Page - 69 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Provisional Account Preservation Measures in European Civil Procedure Law 69 jurisdiction in the substance of the matter58). A Slovenian interim measure (or an interim measure originating from another Member State), however, would not be recognised, since the issuing court did not have jurisdiction as to the substance of the matter (cf. Art. 2 point a sub- point 2 Brussels Ia Regulation). If the creditor wishes to freeze an account in Slovenia, he can – apart from an EAPO – also apply for an interim measure in a Slovenian court according to Slo- venian law (Art. 35 Brussels Ia Regulation), or he can apply for an interim measure in Austria and enforce it in Slovenia if the requirements of Art. 42 para. 2 Brussels Ia Regulation are met. While ex parte interim measures are now considered judgments according to Article 2 point 1 subpara. 2 Brussels Ia Regulation, they have to be served on the defendant prior to the en- forcement of the measure,59 thereby diminishing the effectiveness of the interim measure.60 The EAPO, on the contrary, shall in any case be issued without prior hearing of the defendant (Art. 11 EAPO Regulation) in order to guarantee a surprise effect (Recital 15 EAPO Regulation). Therefore, if the creditor deems the surprise effect necessary to prevent the disappearance of the debtor’s assets, the EAPO will in many cases constitute a more efficient instrument to reach this goal.61 Another important difference between the respective interim measures relates to their imple- mentation and effects. The implementation of an EAPO is largely regulated in Chapter 3 of the EAPO Regulation; national law shall only apply subsidiarily (Art. 23 para. 1 EAPO Regulation). The implementation of an interim measure to be enforced according to the Brussels Ia Regulation, on the other hand, is governed purely by national law, as long as the latter guarantees that the measure has the same effects as in the Member State of origin. The effects of an EAPO are partly regulated in the EAPO Regulation; the rank of the EAPO, however, is determined by the rank of the closest national instrument in the Member State of enforcement (Art. 32 EAPO Regulation). In contrast, the effects of an interim measure to be enforced under the Brussels Ia Regulation are mostly determined by the law of the Member State of origin, although slight adaptations to the legal system of the Member State of enforcement are possible, if necessary (Art. 54 para. 1 Brussels Ia Regulation). This demonstrates that the appropriate choice of instruments can have a significant impact on the effects of the interim measure sought by the creditor. In practice, however, the debtor will often be less informed about the legal situation of the Member State of enforcement than about the one in the Member State of origin. This might make national interim measures appear more attractive than they actually are in comparison to an EAPO. The last difference we seek to address relates to the respective legal remedies in the Member State of enforcement. According to both Regulations, the violation of the ordre public in the Member State of enforcement as well as irregularities in the serving on the debtor constitute grounds for a legal remedy. Moreover, the Brussels Ia Regulation contains only two additional grounds for refusal of recognition and enforcement: incompatibility with a previous judgment as well as the violation of special provisions on the jurisdiction (Art. 45 para. 1 Brussels Ia Regula- tion). The EAPO Regulation – as a compensation for the surprise effect of the EAPO – provides several more grounds for terminating, as well as for limiting, the account preservation (Art. 34 EAPO Regulation), including the majority of grounds for revoking it in the Member state of origin 58 Cf. Garber, supra note 30, at 73; Leible, supra note 12, at Art. 35 Brüssel Ia-VO ¶ 2. 59 Franz Mohr, Neues im internationalen Exekutionsrecht – die Neufassung der EuGVVO (Brüssel-I VO), 2013 DER ÖSTER- REICHISCHE RECHTSPFLEGER 32, 35. 60 Garber, supra note 17, at 1074. 61 Cf. Domej, supra note 14, at 516; Martin, supra note 45, at 167.