As of January 18th, 2017, cross-border debt recovery in civil and commercial matters gained a new dimension. Creditors seeking satisfaction will now have the option of preserving accounts of their debtors, given that these accounts are located within other Member States of the EU (except UK and Denmark). This promising uniform European procedure seems to be an efficient way of prohibiting debtors from transferring or withdrawing funds from their bank accounts. The intended purpose of EU Regulation No 655/2014 („Regulation“) is to give creditors an edge in preventing the frustration of enforcement of their claims against debtors.
As the efficiency of the Preservation Order is based on its surprise effect, the protective measure necessarily needs to be adopted in the absence of, and without prior service on the debtor against whom it is directed. This would normally render the judicial decision unenforceable in another Member State of the EU, since the rights of the debtor to a defense of the claim are not observed in accordance with the established case law of the Court of Justice (based on Case no 125/79). In this respect, the Regulation provides for specific conditions and requirements in order to prevent abuse of process.
The general concept of the Preservation Order is that it needs to be enforced in accordance with the national law of that Member State where enforcement is sought. On many occasions, the Regulation explicitly refers to the applicability such a Member State’s national law. As a consequence, slight differences in application and enforcement may arise due to discrepancies in the various Member States’ laws. Likewise, direct or indirect limitations may arise from applicable provisions of Slovak national law.
a) Amounts exempted from seizure
According to the relevant provisions of the Act No 233/1995, the Slovak Enforcement Code, the following amounts are not subject to enforcement:
- funds on an account up to 99.58 €; however, if the defendant has more than one account, the exemption applies to only the first 99.58 € in the first account;
- funds explicitly declared by the debtor as being intended for the payment of the salaries of his or her staff in respect of the payment period closest to the date on which the bank was instructed to initiate an enforcement measure;
- concerning natural persons, should they receive salary payment to the targeted account, amounts protected by law (minimal living standard) are exempted from seizure; said natural person will be entitled to withdraw that amount monthly from the targeted account.
A Security is mandatory only in cases where the creditor has not yet obtained a judgement requiring the debtor to pay the creditor’s claim. However, by way of exception, the court may dispense with this requirement, when inappropriate (e.g. the Order is unlikely to cause any damage, or the creditor has very strong evidence but insufficient means to provide security).
On the other hand, if the creditor has already obtained a judgement, the courts should limit the exercise of their discretion, and for the purposes of assessing whether the security is necessary or not, focus only on whether the judgement is already enforceable or only provisionally enforceable due to a pending appeal.
In case the application was lodged with a Slovak court, these additional rules will presumably apply:
- the amount of security is subject to discretionary scrutiny by individual judges. However a minimum security in the amount of 1/3 of the amount for which the Preservation Order is sought was proposed;
- the security should be, preferably, provided as a cash deposit, in the form of a bank guarantee or an irrevocable letter of credit in favour of the debtor.
Slovakia imposes rather strict liability where the creditor is liable for the objective outcome. Accordingly, the creditor will be liable for any damage caused to the debtor by the Preservation Order, regardless of the underlying fault.
The Regulation has a comparative edge over other national instruments, however, due to the introduced strict liability, any application for issuing a Preservation Order will require qualified and cautious preparation. It should be also stressed that the newly proposed Slovak Act on the implementation of the European Account Preservation Order has not yet been adopted by the National Council. Therefore some of the relevant parts of the applicable national law may be subject to amendments and changes. In case you are interested in further details, please do not hesitate to contact our experts for detailed and case oriented legal advice.