On 18 January 2017 EU Regulation 655/2014, which established a European Account Preservation Order (EAPO) procedure, became fully applicable in all EU member states with the exception of Denmark and the United Kingdom (for further details please see "EAPOs in Luxembourg: a further erosion of bank secrecy?").
The regulation aims to facilitate the collection of claims in civil and commercial matters by introducing a uniform EU procedure for identifying and freezing funds held in a debtor's bank accounts in another member state. This increased transparency in terms of a debtor's assets is a particularly new development for Luxembourg.
However, the regulation has left it to member states to determine the method of enforcement.
To this effect, the Luxembourg Parliament recently passed Act 7203, which has introduced a straightforward EAPO enforcement procedure that is in line with existing enforcement measures provided for by national law.
Already known as a favourable place for enforcement, mainly due to the possibility of attaching assets through a so-called saisie-arrêt (ie, a garnishment order), Luxembourg has taken a further step towards becoming an enforcement paradise by facilitating the enforcement of EAPOs.
Until now, it was possible to quickly attach assets in Luxembourg, but only if creditors knew where to look.
The EAPO procedure enables creditors to seek the assistance of local authorities to identify the banks holding a debtor's funds. Further, the new act allows the fast conversion of an EAPO into an order for payment. Creditors thus have a complete set of tools all the way from the conservatory to the enforcement and execution phase.
From EAPO to payment in one step
Under the new act, once an enforceable judgment awarding a creditor's claim has been obtained, the creditor can simply instruct a bailiff to serve a conversion notice on the banks and the debtor.
This conversion notice must include:
- a copy of the EAPO;
- any judicial decision amending the EAPO, if applicable;
- a copy of the judgment;
- a final statement of the amount due; and
- a formal demand for the payment of that amount.
The debtor must act quickly following service of the conversion notice: if it fails to file an opposition to the notice within 15 days (one to two months for parties outside Luxembourg), the relevant amount is immediately payable without the need for court intervention.
There are limited grounds for filing an opposition to a conversion notice. If an opposition is filed, the relevant court will deal with it relatively rapidly and its decision will be final and binding (no appeal possible).
The new act is expected to enter into force before the end of July 2018 and will undoubtedly confirm Luxembourg's status as an enforcement hot spot.
For further information on this topic please contact Antoine Laniez or Jad Nader at NautaDutilh Avocats Luxembourg Sàrl by telephone (+352 26 12 29 1) or email (firstname.lastname@example.org or email@example.com). The NautaDutilh Avocats Luxembourg Sàrl website can be accessed at www.nautadutilh.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.