Attachment of bank accounts in the European Union made simpler as of 18 January 2017

According to an inquiry carried out by Atradius (April 2016) into the payment reliability of 3,000 businesses in 13 West European countries (Payment Practices Barometer), 88 percent of the Dutch companies was faced with late payments. As a result, 20 percent of the entrepreneurs were forced to postpone payment to their own suppliers, which gave cause to one fifth of the companies to critically examine the payment history and the credit risk of customers in more detail .

In Western Europe, the prospects fluctuate, according to Atradius. In 2015, no less than 90 percent of West European businesses were affected by late payments. Businesses in Italy and Greece were most impacted by overdue payments by domestic business relationships, while British businesses were most adversely impacted by late payments 
from foreign trading partners. In 2016, 57.9 percent of the businesses in Western Europe was affected by late payments of domestic invoices due to customers’ insufficient availability of funds. In 2015, this was 51.4 percent. This was particularly the case for Greek businesses. And foreign invoices of more businesses – 40.2 percent compared to 37.1 percent in 2015 – were paid late. Businesses in Austria were most frequently affected by payment delays.

European attachment order (European account preservation order-EAPO)

On 18 January 2017, the EU Regulation enabling the attachment of bank accounts comes into force. This Regulation applies for all the Member States, except for Denmark and the United Kingdom. In the Netherlands it is already relatively simple to levy a pre-judgment attachment. But that was more difficult for claims on a foreign debtor, because for such attachments proceedings before foreign courts had to be followed. For Dutch citizens and businesses it has become easier – by using a special European procedure - to levy a pre-judgment attachment on a bank account in another Member State. Ultimately, the objective is that the simpler recovery of cross-border claims leads to a lower amount in irrecoverable debts and that as a result a positive economic effect wil be realized.

This European procedure applies to monetary claims in civil and commercial matters which are cross-border in nature. This is the case if bank and/or creditor are domiciled in another Member State than the court issuing the attachment order.

Relevant to whom?

  • private persons with bank accounts in other Member States
  • internationally operating companies
  • private persons and businesses that are embroiled in civil or commercial proceedings, where at least one of the parties is established in another Member State and holds a bank account there

In which situation is the Regulation not applicable?

  • disputes about matrimonial property law
  • disputes about wills and succession
  • claims against a debtor involved in insolvency proceedings
  • disputes about social security
  • arbitration
  • bank accounts which are immune from seizure under the law of the Member State in which the accounts are maintained
  • bank accounts held by or with central banks

The course of the proceedings

An application for a European attachment order can be made when proceedings are not yet brought before the court as well as during legal proceedings. This takes place by way of a specific form. If no proceedings are brought against the debtor yet, the proceedings on the merits are to be commenced within a term set by the court after the application for a European attachment order has been submitted. Furthermore, the creditor is required to provide security for his claim only if the court considers it necessary or appropriate.

Subsequently, the court will test the application. The court will issue the attachment order if the creditor has furnished sufficient evidence to convince the court that an urgent need for an attachment order exists, in view of the real risk that debts are irrecoverable or that it will be more difficult to collect the debts without the attachment order.

The debtor himself will not be heard in these proceedings by the court and will not be informed prior to the issuance of the attachment order.

The court assesses the application and if in compliance with the stipulated conditions, the court will issue the attachment order by way of a specific form. If the creditor does not have obtained a court judgment yet, the decision will be given within 10 working days. If the creditor has already been given a judgment, the court will issue the attachment order within 5 working days.

Request for information

The Regulation provides for a mechanism for the creditor to make a request to a bank for obtaining account information if he does not know the name and/or the address of the bank where the debtor holds an account or accounts. The creditor submits this application together with the application for an attachment order. In the Netherlands, the bailiff is the designated information authority. The bailiff is entitled to request account information from the banks. If the name and/or the address of the bank where the debtor holds an account is unknown, it is obvious that the bailiff lodges a request for account information with the five major banks in the Netherlands. The bank in question must respond to this request expeditiously and is not allowed to inform the debtor on the request. The costs involved in requesting information are to be borne by the creditor.

An important aspect is that a request for information can only be made if the creditor has already obtained a court judgment or an authentic deed on the basis of which the debtor must pay the claim. In that case the creditor can also levy an executory attachment. The question therefore is whether this possibility will be used frequently.

Differences with the Dutch procedure

The European procedure will exist next to the Dutch procedure for levying pre-judgment attachment. The creditor has therefore the choice between the regulation in conformity with the EU Regulation and the national regulation. The European attachment order has the same rank as a Dutch attachment order.
There are some differences, which will be explained hereinafter

 

European attachment order (EAPO)

Dutch leave for pre-judgment attachment

The creditor must furnish security if he submits an application for an  attachment order (EAPO).

The court may require security, but in general little use is made thereof.

European attachment is subject to an amount for which the order is given, which is a maximum amount

The court also grants leave for levying, attachment up to a certain amount, but if at the time the attachment is levied the account shows a higher balance than the amount for which leave was granted, the entire bank account balance will be attached.

The debtor will not be heard by the court. There are no exceptions to this rule.

In principle, the debtor will not be heard by the court. The court may hear both the creditor and the debtor if the court reject the application wholly or in part.

Fixed time limits for a decision apply:the court is to pronounce a decision     on the application for the issuance of       usually an attachment order.

No fixed time limits for a decision apply. These differ from court to court, but are usually very short.

A bank statement must be issued before the end of the third working after the execution of the attachment order.

A bank statement must be issued as soon as four weeks have lapsed after attachment was levied.

The Regulation provides for a regulation concerning the request for account information.

Dutch law does not provide for a regulation concerning the request for account information.

 

If you have any questions or have doubts about your legal position, please contact Sandra Verburgt via verburgt@delissenmartens.nl or your own contact person at Delissen Martens T +31 70 311 54 11.


This Newsletter is only a general representation of the applicable law. It can in no way serve as advice in your specific situation

Published: 19 January 2017 in Tax Law, Litigation
Attachment of bank accounts in the European Union made simpler as of 18 January 2017
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