The REGULATION (EU) No 655/2014 for establishing a European Account Preservation Order procedure will be applicable in Romania, and in all other EU states, from 18th of January, with no other implementation in the national legal systems as EU regulations are of direct applicability.
The regulation establish a procedure for freezing the bank accounts of counterparties to recover cross-border claims, enabling a creditor to obtain a European Account Preservation Order (EAPO) which prevents the subsequent enforcement of the creditor’s claim from being jeopardised through the transfer or withdrawal of funds up to the amount specified in the EAPO which are held by the debtor or on his behalf in a bank account maintained in a other EU country.
The EAPO shall be available to the creditor as an alternative to preservation measures under national law, providing a guarantee that the amounts due will not disappear from the debtor’s account until a debt recovery court action is finalized.
To use the EAPO a creditor must justify by sufficient evidence that there is a real risk that, if the freezing measure is not taken, further execution of the claim against the debtor will be hindered or hampered considerably.
For example, issuing the EAPO is perfectly justified if the creditor fears that the debtor intends to sell its goods or withdraw amounts under its accounts to avoid repayment of amounts owed.
The EAPO will not apply when:
1) rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;
2) wills and succession, including maintenance obligations arising by reason of death;
3) claims against a debtor in relation to whom bankruptcy proceedings, proceedings for the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions, or analogous proceedings have been opened;
4) social security;
The EAPO shall be available to the creditor in the following situations:
1) before the creditor initiates proceedings in a EU country against the debtor on the substance of the matter, or at any stage during such proceedings up until the issuing of the judgment or the approval or conclusion of a court settlement;
2) after the creditor has obtained in a EU country a judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim.
There are two conditions for a court to issue an EAPO:
1) the creditor has submitted sufficient evidence to satisfy the court that there is an urgent need for a protective measure in the form of a EAPO because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult.
2) where the creditor has not yet obtained in a EU country a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim, the creditor shall also submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor.
The jurisdiction of the EAPO is different depending if a legal judgement against the debtor was already obtained and/or if the debtor is consumer or not:
1) In case a legal judgement was already obtained:
The EAPO claim will be registered to the court of the EU country in which the judgment was issued;
If the debtor is a consumer who has concluded a contract with the creditor for a purpose which can be regarded as being outside the debtor’s trade or profession (relevant to most of the cases where the debtor is an individual) the EAPO claim will be registered to the court of the EU country in which the debtor has its registered address;
2) In case a legal judgement was not already obtained:
The EAPO claim will be registered to the court of the EU country in which the jurisdiction of the legal action lies. I If the debtor is a consumer, as described above , even if a judgement is obtained in a different EU country from the one the debtor’s has its registered address in, in this particular situation, the EU claim will be registered in the Member State in which the debtor has its registered address.
After obtaining the European Account Preservation Order judgment, as being a legal judgement, the next step is to register an enforcement claim to a judicial enforcer office like in all other court judgement cases:
1) If the judgement is obtained outside Romania, the original judgement document will have to be translated into Romanian language by a certified Ministry of Justice translator and presented with the enforcement claim to the judicial enforcement office;
2) If the judgement is obtained in Romania the enforcement case will be a standard one.
An important particularly of the procedure, that provides an additional guarantee to the creditor in the success recovery of its debt is that the EAPO is a procedure ex parte; the debtor is not notified the proceedings taken place, guaranteeing this way a surprise effect and ensuring the usefulness of this tool in order to recover debts from a debtor.
The EAPO issued in one EU country will be recognized and enforced in all other EU country without the requirement of any special procedure.
The practicability of this legal institution is that it will facilitate greatly the probability of recovering claims held against companies located in a EU country other than the country of residence of the creditor.