Page - 63 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Provisional Account Preservation Measures in European Civil Procedure Law 63 does not lead to a registered charge on the subject of insurance. Therefore, an interim order prohibiting the disposal of the subject of preservation does not prevent legal interventions of other parties in the same subject (e.g. proceedings of enforcement). As a consequence of the debtor’s violation of such an order, the creditor therefore may challenge detrimental disposi- tions only in accordance with law of obligations.41 III. The European Account Preservation Order A. Preconditions, Procedural Aspects and Legal Remedies 1. Requirements for the Issuing of an EAPO The European Account Preservation Order (EAPO) is a genuine European interim measure aiming at facilitating the recovery of cross-border claims for citizens, seeking to preserve funds and recover bad debts.42 It is available for pecuniary claims, if the case concerns a civil and com- mercial matter (Art. 2 para. 1 EAPO Regulation). “Claims” are defined as claims for payment of a specific amount of money that have fallen due or claims for payment of a determinable amount of money arising from a transaction or an event that has already occurred (Art. 4 para. 5 EAPO Regulation). Recital 12 explains that those claims include claims in “tort, delict and quasi-delict”; the Regulation therefore applies to most civil monetary claims.43 The EAPO is only available in cross-border cases (Art. 2 para. 1 EAPO Regulation). A cross-border case is one in which the bank account or accounts to be preserved by the Preservation Order are maintained in a Member State other than: the Member State of the court seized with the application for the Preservation Order pursu- ant to Article 6 (Art. 3 para. 1 point a EAPO Regulation), or the Member State in which the creditor is domiciled (Art. 3 para. 1 point b EAPO Regulation). Since only one of the above requirements needs to be met in order to constitute a cross-border case, the only “intra-European” constellation in which the Regulation does not apply is where the creditor’s domicile, the seized court and the bank account to be preserved are situated in the same Member State.44 However, the Austrian legislator created a special provision making the rules of the Regulation also applicable in cases where all of the above elements are located in Austria (cf. § 422 para. 3 EO).45 The EAPO is available before the initiation of proceedings on the substance of the matter, during such proceedings until the judgment is adopted, and even after a judgment against the debtor 41 Vesna Rijavec, Cross-border effects of provisional measures in civil and commercial matters, in CROSS-BORDER CIVIL PROCEEDINGS IN THE EU 79, 91 (Vesna Rijavec & Tjaša Ivanc eds. 2012). 42 Reith, supra note 2, at 781. In 2004, Hess conducted a study analysing how the transparency of a debtor’s assets, the attachment of bank accounts, provisional enforcement, and protective measures contributed to the enforce- ment of a judgment. In this study, Hess introduces the idea of a European Protective Order for cross-border gar- nishment of bank accounts which could supplement the legal protection of creditors provided by the Brussels Regulation. BURKHARD HESS, STUDY NO. JAI/A3/2002/02 ON MAKING MORE EFFICIENT THE ENFORCEMENT OF JUDICIAL DECISIONS WITHIN THE EUROPEAN UNION: TRANSPARENCY OF DEBTORS ASSETS – ATTACHMENT OF BANK ACCOUNTS – PROVISIONAL ENFORCE- MENT AND PROTECTIVE MEASURES (2004), available at http://ec.europa.eu/civiljustice/publications/docs/enforcement_ judicial_decisions_180204_en.pdf (last visited last visited Mar. 13, 2017). 43 FRANZ MOHR, DIE VORLÄUFIGE KONTENPFÄNDUNG ¶ 18–43 (2014). 44 Mohr, supra note 43, at ¶ 48. 45 More extensively on this topic Nina Martin, Die europäische und die österreichische vorläufige Kontenpfändung, 3 JURISTISCHE AUSBILDUNG UND PRAXISVORBEREITUNG 163, 166–167 (2016/2017).