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06 November 2018
Until recently, a creditor with a claim against a debtor residing in an EU member state first had to successfully complete a civil action against the debtor. Only then could they issue a European Enforcement Order under EU Regulation 805/2004 or request the enforcement of the judgment by applying the national law of the country in which enforcement would take place. In the meantime, the other party was free to alienate its assets, so that by the time judgment was obtained, there were no assets to satisfy it.
All EU member states have domestic judicial procedures available for obtaining interim freezing or preserving orders to ensure that assets are not dissipated while proceedings take place, but hitherto there has been no pan-EU mechanism. It was usually impractical, for reasons of cost and time, to obtain a freezing order in every member state in which the other party may have had assets, leaving claimants with no effective means of preventing the other party from putting assets out of reach, particularly in cross-border claims.
EU Regulation 655/2014 has established a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters in order to correct this deficiency. The new procedure does not replace the current options under national laws but provides an additional user-friendly option. An application for a preservation order may be made by the claimant personally by completing a simple application form published on the official website of the European Union, with very detailed and clear guidelines. The other party is not notified of the application and the process of examining the application and applying the order if it is approved is fast and efficient. The court which has jurisdiction to issue a preservation order is the court which has international jurisdiction to try the main dispute between the parties.
In Cyprus, claimants must file an application at the district court with jurisdiction over the main dispute. It is filed ex parte under the EU Implementation Regulation (2016/1823) without notice to the other party. Once the district court is satisfied that all conditions for the issuance of a preservation order have been met, it issues the order in the form prescribed in Annex II of the EU Implementation Regulation. The order is then forwarded to the Ministry of Justice and Public Order, the competent authority in Cyprus, before being forwarded to other EU member states.
Correspondingly, when a preservation order is issued in another EU member state, it is received by the Ministry of Justice and Public Order and forwarded to the Central Bank of Cyprus, the designated information authority for the purposes of Article 14 of the regulation.
If applied properly and effectively, EU Regulation 655/2014 will be a useful tool for claimants. It is important that the appropriate balance is struck between the interests of the claimant and the party against whom the order is sought, and that frivolous or vexatious applications are not allowed. Article 12 of EU Regulation 805/2004 envisages that claimants will usually be required to provide security for an amount sufficient to ensure compensation for any damage suffered. When considering issuing freezing orders, the Cyprus courts have always required appropriate security to be provided for freezing orders and are likely to adopt a conservative approach to prevent abuse of the procedure. It is hoped that the courts of other member states will also adopt a balanced approach.
For further information on this topic please contact Marina Joud at Elias Neocleous & Co LLC by telephone (+357 25 110 110) or email (firstname.lastname@example.org). The Elias Neocleous & Co LLC website can be accessed at www.neo.law.
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