European Account Preservation Orders – a new pro-creditor enforcement mechanism under Luxembourg law
On 18 January 2017, EU Regulation n°655/2014 establishing a European Account Preservation Order (« EAPO« ) procedure became fully applicable in all Member States, with the exception of Denmark and the United Kingdom.
The Regulation aims to facilitate the collection of claims in civil and commercial matters by introducing a uniform European procedure for identifying and freezing funds held in a debtor’s bank account(s) in another Member State. This increased transparency in terms of a debtor’s assets is a particularly new development for Luxembourg.
However, the Regulation has left it to Member States to determine the method of enforcement.
The Luxembourg parliament has just passed a new law (Act n°7203) introducing a very straightforward enforcement procedure for EAPOs, in line with existing enforcement measures under national law.
Already known as a favourable place for enforcement, mainly due to the possibility of attaching assets through a saisie-arrêt, Luxembourg has taken a further step towards becoming an « enforcement paradise » by facilitating the enforcement of an EAPO.
Until now it has been possible to quickly attach assets in Luxembourg, but only provided you knew where to look.
The EAPO procedure enables a creditor to seek the assistance of local authorities to identify the bank(s) holding funds of the debtor. Furthermore, the new Act allows the fast conversion of an EAPO into an order for payment. Creditors will thus have a complete set of « tools », all the way from the conservatory phase to the enforcement/execution phase.
From EAPO to payment in a single step
Under the new Act, once an enforceable judgment awarding the creditor’s claim has been obtained, the creditor can simply instruct a bailiff to serve a conversion notice (acte de conversion) on the bank(s) and on the debtor.
This conversion notice must include (i) a copy of the EAPO, (ii) if applicable, any judicial decision amending the EAPO, (iii) a copy of the judgment, (iv) a final statement of the amount due and (v) a formal demand for the payment of that amount.
The debtor must act quickly following service of the conversion notice: if he/it does not file an opposition to the notice within fifteen days (one to two months for parties outside Luxembourg), the relevant amount is immediately payable without the need for court intervention.
There are very limited grounds for filing an opposition to a conversion notice. If an opposition is filed, it will be dealt with relatively rapidly by the court and the court’s decision will be final and binding (no appeal possible).
The new Act is expected to enter into force before the end of July 2018 and will undoubtedly confirm Luxembourg’s status as an « enforcement hot spot ».
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