Page - 67 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Provisional Account Preservation Measures in European Civil Procedure Law 67 Additionally, an EAPO can have an effect on other creditors: Art. 32 EAPO Regulation states that an EAPO shall have the same rank, if any, as an equivalent national order in the Member State of enforcement (Art. 32 EAPO Regulation).55 Pursuant to Recital 28 of the Regulation, if un- der national law certain enforcement measures have priority over preservation measures, the same priority should be given to them in relation to preservation orders. Furthermore, Recital 28 states that if there are national in personam orders, those orders should be considered as the “equivalent national order” for the purpose of this Regulation. Art. 32 EAPO Regulation therefore ensures that the EAPO fits into the national system of provisional measures and enforcement law by determining what other national (or even foreign, such as the interim measures that fall within the Brussels Ia regime) provisional measures, enforcement acts or even contractual obligations have priority over the EAPO. As a result, the EAPO has a very similar effect for the debtor and the bank in every Member State, whereas the effect (the rank) for third persons largely depends on the rank of the instruments provided by national law. For the purpose of transparency, the Member States shall communicate to the Commission whether any ranking is conferred on equivalent national orders under national law (Art. 50 para. 1 point k EAPO Regulation). There was a debate in Austrian literature on whether an “equivalent national order” should be understood as an interim measure (Einstweilige Verfügung under § 379 EO) or a security enforce- ment (Exekution zur Sicherstellung under §§ 370–377 EO).56 The distinction is particularly important in this case, because an interim measure does not have an in rem effect, whereas a security en- forcement creates an actual lien (granting an in rem effect), giving it priority over subsequent enforcement acts from other creditors. The Austrian legislature reacted by creating an explicit provision in § 422 EO which stipulates that the rules on interim measures shall generally be applicable where the EAPO Regulation contains no deviating provisions (§ 422 para. 1 EO). How- ever, where the EAPO is issued after the creditor has obtained a judgment, court settlement or authentic instrument, the service on the bank shall create an executive lien (§ 422 para. 2 EO). In Slovenia, the legislature appears to follow the Austrian example. Under the proposed amendment of the Slovenian enforcement law, the rules on interim measures will apply unless the EAPO Regulation or national provisions, in the chapter that implements the regulation, pro- vide otherwise. Where the EAPO is issued after the creditor has obtained a court decision or the decision of another authority which is not yet enforceable, the rules on the preliminary measure (predhodna odredba) will be applicable. A court may specify attachment of a sum of money to the debtor’s account at the bank (Art. 260 para. 1 point 4 ZIZ). Also, as a precautionary measure, the ZIZ allows securing by establishing a lien on the collateral object.57 If the EAPO is issued before the creditor has obtained a court decision (Art. 267 ZIZ), the provisions on the interim measure (začasna odredba) shall be applicable. However, the interim measure does not give basis for the establishment of a lien or the right to a priority for the creditor. A court’s decree blocking funds can only interfere with the sphere of the debtor. As soon as it comes into effect, the bank cannot legally fulfil any obligations to the debtor (Art. 271 para. 1 point 4 ZIZ) and 55 In the Proposal for a Regulation Creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters this regulation was proposed with slightly different text, i.e. “The EAPO confers the same rank as an instrument with equivalent effect under the law of the Member State where the bank account is located”. 56 Mohr, supra note 43, at ¶ 311–312; Trenker, supra note 48, at 151–152. 57 Vesna Rijavec, Začasne odredbe v arbitražnem postopku, 1 SLOVENSKA ARBITRAŽNA PRAKSA 9, 12 (2012), available at http://www.sloarbitration.eu/Portals/0/Prispevki/revijSA_2012_01_Rijavec.pdf (last visited Mar. 13, 2017).