Page - 65 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Provisional Account Preservation Measures in European Civil Procedure Law 65 When the debtor files an application to the competent court or enforcement authority in the Member State of enforcement, the enforcement of the EAPO shall be (Art. 34 EAPO Regulation): a. limited on the grounds that certain amounts held in the account should be exempt from seizure in accordance with Art. 31 para. 3 EAPO Regulation, or that amounts exempt from seizure have not, or not correctly, been taken into account in accordance with Art. 31 para. 2 EAPO Regulation (para. 1 point a). b. terminated on the grounds that: i. the account preserved is excluded from the scope of the Regulation pursuant to Art. 2 para. 3 and 4 EAPO Regulation (para. 1 point b subpoint i); ii. the enforcement of the enforcement title which the creditor was seeking to secure by means of the EAPO has been refused in the Member State of enforcement (para. 1 point b subpoint ii) or its enforceability has been suspended in the Member State of origin (para. 1 point b subpoint iii); iii. Art. 33 para. 1 points b, c, d, e, f or g EAPO Regulation apply (in that case Art. 33 para. 3, 4 and 5 apply as well). Hence, many of the grounds for a revocation or modifica- tion of the EAPO in the Member State of origin (for example if there was a flaw in the service or translation of relevant documents; points b and c can also be raised as grounds for the termination of enforcement in the Member State of enforcement;48 iv. it is manifestly contrary to the public policy (ordre public) of the Member State of enforcement (para. 2). Either party has the right to appeal against the decision of the court (Art. 37 EAPO Regulation). Also, upon application by the debtor the competent court or authority of the Member State of enforcement may terminate the enforcement of the EAPO if the debtor provides security (or an alternative assurance in a form acceptable under the law of the Member State of enforce- ment) in the amount preserved in that Member State (Art. 38 para. 1 point b EAPO Regulation). B. Implementation and Effects of the European Account Preservation Order 1. Implementation of the EAPO The rules for the implementation of the EAPO are laid down in Art. 24 EAPO Regulation. According to Art. 24 para. 2, a bank that was served an EAPO shall ensure that the amounts specified in this order (with the exception of the amounts stated in Art. 31 EAPO-Regulation) are preserved. The bank can do so: by ensuring that that amount is not transferred or withdrawn from the account or ac- counts indicated in the order or identified pursuant to para. 4 (point a);49 or where national law so provides, by transferring that amount to an account dedicated for preservation purposes (point b). 48 Martin Trenker, Vorläufige Kontenpfändung: Überblick und ausgewählte Rechtsfragen, in 4 EUROPÄISCHES ZIVILVERFAH- RENSRECHT IN ÖSTERREICH – DIE NEUE BRÜSSEL IA-VERORDNUNG UND WEITERE REFORMEN 129, 149 (Bernhard König & Peter G. Mayr eds., 2015). 49 Indeed, in practice, claimants regard bank accounts as priority targets for blocking debtors’ assets. When this measure is in effect, it represents a delicate situation for the debtor whose funds in the bank account are im- portant mainly for his or her daily living or business purposes. NICOLAS KYRIAKIDES, A EUROPEAN-WIDE PRESERVATION ORDER: HOW THE COMMON LAW PRACTICE CAN CONTRIBUTE (2014), available at https://www.harriskyriakides.law/as- sets/pdf_files/EAPO-EUArticle.pdf (last visited Aug. 14, 2017).