Page - 66 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Philipp Anzenberger / Tjaša Ivanc 66 An account according to point b could be held by either the competent enforcement authority, the court, the bank with which the debtor holds his or her account or a bank designated as a coordinating entity for the preservation in a given case (Recital 26 EAPO Regulation). Austrian civil procedure law, however, does not provide for an account dedicated for preservation purposes; the Austrian bank therefore has to implement the EAPO according to Art. 24 para. 2 point a EAPO Regulation.50 In Slovenia, a bank may transfer the amount to a special account for preservation purposes indicated in the EAPO.51 If the EAPO was implemented according to Art. 24 para. 2 point a EAPO Regulation, upon the request of the debtor, the bank is authorised to release funds preserved and transfer them to the account of the creditor for the purposes of paying the creditor’s claim (Art. 24 para. 3 EAPO Regulation). However, in such a case three cumulative conditions need to be met: 1. such authorisation of the bank is specifically indicated in the order according to point j of Art. 19 para. 2 (point a of Art. 24 para. 3 EAPO Regulation); 2. the law of the Member State of enforcement allows for such release and transfer (point b of Art. 24 para. 3 EAPO Regulation); and 3. there are no competing orders with regard to the account concerned (point c of Art. 24 para. 3 EAPO Regulation). Austrian civil procedure law entails no special provision reflecting Art. 24 para. 3 point b EAPO Regulation. However, there is no rule opposing such a fund release; it is therefore considered admissible if the creditor explicitly requests so in the application.52 Subject to the provisions of Chapter 3 of the Regulation, the EAPO shall be enforced in accordance with the procedures applicable to the enforcement of equivalent national orders in the Mem- ber State of enforcement (Art. 23 para. 1 EAPO Regulation). This subsidiary application of na- tional provisions reflects an attempt to build on the methods and structures already in place for the enforcement and implementation of equivalent national orders in the Member State of enforcement (Recital 23 EAPO Regulation). In Austrian law, the relevant provisions relating to the interim measures are laid down in §§ 378–402 EO.53 In Slovenia, equivalent orders are interim measures under the Slovenian enforcement law (Art. 266–279 ZIZ).54 2. Effects of the EAPO Evidently, one of the main effects of the EAPO is that it permits the bank to act according to the EAPO, while also making it liable for failure to comply with its obligations under the EAPO Regu- lation. This liability, however, is governed by the national law of the Member State of enforce- ment (Art. 26 EAPO Regulation), thus the consequences for a disregard of the EAPO can vary amongst the Member States. 50 Mohr, supra note 43, at ¶ 301. 51 Pogorelčnik Vogrinc, supra note 39, at 251. 52 Mohr, supra note 43, at ¶ 314. 53 Id., at ¶ 291. 54 There is a new amendment of enforcement law (amendment ZIZ-L) in the legislative procedure which explicitly states that for the procedure according to the EAPO Regulation, the provisions on interim measures shall be applied.