Page - 68 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Philipp Anzenberger / Tjaša Ivanc 68 can be held liable for paying compensation to the creditor. The preserved amount remains fro- zen until the bank receives the decision on its termination. Until then, the amount preserved is secured either by freezing the debtor’s account or transferring this amount to a special account. However, the effect of freezing the debtor’s account does not necessarily provide complete protection for the creditor. The funds may be transferred in an enforcement procedure where another creditor requires repayment of the claim from the debtor's assets. The issuing of an interim order to freeze the debtor’s account does not, therefore, result in the formation of a lien on the subject of the insurance. If the conditions for the preliminary measure are met, the credi- tor may not apply for interim measures. However, the preliminary measure must achieve the same purpose in securing the claim as the interim measure (Art. 269 ZIZ). The preliminary measure according to the Slovenian law may be compared with the Austrian Exekution zur Sicher- stellung, which means that the EAPO will have priority over subsequent enforcement acts from other creditors. IV. Comparison of the Legal Instruments – Discussion The following section seeks to highlight some of the most important differences between the Brussels Ia Regulation and the EAPO Regulation regarding effective account preservation in other European Member States. Evidently, the key distinction is that the Brussels Ia Regulation only regulates the recognition and enforcement of national (for our purpose: preliminary) titles, whereas the EAPO Regulation creates a genuine European interim measure. However, there are also several other, slightly more subtle divergences between these two instruments that are worth noting. The first point of interest relates to the different scopes of the two regulations. As far as recog- nition and enforcement go, both regulations – in their respective Chapter III – enable the free movement of provisional account preservation measures by generally granting enforceability to national measures (Art. 39 Brussels Ia Regulation) and to an EAPO (Art. 22 EAPO Regulation) without the need for a prior declaration of enforceability. As far as the issuing of the actual provisional measure is concerned, Chapter II of the Brussels Ia Regulation “only” contains rules on international (and in some parts territorial) jurisdiction, while Chapter 2 of the EAPO Regula- tion provides for an entire and genuine procedure on the issuing of a European Account Preser- vation Order. The divergent conceptions of what is to be regarded a “cross-border case”, the different regimes of jurisdiction as well as disparities in the requirements for recognition and enforcement, however, lead to a rather complex pattern of applicability of the two Regulations, as it shall be shown in the following example: Example A Slovenian creditor is suing an Austrian debtor at an Austrian court. He applies for an EAPO at this court according to Art. 6 EAPO Regulation. The requirement of a cross-border case is ful- filled if the creditor seeks to freeze a bank account in Slovenia (Art. 3 para. 1 point a EAPO Regula- tion) or in Austria (Art. 3 para. 1 point b EAPO Regulation) as well as in any other Member State (with the exception of the United Kingdom (Recital 50 EAPO Regulation) and Denmark (Recital 51 EAPO Regulation)). If the creditor seeks to freeze a bank account in Austria, he can also use the interim measures available in Austrian civil procedure law for this purpose (since the interna- tional jurisdiction for preliminary measures is automatically given when there is international