literature

  • Franz Mohr: The provisional attachment of accounts - approval and enforcement procedures - application requirements - evidence procedure - legal remedies for the debtor - tasks of the bank as a third party debtor. Vienna 2014, LexisNexis publishing house, ISBN 978-3-7007-5848-8 .
  • European Commission: Green Paper on More Efficient Enforcement of Judgments in the European Union - Preservation of Accounts, Luxembourg 2006, Office for Official Publications of the European Communities.
  • Daniela Bereiter: Cross-border provisional attachment of accounts with special consideration of Austrian and German law. Graz 2015, University of Graz, diploma thesis.
  • Matthias Klöpfer, in: Geimer / Schütze (ed.): International legal relations in civil and commercial matters . Loose leaf, 52nd edition 2016, commentary on the EuKPfVO.

Web links

Individual evidence

  1. ↑ See Article 1, Paragraph 2 of the Regulation: The decision on provisional attachment is available to the obligee as an alternative to the measures of provisional attachment under national law .
  2. ↑ See also Article 10 of Regulation (EU) No. 655/2014 on the deadlines and obligations of the obligee.
  3. ↑ See: Recital 11 of Regulation (EU) No. 655/2014.
  4. ↑ For jurisdiction see Article 6 of the regulation.
  5. ↑ Directive 98/26 / EC of the European Parliament and of the Council of May 19, 1998 on the effectiveness of clearing in payment and securities delivery and settlement systems (OJ L 166 of June 11, 1998, p. 45).
  6. ↑ See Article 5 of the Regulation. According to recital 16, in situations in which the obligee applies for an attachment order before initiating proceedings on the merits before a court, he is obliged to initiate such proceedings within a specific time limit and the court before which he is responsible Has applied for a resolution to provide evidence that this procedure has been initiated. Should the obligee fail to comply with this obligation, the decision must be revoked by the court on its own initiative or end automatically.
  7. ↑ See: Recital 12 of Regulation (EU) No. 655/2014.
  8. ↑ According to the definition in the Regulation, Article 4, No. 12, the "executing Member State" is the Member State in which the account to be attached is held.
  9. ↑ For example, amounts that are necessary to ensure the livelihood of the debtor and his family - see: Article 31 and Recital 36 of Regulation (EU) No. 655/2014.
  10. ↑ Article 17 Paragraphs 4 and 27 of Regulation (EU) No. 655/2014. For the order of execution in the case of several accounts and different account types, see Articles 24 and 30 of the Regulation.
  11. ↑ See: Recital 12 of Regulation (EU) No. 655/2014.
  12. ↑ For jurisdiction see Article 6 of the regulation.
  13. ↑ See: Recital 13 of Regulation (EU) No. 655/2014.
  14. ↑ See Articles 7 to 9 of Regulation (EU) No. 655/2014.
  15. ↑ See Articles 21 and 35 ff of Regulation (EU) No. 655/2014.
  16. ↑ See Article 39 of Regulation (EU) No. 655/2014.
  17. ↑ See Article 41 of Regulation (EU) No. 655/2014.
  18. ↑ See Articles 22 and 40 of Regulation (EU) No. 655/2014.
  19. ↑ See Article 11 and Recital 15 of Regulation (EU) No. 655/2014.
  20. ↑ See Articles 12 and 13 and Recitals 17 to 19 of Regulation (EU) No. 655/2014.
  21. ↑ See: Recital 14 of Regulation (EU) No. 655/2014.
  22. ↑ See: Articles 7, 9, 17 and Recital 15 of Regulation (EU) No. 655/2014.
  23. ↑ Article 16 of Regulation (EU) No. 655/2014.
  24. ↑ See Article 33 ff and Recital 30 ff of Regulation (EU) No. 655/2014.
  25. ↑ See Article 38 and Recital 35 of Regulation (EU) No. 655/2014.
  26. ↑ See Article 14 and Recital 21 of Regulation (EU) No. 655/2014.
  27. ↑ See Article 47 and Recital 22 of Regulation (EU) No. 655/2014 and Directive 95/46 / EC of the European Parliament and of the Council of October 24, 1995 on the protection of natural persons with regard to the processing of personal data and the free movement of such data (OJ . L 281 of 23.11.1995, p. 31).
  28. ↑ See Articles 18 and 45 and Recital 37 of Regulation (EU) No. 655/2014.
  29. ↑ Regulation (EEC, Euratom) No. 1182/71 of the Council of 3 June 1971 laying down the rules for deadlines, dates and dates (OJ L 124, 8.6.1971, p. 1).
  30. ↑ See Recital 38 of Regulation (EU) No. 655/2014.
  31. ↑ Articles 20 and 38 of Regulation (EU) No. 655/2014.
  32. ↑ See: Preamble and Recitals 1 and 2 of Regulation (EU) No. 655/2014.
  33. ↑ In accordance with Article 3 of Protocol No. 21, annexed to the TEU and TFEU, on the position of the United Kingdom and Ireland with regard to the area of ​​freedom, security and justice , Ireland has indicated that it wishes to take part in the adoption and application of this regulation (see recital 49), whereas the United Kingdom does not wish to take part in the adoption of this Regulation, pursuant to Articles 1 and 2 of Protocol 21 annexed to the TEU and TFEU, and Ireland, as regards the area of ​​freedom, security and justice and does not consider itself bound by this regulation or obliged to apply it (see recital 50). In accordance with Articles 1 and 2 of Protocol No. 22 on the position of Denmark annexed to the TEU and the TFEU, Denmark does not participate in the adoption of this regulation and is neither bound by this regulation nor obliged to apply it (see recitals 48 and 51 of the Regulation (EU) No. 655/2014).