Page - 64 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Philipp Anzenberger / Tjaša Ivanc 64 is obtained (Art. 5 EAPO Regulation). In order to apply for a Preservation Order, the creditor uses a standard form and provides the information requested in Art. 8 EAPO Regulation. The proce- dure is generally written and based on the information and evidence provided by the creditor (Art. 9 EAPO Regulation). The debtor shall not be notified of the application for a Preservation Order or be heard prior to the issuing of the Order (ex parte procedure; Art. 11 EAPO Regulation). An EAPO may be issued when two conditions are present: first, an urgent need for an 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 (Art. 7 para. 1 EAPO Regulation);46 second, the creditor’s likeliness to succeed on the substance of his claim against the debtor. However, the second requirement only needs to be fulfilled if the credi- tor has not yet obtained, in a Member State, a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim (Art. 7 para. 2 EAPO Regulation). 2. Procedural Aspects Chapter 2 governs the entire procedure for issuing an EAPO; this paper, however, seeks to high- light only two procedural points that are of interest for our comparison. One is that the debtor shall not be notified of the application for a Preservation Order or be heard prior to the issuing of the Order (Art. 11 EAPO Regulation). This shall ensure the surprise effect of the Preservation Order, helping to make it a useful tool for a creditor trying to recover debts from a debtor in cross-border cases (Recital 15 EAPO Regulation). Moreover, in accordance with the recent developments in European civil procedure law, the EAPO shall be recognised in other Member States without any special procedure being required and is enforceable without a declaration of enforceability (Art. 22 EAPO Regulation). In return for these benefits to the creditor, the EAPO Regulation includes a number of safeguards for the debtor, such as the obligation of a creditor to provide security (Art. 12 EAPO Regulation), a credi- tor’s liability for damage (Art. 13 EAPO Regulation), and numerous remedies against the EAPO. 3. Legal Remedies Art. 32–39 of the EAPO Regulation contain a rather complex system of legal remedies.47 Some legal remedies are available to the creditor only (Art. 35 para. 4 EAPO Regulation); some apply only to the debtor in the Member State of origin (Art. 33 EAPO Regulation) or in the Member State of enforcement (Art. 34 EAPO Regulation), whereas some can be invoked by both the debtor and the creditor (Art. 35 para. 1 and 3 EAPO Regulation). The procedure for these reme- dies is laid down in Article 36 EAPO Regulation. Seeking to compare the Brussels Ia Regulation and the EAPO Regulation, the legal remedies provided for the debtor in the Member State of enforcement are highlighted below. 46 As the Regulation does not detail how “urgent need” and “real risk” should be proved by a creditor and measured by a court, there is a concern that different interpretations of these prerequisite standards will arise throughout the EU Member States; cf. Mirela Župan, Cross-border recovery of maintenance taking account of the new European Account Preservation Order (EAPO), 16 ERA FORUM 163, 172 (2015). 47 For an overview cf. Cranshaw, supra note 2, at 409–410; Domej, supra note 9, at 130–132; Mohr, supra note 43, at ¶ 361–448.